Water Quality Standards Regulation
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Federal Register › Vol. 63 › 63 FR 36742
Text
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 131
Water Quality Standards Regulation; Proposed Rule
Proposed Rules
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-0W-6118-9]
RIN-2040-AC56
Water Quality Standards Regulation
AGENCY: Environmental Protection Agency.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: EPA is today publishing this advance notice of proposed rule
making (ANPRM) seeking comments from interested parties on possible
revisions to the Water Quality Standards Regulation at 40 CFR Part 131.
This ANPRM is intended to initiate discussions on what if any changes
are needed in the national water quality standards program to improve
the effectiveness of water quality standards in restoring and
maintaining the quality of the Nation's waters. EPA will consider all
comments before deciding whether to propose revisions to the
regulation. EPA is particularly interested in comments on certain key
portions of the current Water Quality Standards Regulation (the
regulation) contained in 40 CFR Part 131, which establishes
requirements for adoption of water quality standards pursuant to
section 303 of the Clean Water Act (CWA or the Act). This ANPRM
identifies specific issues on which EPA solicits comment. In addition
to the specific issues on which EPA solicits comments, EPA is
interested in comments on any other aspects of the program. EPA
requests comments with the objectives of: supporting watershed or
place-based environmental water quality management, ensuring that
current water quality criteria and water quality assessment science can
be easily incorporated into State and Tribal water quality programs,
and enhancing effective implementation of the Act.
DATES: Written comments must be submitted by midnight January 4, 1999.
requests comments with the objectives of: supporting watershed or
place-based environmental water quality management, ensuring that
current water quality criteria and water quality assessment science can
be easily incorporated into State and Tribal water quality programs,
and enhancing effective implementation of the Act.
DATES: Written comments must be submitted by midnight January 4, 1999.
ADDRESSES: Send written comments to W-98-01, WQS-ANPRM Comment Clerk,
Water Docket, MC 4101, US EPA, 401 M Street, S.W., Washington, D.C.
20460. Comments may also be submitted electronically to OW-
D[email protected]. The record is available for inspection from
9:00 to 4:00 p.m., Monday through Friday, excluding legal holidays at
the Water Docket, East Tower Basement, USEPA, 401 M St., S.W.,
Washington, D.C. For access to docket materials, please call (202) 260-
3027 to schedule an appointment.
FOR FURTHER INFORMATION CONTACT: Rob Wood at U.S. EPA Standards and
Applied Science Division (4305), 401 M Street SW, Washington, DC 20460
(e-mail: [email protected]) (telephone: 202-260-9536).
SUPPLEMENTARY INFORMATION: EPA will hold a series of full-day public
meetings for the purpose of discussion and debate on the issues
presented in this notice. EPA plans to hold the public meetings during
the 180-day public comment period on this notice. Dates, times and
locations of public meetings will be announced to the public.
A. Potentially Affected Entities
) (telephone: 202-260-9536).
SUPPLEMENTARY INFORMATION: EPA will hold a series of full-day public
meetings for the purpose of discussion and debate on the issues
presented in this notice. EPA plans to hold the public meetings during
the 180-day public comment period on this notice. Dates, times and
locations of public meetings will be announced to the public.
A. Potentially Affected Entities
This ANPRM by itself will have no regulatory impact or effect. The
ANPRM does contain EPA interpretations of core areas of the regulation
as well as EPA thinking about how the regulation may need to be
changed. As discussed in more detail below, this ANPRM marks the
beginning of a national dialogue on possible changes to the water
quality standards regulation and program. If changes to the regulation
are proposed and ultimately made final, to the extent such changes
would require and/or authorize changes to State and Tribal water
quality standards, States and authorized Tribes would be affected. If
changes to State and Tribal water quality standards result from any
final rule that EPA may promulgate in the future, entities subject to
compliance with State or Tribal water quality standards would also
potentially be affected. For example, States and Tribes authorized to
implement the National Pollutant Discharge Elimination System (NPDES)
Permit Program would need to ensure that permits they issue include any
limitations on discharges necessary to comply with any water quality
standards established as a result of any subsequent final rulemaking.
Therefore, entities discharging pollutants to waters of the United
States under NPDES could be affected by subsequent proposed and final
rulemaking. Categories and entities that may ultimately be affected
include:
nsure that permits they issue include any
limitations on discharges necessary to comply with any water quality
standards established as a result of any subsequent final rulemaking.
Therefore, entities discharging pollutants to waters of the United
States under NPDES could be affected by subsequent proposed and final
rulemaking. Categories and entities that may ultimately be affected
include:
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Examples of potentially
Category affected entities
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State, Tribes and Jurisdictional States, Tribes authorized to
Governments. administer water quality
standards, and jurisdictional
governments.
Industry............................... Industrial dischargers of
pollutants to waters of the
U.S.
Municipalities......................... Publicly-owned treatment works
discharging pollutants to
waters of the U.S.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities that could be affected by any
subsequent final rulemaking. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
B. Water Docket Information
The record for this notice has been established under docket number
W-98-01 and includes supporting documentation. When submitting written
comments to the Water Docket, (see ADDRESSES section above) please
reference docket number [W-98-01] and submit an original and three
copies of your comments and enclosures (including references). To
ensure that EPA can read, understand and therefore properly respond to
comments, the Agency would prefer that commenters cite the specific
question(s) in the notice to which each comment refers
comments to the Water Docket, (see ADDRESSES section above) please
reference docket number [W-98-01] and submit an original and three
copies of your comments and enclosures (including references). To
ensure that EPA can read, understand and therefore properly respond to
comments, the Agency would prefer that commenters cite the specific
question(s) in the notice to which each comment refers. The questions
presented in this notice for public comment are organized by subsection
and numbered. Each question has a unique number (for example
III.B.3.a., question 1) for this purpose.
Comments must be received or postmarked by midnight January 4,
1999. Commenters who want EPA to acknowledge receipt of their comments
should enclose a self-addressed, stamped envelope. No facsimiles
(faxes) will be accepted.
Electronic comments are encouraged and may be submitted to the
Water Docket (see ADDRESSES section above). Electronic comments must be
submitted as an ASCII file or a WordPerfect file avoiding the use of
special characters and any form of encryption. Electronic comments must
be identified by the docket number, [W-98-01], and be received by
midnight of January 4, 1999. Comments and data will also be accepted on
disks in WP5.1 format or
ASCII file format. No confidential business information (CBI) should be
sent via e-mail.
The remainder of this Supplementary Information section is
organized as follows:
racters and any form of encryption. Electronic comments must
be identified by the docket number, [W-98-01], and be received by
midnight of January 4, 1999. Comments and data will also be accepted on
disks in WP5.1 format or
ASCII file format. No confidential business information (CBI) should be
sent via e-mail.
The remainder of this Supplementary Information section is
organized as follows:
I. Purpose and Objectives of This ANPRM
A. General Purpose and Vision
B. Objectives
II. Introduction to Water Quality Standards
A. Statutory History
B. Regulatory History
C. Water Quality Guidance for the Great Lakes System
III. Program Areas for Public Comment
A. Introduction
B. Uses
1. Background
2. Refined Designated Uses
3. Existing Uses
a. Protection of Existing Uses
4. Use Attainability
a. Attainability of Uses
b. Removal of Designated Uses
c. Use Attainability Analysis
d. Alternatives to ``Downgrade'' of the Designated Use
i. Variances
ii. Temporary Standards
iii. Ambient-based Criteria
C. Criteria
1. Background
2. Ambient Water Quality Criteria to Protect Aquatic Life
3. Site-Specific Criteria
4. Narrative Water Quality Criteria
5. State or Tribe Derived Criteria
6. Water Quality Criteria for Priority Pollutants
7. Criteria for Non-Priority Pollutants with Toxic Effects
8. Criteria Where Data or Guidance is Limited
9. Toxicity Criteria
10. Sediment Quality Criteria
11. Biological Criteria
12. Wildlife Criteria
13. Physical Criteria
14. Human Health
a. Risk Levels
b. Fish Consumption Assumptions
c. Maximum Contaminant Levels
15. Microbiological Criteria
16. Nutrient Criteria
D. Antidegradation
1. Background
2. General Description of Antidegradation
3. 40 CFR 131.12 (a)(1) ``tier 1''
a. Tier 1 Implementation
4. 40 CFR 131.12 (a)(2) ``tier 2''
a. Identification of ``High Quality'' Waters
b. Tier 2 Implementation
i. Triggers for tier 2 Review
ii. ``Necessary'' Lowering of Water Quality
iii. Identification of ``Important'' Social or Economic
Activities
iv
ria
D. Antidegradation
1. Background
2. General Description of Antidegradation
3. 40 CFR 131.12 (a)(1) ``tier 1''
a. Tier 1 Implementation
4. 40 CFR 131.12 (a)(2) ``tier 2''
a. Identification of ``High Quality'' Waters
b. Tier 2 Implementation
i. Triggers for tier 2 Review
ii. ``Necessary'' Lowering of Water Quality
iii. Identification of ``Important'' Social or Economic
Activities
iv. Tier 2 and Identification of Waters under CWA Section 303(d)
v. Achieving all cost-effective and reasonable best management
practices for nonpoint sources
5. 40 CFR 131.12 (a)(3) ``tier 3''
a. Designating ONRWs
i. Relationship of tier 3 to the Wild and Scenic Rivers Act
b. Tier 3 Implementation
c. Tier 2\1/2\
6. 40 CFR 131.12 (a)(4) ``Thermal Discharges''
E. Mixing Zones
1. Background
2. EPA Policy and Guidance on Mixing Zones
3. State and Tribal Mixing Zone Policies
4. Mixing Zone Requirements
5. Mixing Analyses
6. Narrative Criteria for Mixing Zones
7. Mixing Zones for Bioaccumulative Pollutants
8. Stream Design Flow Policies
F. Wetlands as Waters of the United States
G. Independent Application Policy
1. Introduction
a. Biological Assessments
b. Toxicological Assessments
c. Chemical Assessments
2. Independent Application and Water Quality Assessments
a. Independent Application
b. Alternatives to Independent Application
3. Independent Application and NPDES Permitting
a. Independent Application
b. Alternatives to Independent Application
IV. Summary and Potential Program and Regulation Changes
V. Regulatory Assessment Requirements
A. Executive Order (E.O.) 12866, Regulatory Planning and Review
B. The Regulatory Flexibility Act (RFA) as Amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996
C. Paperwork Reduction Act
I. Purpose and Objectives of This ANPRM
A. General Purpose and Vision
Application
IV. Summary and Potential Program and Regulation Changes
V. Regulatory Assessment Requirements
A. Executive Order (E.O.) 12866, Regulatory Planning and Review
B. The Regulatory Flexibility Act (RFA) as Amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996
C. Paperwork Reduction Act
I. Purpose and Objectives of This ANPRM
A. General Purpose and Vision
On February 14, 1998, the visionary ``Clean Water Action Plan'' was
announced by the Administrator of EPA and the Secretary of Agriculture.
The ``Clean Water Action Plan'' is a blueprint for restoring and
protecting the Nation's precious water resources. A key element of the
plan is advancement of the watershed approach to water quality
protection. EPA's belief is that refining designated uses and
implementing better more integrated water quality criteria to protect
the refined uses, two important themes of this ANPRM, are essential
steps in carrying out the blueprint presented. Revision of the water
quality standards regulation can be an essential component in
implementing the vision of the ``Clean Water Action Plan.''
States, Tribes and EPA have developed functional water quality
standards programs under the current regulation and these programs have
provided the basis for significant water quality improvement in the
United States. Simply put, the current regulation is not broken.
Rather, with the renewed interest in watershed management combined with
improved methods for water quality assessment, a comprehensive
evaluation for the purpose of strengthening the regulation is
appropriate at this time. EPA and the public need to examine whether
changes in the regulation could enhance water quality management on a
watershed basis and focus resources on areas of greatest concern
r, with the renewed interest in watershed management combined with
improved methods for water quality assessment, a comprehensive
evaluation for the purpose of strengthening the regulation is
appropriate at this time. EPA and the public need to examine whether
changes in the regulation could enhance water quality management on a
watershed basis and focus resources on areas of greatest concern. A
review of the regulation will also complement similar outreach
discussions EPA is currently undertaking for the purposes of reviewing
the water quality planning and management and total maximum daily load
(TMDL) programs as well as aspects of the NPDES program. EPA is
committed to ensuring that these programs, combined, form an even
stronger integrated basis for water quality planning, priority setting
and implementation on a watershed basis.
In recent years there has been a rising level of scrutiny placed on
water quality standards and the State, Tribal and EPA decisions based
on water quality standards. The increased scrutiny comes from virtually
all parties affected by water quality-based decisions and is evidenced
by the growing tide of challenges to State standards, EPA policies and
guidance, and individual water quality-based decisions. Remaining water
quality problems in the U.S. are often difficult to assess, define and
solve. Once agreed upon, the solutions will be less conventional than
we are used to and may result in different regulatory approaches.
Examples of such problems include aquatic and riparian habitat
destruction from municipal and agricultural run-off and fish tissue
contamination from chemicals with many and diverse sources.
EPA believes that this scrutiny will continue and that an
evaluation of the water quality standards program and its regulatory
and policy underpinnings to identify where these program underpinnings
may need to be strengthened, clarified or revised is imperative
itat
destruction from municipal and agricultural run-off and fish tissue
contamination from chemicals with many and diverse sources.
EPA believes that this scrutiny will continue and that an
evaluation of the water quality standards program and its regulatory
and policy underpinnings to identify where these program underpinnings
may need to be strengthened, clarified or revised is imperative. Our
task under the Clean Water Act is to ensure adequate water quality even
where it is difficult to do so. To accomplish this task, EPA envisions
a national water quality standards program in which: the best possible
information on whether designated uses are being attained and how to
attain and maintain them is available and used; water quality criteria
are selected from a wide-ranging menu of scientifically sound criteria
that can be tailored to each watershed; national norms of consistency
and flexibility in State and Tribal water quality standards are clear;
and innovative, cost-effective approaches are
encouraged. To realize this vision, EPA believes that a structured
national debate is needed to identify a focused set of issues that may
ultimately lead to changes to the water quality standards regulation
and policy.
The ANPRM process allows EPA to begin this work by consulting with
all interested parties to find out what changes, if any, are necessary
and desirable, to make the water quality standards regulation more
responsive to current needs and to identify opportunities for further
clarifications of policy and guidance by EPA. In the fourteen years
since EPA last revised the water quality standards regulation,
interested parties have gained considerable experience in developing
and implementing water quality standards. This experience will provide
valuable information for review of these regulations.
The most significant shift in water quality management programs in
recent years has been the increased emphasis on the use of watershed
based programs
t revised the water quality standards regulation,
interested parties have gained considerable experience in developing
and implementing water quality standards. This experience will provide
valuable information for review of these regulations.
The most significant shift in water quality management programs in
recent years has been the increased emphasis on the use of watershed
based programs. It is increasingly apparent that EPA, States, Tribes,
municipalities and the public share a common view that water quality
programs, including water quality standards, can be better tailored to
the characteristics, problems, risks and implementation tools available
in individual watersheds or basins with meaningful involvement of the
local communities. The water quality standards regulation should ensure
that States and Tribes have the flexibility to define the water quality
standards and hence the environmental objectives of a water body
according to the characteristics of the ecosystem and the needs of the
water's users within the bounds established under the CWA. The
regulation must allow the States and Tribes to tailor water body use
designations and criteria to protect these uses within individual
basins or watersheds based on the needs in the basin. The present use
of broad, jurisdiction-wide use classifications and lists of associated
chemical criteria may be at once too general and too narrow for some
waters, lacking the refinement necessary to tailor water quality
management actions to specific watersheds. This general approach
reflects the historical lack of information on specific basins or water
bodies and the need to ensure that all waters receive adequate
protection. Additionally, it should be made clear how much flexibility
States and Tribes have to adjust use designations as information
improves about whether a designated use or a higher use can be attained
and to reflect natural and human caused changes in water quality that
may have occurred
rmation on specific basins or water
bodies and the need to ensure that all waters receive adequate
protection. Additionally, it should be made clear how much flexibility
States and Tribes have to adjust use designations as information
improves about whether a designated use or a higher use can be attained
and to reflect natural and human caused changes in water quality that
may have occurred. The challenge for EPA, States and Tribes is to
identify and use opportunities to refine use designations for waters
where it makes sense and better match the water quality criteria to the
refined use, thus making water quality standards more flexible. In
addition, to more effectively implement the standards, the criteria
that are used need to better integrate multiple stressors and their
cumulative impacts in order to more effectively protect designated
uses.
Significant scientific advancements in recent years have added to
the ability to assess environmental impacts and risks related to
changes in water quality. As they are further developed, new and
emerging sophisticated and integrated analytical tools such as
bioassessment, criteria for bioaccumulative chemicals, sediment quality
criteria and toxicity assessments will increasingly allow States,
Tribes, EPA and the public to characterize better the ecological
condition of water resources. At present, this improving capability,
used in a tailored watershed planning and management framework, can
enhance the ability of States and Tribes to characterize and protect
locally agreed upon goals for maintaining and protecting the chemical,
physical and biological integrity of individual basins. In the long
term, chemical, physical and biological assessment methods will
continue to improve. As they do, the water quality standards program
should be designed to accommodate effectively the new science. In the
meantime, progress should not be stalled by incomplete knowledge
eed upon goals for maintaining and protecting the chemical,
physical and biological integrity of individual basins. In the long
term, chemical, physical and biological assessment methods will
continue to improve. As they do, the water quality standards program
should be designed to accommodate effectively the new science. In the
meantime, progress should not be stalled by incomplete knowledge.
With the new science and assessment methodologies, however, come
new challenges for States and Tribes to identify the resources
necessary to make use of these advances. One of the main themes of this
ANPRM is the need for better data, and new types of data, in order to
support a more refined approach to water quality protection. EPA
recognizes, however, that efforts to obtain such data, and develop the
analytical capacity to integrate it into existing regulatory programs,
could encounter significant resource constraints in some States and
Tribes. EPA is well aware that in order for a new, data-intensive,
watershed-specific approach to succeed, it must be workable for the
States and Tribes that will have to implement it. EPA welcomes comments
regarding concerns over resource constraints and ideas for how to
address them.
The water quality standards program must protect the nation's
waters as envisioned in the CWA. It must establish requirements that
are necessary to attain and maintain healthy, sustainable ecosystems.
It must be flexible enough for States and Tribes to ensure that
standards are protecting water quality in a way that makes sense. EPA
seeks to avoid a program that results in costly requirements that have
little or no environmental benefit
ct the nation's
waters as envisioned in the CWA. It must establish requirements that
are necessary to attain and maintain healthy, sustainable ecosystems.
It must be flexible enough for States and Tribes to ensure that
standards are protecting water quality in a way that makes sense. EPA
seeks to avoid a program that results in costly requirements that have
little or no environmental benefit. Thus EPA intends to use its
experience and that of the States, Tribes, municipalities, the
regulated community, environmental groups and the general public in
implementing and utilizing water quality standards over the last
fourteen years, to evaluate the regulation and determine if changes are
needed to allow greater State, Tribal and local flexibility to develop
innovative, cost-effective ways to protect water quality.
EPA may determine through the ANPRM process that the concepts
described above can be better integrated into water quality management
decision making through development of new or revised policies and
guidance rather than revisions to the regulation. Because of this
possibility, EPA is reserving its decision whether to propose and
finalize revisions to the regulation. At minimum, EPA believes that any
revisions to the water quality standards regulation should result in a
regulation that can be used to render protective, tailored, site-
specific water quality-based decisions that bear reasonable compliance
costs for the regulated community, as well as reasonable implementation
costs for States, Tribes and EPA. At the same time, the regulation
should allow sufficient flexibility to States and Tribes, if they
choose, to implement water quality standards programs in a manner that
is no more burdensome than under the existing regulation.
B. Objectives
ased decisions that bear reasonable compliance
costs for the regulated community, as well as reasonable implementation
costs for States, Tribes and EPA. At the same time, the regulation
should allow sufficient flexibility to States and Tribes, if they
choose, to implement water quality standards programs in a manner that
is no more burdensome than under the existing regulation.
B. Objectives
In publishing this ANPRM, EPA is beginning a review of the
regulation in a public forum in an attempt to identify possible
amendments to the regulation, and new guidance or policy that may be
needed to address three distinct objectives. They are: (1) to eliminate
any barriers and develop incentives to enhance State and Tribal
implementation of watershed-based water quality planning and
management; (2) to enhance State and Tribal capability to incorporate
current criteria and water quality assessment science into their water
quality standards programs, and; (3) to improve the regulation so that
it may be implemented more efficiently and effectively (including cost-
effectively). Meeting these three objectives, EPA believes, will
facilitate further water
quality improvements locally and nationally. EPA urges commenters to
keep all three main objectives in mind when reviewing, analyzing and
commenting on this ANPRM.
II. Introduction to Water Quality Standards
A. Statutory History
The first comprehensive legislation for water pollution control was
the Water Pollution Control Act of 1948 (Pub. L. 845, 80th Congress).
This law adopted principles of State-Federal cooperative program
development, limited federal enforcement authority, and limited federal
financial assistance. These principles were continued in the Federal
Water Pollution Control Act (Pub. L. 660, 84th Congress) in 1956 and in
the Water Quality Act of 1965. Under the 1965 Act, States were directed
to develop water quality standards establishing water quality goals for
interstate waters
cooperative program
development, limited federal enforcement authority, and limited federal
financial assistance. These principles were continued in the Federal
Water Pollution Control Act (Pub. L. 660, 84th Congress) in 1956 and in
the Water Quality Act of 1965. Under the 1965 Act, States were directed
to develop water quality standards establishing water quality goals for
interstate waters. By the early 1970's, all the States had adopted such
water quality standards. Since then, States have revised their
standards to reflect new scientific information, the impact on water
quality of economic development and the results of water quality
controls.
Due to enforcement complexities and other problems, an approach
based solely on water quality standards was deemed too weak to make a
difference. The purely water quality-based approach prior to 1972
lacked enforceable Federal mandates and standards, and a strong impetus
to implement plans for water quality improvement. The result was an
incomplete program that in Congress' view needed strengthening. In the
Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92-500,
Clean Water Act or CWA), Congress established the National Pollutant
Discharge Elimination System (NPDES) whereby each point source
discharger to waters of the U.S. is required to obtain a discharge
permit. The 1972 Amendments required EPA to establish technology-based
effluent limitations that are to be incorporated into NPDES permits. In
addition, the amendments extended the water quality standards program
to intrastate waters and required NPDES permits to be consistent with
applicable State water quality standards. Thus, the CWA established
complementary technology-based and water quality-based approaches to
water pollution control
lish technology-based
effluent limitations that are to be incorporated into NPDES permits. In
addition, the amendments extended the water quality standards program
to intrastate waters and required NPDES permits to be consistent with
applicable State water quality standards. Thus, the CWA established
complementary technology-based and water quality-based approaches to
water pollution control. Now, after nearly 25 years of investment in
technology-based controls and some $70 billion in sewage treatment
plant construction, attention is turning back to water quality
standards as a mechanism to make improvements in water quality beyond
those that have been achieved through technology-based controls.
Water quality standards serve as the foundation for the water-
quality based approach to pollution control and are a fundamental
component of watershed management. Water quality standards are State or
Tribal law or regulation that: define the water quality goals of a
water body, or segment thereof, by designating the use or uses to be
made of the water; set criteria necessary to protect the uses; and
protect water quality through antidegradation provisions. Although the
CWA gives EPA an important role in determining appropriate minimum
levels of protection and providing national oversight, it also gives
considerable flexibility and discretion to States and Tribes to design
their own programs and establish levels of protection above the
national minimum. States and Tribes adopt water quality standards to
protect public health or welfare, enhance the quality of water, and
serve the purposes of the Act
ing appropriate minimum
levels of protection and providing national oversight, it also gives
considerable flexibility and discretion to States and Tribes to design
their own programs and establish levels of protection above the
national minimum. States and Tribes adopt water quality standards to
protect public health or welfare, enhance the quality of water, and
serve the purposes of the Act. ``Serve the purposes of the Act'' (as
defined in Sections 101(a), 101(a)(2), and 303(c) of the Act) means
that water quality standards should: (1) include provisions for
restoring and maintaining chemical, physical, and biological integrity
of State and Tribal waters, (2) provide, wherever attainable, water
quality for the protection and propagation of fish, shellfish, and
wildlife and recreation in and on the water (``fishable/swimmable''),
and (3) consider the use and value of State and Tribal waters for
public water supplies, propagation of fish and wildlife, recreation,
agricultural and industrial purposes, and navigation. See 40 CFR 131.2.
Section 303(c) of the CWA establishes the basis for the current
water quality standards program. Section 303(c):
1. Defines water quality standards;
2. Identifies acceptable beneficial uses: public water supply,
propagation of fish and wildlife, recreational purposes, agricultural
and industrial water supplies and navigation;
3. Requires that State and Tribal standards protect public health
or welfare, enhance the quality of water and serve the purposes of the
Act;
4. Requires that States and Tribes review their standards every
three years;
5. Establishes the process for EPA review of State and Tribal
standards, including where necessary the promulgation of a superseding
Federal rule in cases where a State's or Tribe's standards are not
consistent with applicable requirements of the CWA or in situations
where the Administrator determines that Federal standards are necessary
to meet the requirements of the Act
very
three years;
5. Establishes the process for EPA review of State and Tribal
standards, including where necessary the promulgation of a superseding
Federal rule in cases where a State's or Tribe's standards are not
consistent with applicable requirements of the CWA or in situations
where the Administrator determines that Federal standards are necessary
to meet the requirements of the Act.
The decade of the 1970's saw State and EPA attention focus on
creating the infrastructure necessary to support the NPDES permit
program and development of technology-based effluent limitations. While
the water quality standards program continued, it was a low priority in
the overall CWA program. In the early 1980's, it began to be recognized
that greater attention to the water quality-based approach to pollution
control would be needed to effectively protect and enhance all of the
nation's waters.
The first statutory evidence of this was the enactment of a CWA
requirement that after December 29, 1984, no construction grant could
be awarded for projects that discharged into stream segments which had
not, at least once since December 1981, had their water quality
standards reviewed and revised or new standards adopted as appropriate
under Section 303(c). (Public Law 97-117, Section 24, ``Revised Water
Quality Standards.'') The efforts by the States to comply with this
one-time requirement essentially made the States' water quality
standards current as of that date for segments with publicly-owned
treatment works (POTWs) discharging into them.
Additional impetus to the water quality standards program occurred
on February 4, 1987, when Congress enacted the Water Quality Act of
1987 (Pub. L. 100-4). Congressional impatience with the lack of
progress in State adoption of standards for toxics (which had been a
national program priority since the early 1980's) resulted in the 1987
adoption of new water quality standard provisions in the Water Quality
Act amendments
r quality standards program occurred
on February 4, 1987, when Congress enacted the Water Quality Act of
1987 (Pub. L. 100-4). Congressional impatience with the lack of
progress in State adoption of standards for toxics (which had been a
national program priority since the early 1980's) resulted in the 1987
adoption of new water quality standard provisions in the Water Quality
Act amendments. These amendments reflected Congress' conclusion that
toxic pollutants in water are one of the most pressing water pollution
problems. One concern Congress had was that States were relying, for
the most part, on narrative criteria to control toxics (e.g., ``no
toxics in toxic amounts''), which made development of effluent
limitations in permits difficult. To remedy this, Congress adopted
section 303(c)(2)(B), which essentially required development of numeric
criteria for those water body segments where toxic pollutants were
likely to adversely affect designated uses.
The 1987 Amendments gave new teeth to the control of toxic
pollutants. As Senator Mitchell put it, Section 303(c)(2)(B) requires
``States to identify waters that do not meet water quality
standards due to the discharge of toxic substances, to adopt numerical
criteria for the pollutants in such waters, and to establish effluent
limitations for individual discharges to such water bodies.'' (From
Senator Mitchell, 133 Cong. Rec. S733.) To assist States in complying
with Section 303(c)(2)(B), EPA issued program guidance in December 1988
and instituted an expanded program of training and technical
assistance.
Section 518 was another major addition in the 1987 Amendments to
the Act. This section extended participation in the water quality
standards and 401 certification programs to certain Indian Tribes. The
Act directed EPA to establish procedures by which a Tribe could
``qualify for treatment as a State,'' at its option, for purposes of
administering the standards and 401 certification programs
Section 518 was another major addition in the 1987 Amendments to
the Act. This section extended participation in the water quality
standards and 401 certification programs to certain Indian Tribes. The
Act directed EPA to establish procedures by which a Tribe could
``qualify for treatment as a State,'' at its option, for purposes of
administering the standards and 401 certification programs. The Act
also required EPA to create a mechanism to resolve disputes that might
develop when unreasonable consequences arise from a Tribe and a State
or another Tribe adopting different water quality standards on common
bodies of water.
Furthermore, with the 1987 Amendments, the Act explicitly
recognized EPA's antidegradation policy for the first time. The intent
of the antidegradation policy in EPA's regulation was and is to protect
existing uses and the level of water quality necessary to protect
existing uses and to provide a means for assessing activities that may
impact high quality waters and ruling on whether such projects could
proceed. Section 303(d)(4) of the Act requires that water quality
standards in those waters that meet or exceed levels necessary to
support designated uses ``may be revised only if such revision is
subject to and consistent with the antidegradation policy established
under this section.''
B. Regulatory History
In the late 1960's and early 1970's the water quality standards
program was initiated and administered based on minimal guidance and
Federal policies--many of which are still reflected in the water
quality standards program today.
EPA first promulgated a water quality standards regulation in 1975
(40 CFR 130.17, 40 FR 55334, November 28, 1975) as part of EPA's water
quality management regulations mandated under Section 303(e) of the
Act. As discussed earlier, the standards program had a relatively low
priority during this time. This was reflected in the minimal
requirements of the first Water Quality Standards Regulation
A first promulgated a water quality standards regulation in 1975
(40 CFR 130.17, 40 FR 55334, November 28, 1975) as part of EPA's water
quality management regulations mandated under Section 303(e) of the
Act. As discussed earlier, the standards program had a relatively low
priority during this time. This was reflected in the minimal
requirements of the first Water Quality Standards Regulation. Few
requirements on designating water uses and procedures were included.
The Regulation was general, requiring ``appropriate'' water quality
criteria necessary to support designated uses and incorporating the
antidegradation policy. Toxic pollutants or any other specific criteria
were not mentioned.
Some States developed detailed water quality standards regulations
while others adopted only general provisions which proved to be of
limited use in the management of increasingly complex water quality
problems and created disparities in requirements on regulated entities.
The few water quality criteria that were adopted addressed a limited
number of pollutants and primarily described fundamental water quality
conditions (e.g., pH, temperature, dissolved oxygen and suspended
solids) or dealt with conventional pollutants.
In the late 1970s, EPA determined that existing State water quality
standards needed to be better developed. EPA moved to strengthen the
water quality program to complement the technology based controls. EPA
amended the Water Quality Standards Regulation to explicitly address
toxic criteria requirements in State standards and other legal and
programmatic issues. November 8, 1983 (54 FR 51400). This regulation is
more comprehensive than its predecessor and includes more specific
regulatory and procedural requirements
gthen the
water quality program to complement the technology based controls. EPA
amended the Water Quality Standards Regulation to explicitly address
toxic criteria requirements in State standards and other legal and
programmatic issues. November 8, 1983 (54 FR 51400). This regulation is
more comprehensive than its predecessor and includes more specific
regulatory and procedural requirements. The 1983 regulation created the
concept of use attainability analysis, added detail on the adoption of
numeric criteria including authorization for site-specific criteria,
and listed specific procedural requirements and definitions not
included in the original 1975 regulation. The regulation specified the
roles of the States and EPA and the administrative requirements for
States in adopting and submitting their standards to EPA for review. It
also delineated the EPA requirements for review of State standards and
promulgation of federal standards.
The 1983 regulation provided States (and subsequently in 1991)
Tribes with the option of refining their use designation process by
allowing them to establish subcategories of uses, such as cold water
and warm water aquatic life designations. The 1983 regulation also
clarified that States (and subsequently Tribes) may adopt discretionary
policies affecting the implementation of standards, such as mixing
zones, low flows, and variances.
In support of the 1983 Regulation, EPA simultaneously issued
program guidance entitled Water Quality Standards Handbook (December,
1983). The Handbook provided guidance on the interpretation and
implementation of the Water Quality Standards Regulation. This document
also contained information on scientific and technical analyses that
are used in making decisions that would impact water quality standards.
EPA also developed the Technical Support Document for Water Quality-
Based Toxics Control (EPA 44/4-85-032, September, 1985) (TSD) which
provided additional guidance for implementing State water quality
standards
ality Standards Regulation. This document
also contained information on scientific and technical analyses that
are used in making decisions that would impact water quality standards.
EPA also developed the Technical Support Document for Water Quality-
Based Toxics Control (EPA 44/4-85-032, September, 1985) (TSD) which
provided additional guidance for implementing State water quality
standards. In 1991, EPA revised and expanded the TSD. (EPA 505/2-90-
001, March 1991). In 1994, EPA issued the Water Quality Standards
Handbook: Second Edition (EPA-823-B-94-006, August 1994).
To accelerate compliance with CWA section 303(c)(2)(B) (created by
the 1987 Water Quality Act), EPA started action in 1990 to promulgate
numeric water quality criteria for those States that had not adopted
sufficient water quality standards for toxic pollutants. The intent of
the rulemaking, known as the National Toxics Rule, was to strengthen
State water quality management programs by increasing the level of
protection afforded to aquatic life and human health through the
adoption of all available criteria for toxic pollutants listed under
307(a) of the CWA (priority pollutants) present or likely to be present
in State waters. This action culminated on December 22, 1992, with EPA
promulgating Federal water quality criteria for priority toxic
pollutants for 14 States and Territories (see 57 FR 60848).
Subsequent to the promulgation of criteria under the National
Toxics Rule, EPA altered its national policy on the expression of
aquatic life criteria for metals. On May 4, 1995 at 60 FR 22228, EPA
issued a stay of several metals criteria (expressed as total
recoverable metal) previously promulgated under the National Toxics
Rule for the protection of aquatic life. EPA simultaneously issued an
interim final rule that changed these metal criteria promulgated under
the National Toxics Rule from the total recoverable form to the
dissolved form
or metals. On May 4, 1995 at 60 FR 22228, EPA
issued a stay of several metals criteria (expressed as total
recoverable metal) previously promulgated under the National Toxics
Rule for the protection of aquatic life. EPA simultaneously issued an
interim final rule that changed these metal criteria promulgated under
the National Toxics Rule from the total recoverable form to the
dissolved form.
The Water Quality Standards Regulation was amended in 1991 to
implement Section 518 of the Act to expand the standards program to
include Indian Tribes (56 FR 64893, December 12, 1991). EPA added 40
CFR 131.7 to describe the requirements of the issue dispute resolution
mechanism (to resolve unreasonable consequences that may arise between
a Tribe and a State or another Tribe when differing water quality
standards have been adopted for a common body of water) and 40 CFR
131.8 to establish the
procedures by which a Tribe applies for authorization to assume the
responsibilities of the water quality standards and section 401
certification programs.
Fourteen years since its last major revision, the water quality
standards regulation is undergoing review and potential revision in
light of experiences gained in its implementation by States, Tribes,
EPA and the public. The review is intended to reflect the changing
nature of the program and to identify specific changes that will
strengthen water quality protection and restoration, facilitate
watershed management initiatives, and incorporate evolving water
quality criteria and assessment science into water quality standards
programs. Based on the review and the comments expected on the ANPRM,
EPA may decide to revise parts of the regulation and/or change some of
its existing policies and guidance for the water quality standards
program
ality protection and restoration, facilitate
watershed management initiatives, and incorporate evolving water
quality criteria and assessment science into water quality standards
programs. Based on the review and the comments expected on the ANPRM,
EPA may decide to revise parts of the regulation and/or change some of
its existing policies and guidance for the water quality standards
program.
Water quality standards are essential to a wide range of surface
water activities, including: (1) setting and revising water quality
goals for watersheds and/or individual water bodies, (2) monitoring
water quality to provide information upon which water quality-based
decisions will be made, (3) calculating total maximum daily loads
(TMDLs), waste load allocations (WLAs) for point sources of pollution,
and load allocations (LAs) for natural background and nonpoint sources
of pollution, (4) developing water quality management plans which
prescribe the regulatory, construction, and management activities
necessary to meet the water body goals, (5) calculating NPDES water
quality-based effluent limitations for point sources, in the absence of
TMDLs, WLAs, LAs, and/or water quality management plans, (6) preparing
various reports and lists that document the condition of the State's or
Tribe's water quality, and (7) developing, revising, and implementing
an effective section 319 management program which outlines the State's
or Tribe's control strategy for nonpoint sources of pollution.
limitations for point sources, in the absence of
TMDLs, WLAs, LAs, and/or water quality management plans, (6) preparing
various reports and lists that document the condition of the State's or
Tribe's water quality, and (7) developing, revising, and implementing
an effective section 319 management program which outlines the State's
or Tribe's control strategy for nonpoint sources of pollution.
Note: The term ``State'' as used in this Notice refers to the
fifty States, all Territories of the United States, and the District
of Columbia. The term ``Tribe'' or ``Tribal'' as used in this Notice
generally refers to all Indian Tribes authorized to administer the
water quality standards. On occasion, the term ``Tribe'' or
``Tribal'' refers to Indian Tribes that are eligible to seek
authorization to administer the water quality standards, but have
not yet secured such authorization. There are some parts of the law
and regulation where ``State'' is now interpreted to mean ``State or
Tribe.''
C. Water Quality Guidance for the Great Lakes System
On March 23, 1995, EPA published in the Federal Register its Water
Quality Guidance for the Great Lakes System (60 FR 15366, March 23,
1995) (Great Lakes Guidance). The Guidance consists of water quality
criteria for 29 pollutants to protect aquatic life, wildlife, and human
health, and detailed methodologies to develop criteria for additional
pollutants; implementation procedures to develop more consistent,
enforceable water quality-based effluent limits in discharge permits,
as well as TMDLs of pollutants that can be allowed to reach the Great
Lakes and their tributaries from all sources; and antidegradation
policies and procedures.
Section 118(c)(2) of the Clean Water Act (CWA) (Pub. L. 92-500 as
amended by the Great Lakes Critical Programs Act of 1990 (CPA), Pub. L
o develop more consistent,
enforceable water quality-based effluent limits in discharge permits,
as well as TMDLs of pollutants that can be allowed to reach the Great
Lakes and their tributaries from all sources; and antidegradation
policies and procedures.
Section 118(c)(2) of the Clean Water Act (CWA) (Pub. L. 92-500 as
amended by the Great Lakes Critical Programs Act of 1990 (CPA), Pub. L.
101-596, November 16, 1990) required EPA to publish proposed and final
water quality guidance on minimum water quality standards,
antidegradation policies, and implementation procedures for the Great
Lakes System. EPA responded to these requirements by initiating a
rulemaking, publishing the Proposed Water Quality Guidance for the
Great Lakes System (proposed Guidance) in the Federal Register on April
16, 1993 (58 FR 20802). EPA also published four subsequent documents in
the Federal Register identifying corrections and requesting comments on
additional related materials. EPA received over 26,500 pages of
comments, data, and information from over 6,000 commenters in response
to these documents and from meetings with members of the public.
After reviewing and analyzing the information in the proposal and
these comments, EPA developed and published the Great Lakes Guidance,
codified at 40 CFR Part 132. Part 132 contains six appendixes of
detailed methodologies, policies, and procedures. Detailed discussion
of the final Guidance is provided in ``Final Water Quality Guidance for
the Great Lakes System: Supplementary Information Document'' (SID),
(EPA, 1995, 820-B-95-001) and in additional technical and supporting
documents which are available in the docket for the rulemaking. Copies
of the SID and other supporting documents are also available from EPA
in electronic format, or in printed form for a fee upon request.
Developing the Great Lakes Guidance was an enormous effort based on
extensive public comment and analysis on some of the same issues that
are addressed in this ANPRM
chnical and supporting
documents which are available in the docket for the rulemaking. Copies
of the SID and other supporting documents are also available from EPA
in electronic format, or in printed form for a fee upon request.
Developing the Great Lakes Guidance was an enormous effort based on
extensive public comment and analysis on some of the same issues that
are addressed in this ANPRM. One principal difference between the
provisions in the Great Lakes Guidance and the regulation, policy and
guidance that is the subject of this ANPRM is that where the Great
Lakes Guidance addressed programs in the Great Lakes States only, this
ANPRM addresses the national water quality standards regulation and
program, and thus the programs of all States and Tribes with water
quality standards authority. Where the Great Lakes Guidance addressed
an issue or issue area that is also addressed in the ANPRM, that
analysis and conclusion may or may not be relevant to the discussion of
the national program. Where it is, today's ANPRM identifies the
specific relevant Great Lakes Guidance provisions in the specific issue
discussions. Many of the provisions in the Great Lakes Guidance were
developed to address the unique problems in the Great Lakes Basin that
stem from known contamination by bioaccumulative chemicals and the long
retention time of water in the Lakes. Commenters should keep in mind
that the Great Lakes provisions were derived for States that are in the
Great Lakes Basin in whole or part and should consider the uniqueness
of the Great Lakes Basin when evaluating Great Lakes Guidance
provisions for application outside of the Great Lakes Basin.
III. Program Areas for Public Comment
A. Introduction
long
retention time of water in the Lakes. Commenters should keep in mind
that the Great Lakes provisions were derived for States that are in the
Great Lakes Basin in whole or part and should consider the uniqueness
of the Great Lakes Basin when evaluating Great Lakes Guidance
provisions for application outside of the Great Lakes Basin.
III. Program Areas for Public Comment
A. Introduction
Entering its 33rd year, the water quality standards program has
begun to evolve from one with a narrow focus on establishing water body
uses and adopting chemical criteria for basic water quality
characteristics addressing the most obvious sources of pollution to a
more comprehensive program. In recent years the scientific community
has developed greater knowledge of the full range of stressors
adversely impacting surface waters. EPA believes the water quality
standards program should evolve to keep pace with expanding science to
address water quality problems in a more comprehensive way,
accommodating more specific and sophisticated water use
classifications, criteria for more pollutants, new forms of criteria
and companion ecological and health indicators, and closer integration
with other programs. At the same time, EPA realizes that such an
evolution could require a significant increase in analytical resources
from States, Tribes and the regulated community, and that changes to
the existing program must be structured in a way that is workable.
criteria for more pollutants, new forms of criteria
and companion ecological and health indicators, and closer integration
with other programs. At the same time, EPA realizes that such an
evolution could require a significant increase in analytical resources
from States, Tribes and the regulated community, and that changes to
the existing program must be structured in a way that is workable.
This is an appropriate time to begin a structured national debate
aimed at identifying the focused changes necessary to strengthen the
underpinnings of water quality standards and implementation. In the
fourteen years since the regulation was last revised, there have been
numerous scientific developments, statutory changes, court decisions,
and implementation issues affecting the water quality standards
program. The shift in program focus beyond just chemical contamination
to include ecosystem protection and watershed approaches necessitates
reexamining basic program concepts. In addition, there is an
opportunity to address possible barriers to effective water quality
improvements where it is determined that regulatory changes are
possible under existing law.
In recent years, EPA has heard from the States and Tribes as well
as the environmental and regulated communities regarding the necessity
and focus of a revision to the water quality standards regulation. As
indicated by the wide range of issues and options presented in this
advance notice, views of the different stakeholder groups often differ
considerably. Many stakeholders believe that a revised regulation is
needed for continued improvements in water quality protection. Others
believe changes are needed to allow more flexible, cost-effective
approaches by States and Tribes. Conversely, many stakeholders have
said that the regulation is sufficient and does not need to be
reviewed.
A key issue presented here relates to the degree of specificity
necessary should EPA revise the regulation
lation is
needed for continued improvements in water quality protection. Others
believe changes are needed to allow more flexible, cost-effective
approaches by States and Tribes. Conversely, many stakeholders have
said that the regulation is sufficient and does not need to be
reviewed.
A key issue presented here relates to the degree of specificity
necessary should EPA revise the regulation. There are many who support
a more flexible regulation to allow States and Tribes to address new
and changing circumstances. Under a more flexible regulation, States
and Tribes could more easily tailor their programs to deal with
pressing water quality restoration and protection needs that are not
well addressed presently. Others support a regulation with more
specific regulatory requirements. The latter would promote a more
consistent minimal level of protection in State and Tribal water
quality standards, provide more clarity on standards issues, and serve
as a stronger tool in encouraging States and Tribes to take appropriate
restoration and protection actions. EPA urges commenters to consider
the appropriate balance between flexibility, national consistency, and
consistency within States and Tribes when commenting on any of the
ideas presented in this notice.
One of the outcomes of this ANPRM and follow-on actions can be
establishment of a clearer set of national minimum policies and
implementation procedures on which EPA will reliably and predictably
base its approval and disapproval decisions on State and Tribal water
quality standards submittals. EPA remains committed to making
consistent decisions from State to State and Tribe to Tribe and State
to Tribe to meet our obligation to ensure an appropriate level of
protection nationally and that the goals of the Act are achieved.
Clarifying these national norms will serve to better articulate the
norms of protection from State to State and Tribe to Tribe and State to
Tribe and also to clarify national norms of flexibility
nsistent decisions from State to State and Tribe to Tribe and State
to Tribe to meet our obligation to ensure an appropriate level of
protection nationally and that the goals of the Act are achieved.
Clarifying these national norms will serve to better articulate the
norms of protection from State to State and Tribe to Tribe and State to
Tribe and also to clarify national norms of flexibility. Defining the
appropriate level of consistency, in turn, defines the appropriate
degree level of flexibility. In addition, establishing norms of
consistency and flexibility should help to resolve State or Tribal
differences with EPA on water quality standards early in the process,
before the approval/disapproval stage.
While the following discussion describes specific areas and issues
for public review, the public is welcome to comment on any aspect of
the water quality standards program. EPA emphasizes, however, that
publication of this Notice does not commit the Agency to proceeding
with a regulatory change. EPA has not decided whether it will, in fact,
propose regulatory amendments, and, if proposed, how extensive that
effort might be. This decision will be made after considering the
comments received and the need to address other priority activities as
well as any Congressional and Executive Branch directives. A potential
outcome of this public review may be additional guidance and/or
policies rather than regulatory changes.
EPA has not determined the next steps it will take after evaluation
of all the comments received on this ANPRM. It is likely that any
follow-on proposed rule to amend 40 CFR 131 would focus on a relatively
narrow set of issues and that many other issues could be resolved
through policy and guidance. EPA requests that commenters identify the
five to seven issues considered highest priority for possible
regulatory amendments
steps it will take after evaluation
of all the comments received on this ANPRM. It is likely that any
follow-on proposed rule to amend 40 CFR 131 would focus on a relatively
narrow set of issues and that many other issues could be resolved
through policy and guidance. EPA requests that commenters identify the
five to seven issues considered highest priority for possible
regulatory amendments. The summary section at the end of this notice
contains a brief summary of the potential changes to the water quality
standards regulation that are discussed and considered in this ANPRM.
The list of potential changes includes the full range of potential
changes to the regulation on which EPA is specifically requesting
comment. Each potential change to the regulation is discussed in detail
in the corresponding section of the ANPRM.
B. Uses
1. Background
Section 131.10 of the current regulation describes States' and
authorized Tribes' responsibilities for designating and protecting
uses. The regulation requires that States and Tribes specify the water
uses to be achieved and protected; requires protection of downstream
uses; allows for sub-category and seasonal uses, for instance, to
differentiate between cold water and warm water fisheries; sets out
minimum attainability criteria; lists six factors of which at least one
must be satisfied to justify removal of designated uses which are not
existing uses; prohibits removal of existing uses; establishes a
mandatory upgrading of uses which are existing but not designated; and
establishes conditions and requirements for conducting use
attainability analyses.
These provisions make a distinction between existing and designated
uses and set out specific requirements to ensure protection of these
two broad use categories. Designated uses are defined as those uses
specified in water quality standards for each water body or segment
whether or not they are being attained
establishes conditions and requirements for conducting use
attainability analyses.
These provisions make a distinction between existing and designated
uses and set out specific requirements to ensure protection of these
two broad use categories. Designated uses are defined as those uses
specified in water quality standards for each water body or segment
whether or not they are being attained. EPA interprets existing uses as
those uses actually attained in the water body on or after November 28,
1975 (the date of EPA's initial water quality standards regulation),
whether or not they are included in water quality standards. 40 CFR
131.3(e). Designated uses focus on the attainable condition while
existing uses focus on the past or present condition. Section 131.10
then links these two broad use categories in a manner which intends to
ensure that States and Tribes designate appropriate water uses,
reflecting both the existing and attainable uses of each water body.
For this discussion it is important to consider both the distinction
between and linkage of designated and existing uses.
It is in designating uses that States and Tribes establish the
environmental goals for their water resources, and it is in designating
uses that States and Tribes are allowed to evaluate the attainability
of those goals. Because water quality standards perform the dual
function of establishing water quality goals and ultimately serving as
the regulatory basis for water quality-based treatment controls and
strategies, typically, although not exclusively, via water quality
criteria protecting those uses, a State or Tribe often weighs the
environmental, social and economic
uate the attainability
of those goals. Because water quality standards perform the dual
function of establishing water quality goals and ultimately serving as
the regulatory basis for water quality-based treatment controls and
strategies, typically, although not exclusively, via water quality
criteria protecting those uses, a State or Tribe often weighs the
environmental, social and economic
consequences of its decisions in designating uses. The regulation
allows the State or Tribe some flexibility in weighing these
considerations and adjusting these goals over time. Reaching a
conclusion on the uses that appropriately reflect the potential for a
water body, determining the attainability of those goals, and
appropriately evaluating the consequences of a designation, however,
can be a difficult and controversial task. Appropriate application of
this process involves a balancing of environmental, scientific,
technical, and economic and social considerations as well as public
opinion and is therefore one of the most challenging areas of the
current regulation.
To direct this decision making-process, the regulation establishes
requirements that must be followed when designating uses or concluding
that attaining a use is infeasible. When performing this attainability
analysis, a State or Tribe considers physical, chemical, biological and
economic factors that may limit the potential for achieving the goal
use.
EPA's current water quality regulation effectively establishes a
``rebuttable presumption'' that ``fishable/swimmable'' uses are
attainable and therefore should apply to a water body unless it is
affirmatively demonstrated that such uses are not attainable. EPA
believes that the rebuttable presumption policy reflected in these
regulations is an essential foundation for effective implementation of
the Clean Water Act as a whole
on effectively establishes a
``rebuttable presumption'' that ``fishable/swimmable'' uses are
attainable and therefore should apply to a water body unless it is
affirmatively demonstrated that such uses are not attainable. EPA
believes that the rebuttable presumption policy reflected in these
regulations is an essential foundation for effective implementation of
the Clean Water Act as a whole. The ``use'' of a water body is the most
fundamental articulation of its role in the aquatic and human
environments, and all of the water quality protections established by
the CWA follow from the water's designated use. This approach preserves
States' and Tribes' paramount role in establishing water quality
standards, in this instance, in weighing any available evidence
regarding the attainable uses of a particular water body. The
rebuttable presumption approach does not restrict the discretion that
States and Tribes have to determine that ``fishable/swimmable'' uses
are not, in fact, attainable in a particular case. Rather, if the water
quality goals articulated by Congress are not to be met in a particular
water body, the regulations simply require that such a determination be
based upon a credible, ``structured scientific assessment'' of use
attainability.
Because there is a presumption that the uses specified in sections
101(a)(2) and 303(c) of the Clean Water Act are attainable (protection
and propagation of fish, shellfish and wildlife and recreation in and
on the water [101(a)(2)]; public water supplies, propagation of fish
and wildlife, recreational purposes, agricultural purposes, and
navigation [303(c)(2)(A)]), the criteria for overcoming that
presumption are carefully circumscribed
ecified in sections
101(a)(2) and 303(c) of the Clean Water Act are attainable (protection
and propagation of fish, shellfish and wildlife and recreation in and
on the water [101(a)(2)]; public water supplies, propagation of fish
and wildlife, recreational purposes, agricultural purposes, and
navigation [303(c)(2)(A)]), the criteria for overcoming that
presumption are carefully circumscribed. The economic use removal test,
for example, requires a showing that the cost of compliance with the
use(s) would result in ``substantial and widespread economic and social
impact.'' This is a high threshold to ensure that the interim goals of
section 101(a)(2) and the section 303(c) uses are not abandoned without
appropriate cause.
The general construction of the Sec. 131.10 requirements for
designating uses, supplemented with specific Agency guidance, has
worked well in most situations over the last 14 years, and the use
designation process is well established in State and Tribal water
quality standards programs. There are, however, a number of new issues
that have arisen since the 1983 regulation was promulgated. Often these
new issues are associated with site-specific decision-making, and EPA
expects the trend toward site-specific application of water quality
standards will accelerate as States and Tribes begin implementing
watershed protection programs, using field biological information to
more precisely describe aquatic communities to be protected or
restored, and applying new watershed or ecosystem-specific approaches
to criteria development
-specific decision-making, and EPA
expects the trend toward site-specific application of water quality
standards will accelerate as States and Tribes begin implementing
watershed protection programs, using field biological information to
more precisely describe aquatic communities to be protected or
restored, and applying new watershed or ecosystem-specific approaches
to criteria development. As explained in the ``Objectives'' discussion
in this document, one of the principal reasons for this notice is to
determine whether or not the current regulation is sufficiently
flexible to accommodate an expected shift in program emphasis beyond
chemical contaminants to ecosystem protection and watershed approaches
that will necessarily place greater emphasis on integrated assessments
of both chemical and non-chemical stressors and watershed-specific
decision-making.
While it is important to identify potential barriers to needed
flexibility, commenters should identify, as well, any changes or
clarification that may be needed to ensure that an appropriate level of
national consistency is maintained across and within all jurisdictions.
In this section of the notice, EPA seeks comment on the following
issues: (1) refined designated uses with more focus on watersheds and
ecosystems, (2) existing uses, (3) attainability and removal of
designated uses, and (4) alternatives to removal of designated uses.
2. Refined Designated Uses
The current regulation at 40 CFR 131.10(a), based on section 303 of
the CWA, requires that States and authorized Tribes specify appropriate
water uses to be achieved and protected, taking into consideration the
use and value of water for public water supplies, protection and
propagation of fish, shellfish and wildlife, recreation in and on the
water, agricultural, industrial, and other purposes including
navigation. The regulation also allows, but does not require, States
and Tribes to identify more specific sub-categories of these general
use categories
and protected, taking into consideration the
use and value of water for public water supplies, protection and
propagation of fish, shellfish and wildlife, recreation in and on the
water, agricultural, industrial, and other purposes including
navigation. The regulation also allows, but does not require, States
and Tribes to identify more specific sub-categories of these general
use categories.
Over the years, States and Tribes have created many different use
classification systems ranging from a straightforward replication of
uses specifically listed in section 303 of the Act to more complex
systems that express designated uses in very specific terms or
establish sub-classifications which identify different levels of
protection. For example, some States simply specify ``water supply'' as
a use classification applicable throughout the State while others may
identify several specific sub-categories related to the quality of the
raw water supply and anticipated treatment requirements. Similarly,
some States designate general ``aquatic life'' uses while others list a
variety of sub-categories based on a range of aquatic community types
which may include descriptions of core aquatic species representative
of each sub-category. Although a variety of approaches have evolved and
become established in State and Tribal programs, the current regulation
is not specific about the level of precision States or Tribes must
achieve in designating uses.
There are advantages and drawbacks for either the general or
specific use classification systems and it is not clear that either is
necessarily superior in ensuring full protection of State or Tribal
water quality
evolved and
become established in State and Tribal programs, the current regulation
is not specific about the level of precision States or Tribes must
achieve in designating uses.
There are advantages and drawbacks for either the general or
specific use classification systems and it is not clear that either is
necessarily superior in ensuring full protection of State or Tribal
water quality. There is, however, a need for the use designation
process, whether implementing a general or specific classification
system, to clearly articulate and differentiate intended levels of
protection with enough specificity so that decision-makers can
appropriately develop and implement the standards on a site-or
watershed-specific basis and so that the public can understand,
identify with, and influence the goals set for waters they care about.
Lack of precision in uses and criteria assigned to protect those
uses can inadvertently result in either a lesser or greater level of
protection than was actually intended when the water quality standards
were adopted. Although the designated use specificity
issue may apply to any of the Section 303 general use categories, it
may be most relevant for aquatic life uses. Aquatic communities can
vary significantly from water body-to-water body. As noted above,
however, State and Tribal use classifications generally do not reflect
the variability among aquatic community types and may list, instead,
very general descriptions such as ``aquatic life'' as the designated
use. Where this is the case, it is possible that measurable changes in
aquatic community composition or production could occur at a specific
site and still satisfy the definition of ``aquatic life,'' unless
somewhere in its process the State or Tribe has documented information
about its specific intent in applying the ``aquatic life''
classification to each water body
ife'' as the designated
use. Where this is the case, it is possible that measurable changes in
aquatic community composition or production could occur at a specific
site and still satisfy the definition of ``aquatic life,'' unless
somewhere in its process the State or Tribe has documented information
about its specific intent in applying the ``aquatic life''
classification to each water body. For example, an activity that causes
the discharge of sediment, altering the physical habitat in the
receiving water body, could result in a measurable change in aquatic
community structure and function (e.g., the types of aquatic species
found in that segment). Yet, that activity may arguably satisfy a
general ``aquatic life'' use protection requirement simply because of a
lack of specificity in the regulatory description of that designated
use. In this case, lack of precision in the designation or description
of the use could result in under protection of the resource, unless
somewhere in the State or Tribal process an intended level of
protection is specified.
Alternatively, lack of precision in uses and assigned criteria
could result in standards that are over protective, resulting in
application of unnecessary control requirements. In assigning criteria
to protect general use classifications, a State or Tribe must ensure
that the criteria are sufficiently protective to safeguard the full
range of waters in the State or Tribe (i.e., criteria would be based on
the most sensitive use). While this approach will result in full
protection of all State or Tribal waters, the approach has been
challenged, especially for aquatic life uses, where evidence suggests
that the general use and criteria will require controls more stringent
than needed to protect either the existing or potential aquatic
community for a specific water body
iteria would be based on
the most sensitive use). While this approach will result in full
protection of all State or Tribal waters, the approach has been
challenged, especially for aquatic life uses, where evidence suggests
that the general use and criteria will require controls more stringent
than needed to protect either the existing or potential aquatic
community for a specific water body. Although EPA supports broad
application of statewide or tribe-wide criteria to ensure that
sensitive uses are protected where site-specific information is
lacking, the Agency's current thinking is that there is a growing need
to more precisely tailor use descriptions and criteria to match site-
specific conditions, ensuring that uses and criteria provide an
appropriate level of protection which, to the extent possible, is
neither over nor under protective. This concept was reflected in the
Agency's 1994 Combined Sewer Overflow Policy (59 FR 18688).
The level of protection issue is one of both use and criteria. To
have a meaningful effect, a more precise use description must be
accompanied by more focused criteria, appropriately tailored to the
refined use description. EPA recognizes that, at present, national or
statewide or tribe-wide criteria generally are not sufficiently precise
to distinguish among all of the various sub-categories of uses. As
water quality standards issues become more watershed-specific or site-
specific, however, the trend will very likely be toward more specific
use descriptions and; because the essential purpose of the criteria is
to describe, evaluate attainment of, and protect the designated use;
more site-specific criteria development.
A potential constraint for refining the aquatic life uses would be
the resource commitment often associated with developing a
comprehensive biological database
r, the trend will very likely be toward more specific
use descriptions and; because the essential purpose of the criteria is
to describe, evaluate attainment of, and protect the designated use;
more site-specific criteria development.
A potential constraint for refining the aquatic life uses would be
the resource commitment often associated with developing a
comprehensive biological database. Because of the resource constraints,
it may be difficult for a State or Tribe to develop designated uses (or
use descriptions) for each segment that include a detailed biological
description of the aquatic community to be protected. Simply from a
practical standpoint, it may be more workable to reserve such precise
determinations for watershed-specific decision-making. Therefore, in
highlighting the issue of greater specificity, EPA is suggesting that
one, but perhaps not the only, way to resolve this issue is to mandate
much greater specificity in a State or Tribal use classification
structure.
Obviously, there is a need for designated use descriptions in State
and Tribal regulation to be defined, at a minimum, with sufficient
specificity to ensure existing and potential uses will be protected
and/or attained. The difficulty is in striking a balance between
specificity sufficient to ensure uses are appropriately protected and
flexibility needed to allow efficient widespread application of a
classification system to all State or Tribal waters. A question has
been raised about, and EPA is considering, whether or not the current
regulation and guidance provide the framework needed to strike the
appropriate balance and the guidance on when and how to refine uses.
Aquatic Life
sure uses are appropriately protected and
flexibility needed to allow efficient widespread application of a
classification system to all State or Tribal waters. A question has
been raised about, and EPA is considering, whether or not the current
regulation and guidance provide the framework needed to strike the
appropriate balance and the guidance on when and how to refine uses.
Aquatic Life
An issue related to the manner in which States and Tribes define
designated aquatic life uses is the occasional confusion expressed
between the actual intent of the CWA section 101(a)(2) interim goals
and the ``fishable/swimmable'' short hand expression often used to
describe those interim goals. EPA acknowledges that the phrase
``fishable/swimmable'' does not fully describe the intent and scope of
the CWA section 101(a)(2) interim goals. The confusion over the
expression ``fishable'' often surfaces where there is an action aimed
at removing an aquatic life use from a particular water body where
there are no sport or commercial fisheries. In these instances, an
argument is often made that the water body does not meet the
``fishable'' intent of the section 101(a)(2) interim goals because the
water body naturally supports only ``minnows'' and/or aquatic
invertebrates. EPA believes this is an unacceptable argument for
removing an aquatic life designated use or excluding an aquatic life
designated use. As explained in EPA's Questions and Answers on
Antidegradation (USEPA, 1985, p. 3), the Agency considers the
protection afforded by standards to focus on an appropriately
representative aquatic community whether or not that community includes
sport or commercial fish:
ves this is an unacceptable argument for
removing an aquatic life designated use or excluding an aquatic life
designated use. As explained in EPA's Questions and Answers on
Antidegradation (USEPA, 1985, p. 3), the Agency considers the
protection afforded by standards to focus on an appropriately
representative aquatic community whether or not that community includes
sport or commercial fish:
The fact that sport or commercial fish are not present does not
mean that the water may not be supporting an aquatic life protection
function. An existing aquatic community composed entirely of
invertebrates and plants, such as may be found in a pristine
tributary alpine stream, should be protected whether or not such a
stream supports a fishery. Even though the shorthand expression
``fishable/swimmable'' is often used, the actual objective of the
Act is to restore the chemical, physical and biological integrity of
our Nation's waters (Section 101(a)). The term ``aquatic life''
would more accurately reflect the protection of the aquatic
community that was intended in Section 101(a)(2) of the Act.
Thus, EPA's current interpretation of the regulation means that the
Agency will not approve State or Tribal action to exclude aquatic life
protection based on a conclusion that a water body does not support a
``fishery'', implying a sport or commercial fishery. EPA's current
thinking is that it would improve the regulatory text to reflect this
interpretation explicitly.
More specific to this discussion of refined designated uses is the
question of whether or not the Agency should mandate that a minimum
``aquatic life'' use sub-category or sub-categories be included in all
State or Tribal designated use classification systems to ensure
appropriate protection of waters
which do not support commercial or sport fisheries (or any fish).
Refined Designated Uses and Use Attainability Requirements
of refined designated uses is the
question of whether or not the Agency should mandate that a minimum
``aquatic life'' use sub-category or sub-categories be included in all
State or Tribal designated use classification systems to ensure
appropriate protection of waters
which do not support commercial or sport fisheries (or any fish).
Refined Designated Uses and Use Attainability Requirements
There is one additional issue related to the refined designated use
discussion that should be addressed. A question has been raised about
the applicability of the use attainability requirements when
establishing refined designated uses (with particular emphasis of
aquatic life uses). The question raised is: since refined designated
uses may be less inclusive than broad designations, will EPA consider
development of a more refined use description to be a change in use
subject to the use attainability requirements? Under current
regulation, the combination of a new use sub-category and less
stringent criteria triggers the use attainability requirements in
Sec. 131.10 of the Federal regulation (see Sec. 131.10(j)(2)). However,
it is possible that under certain circumstances, this requirement could
be modified.
Such a modification would focus on the kind of information that
should accompany any refined use classification based on a more precise
biological description, whether or not formal use attainability
assessment requirements apply. Essentially, there are two issues to be
addressed: (1) does the refined description of the aquatic community
reflect the reference condition (i.e., natural states) for the kinds of
waters to which the new classification is to be applied? and (2) are
any newly proposed criteria scientifically defensible? These are basic
questions which would have to be addressed whether or not the use
attainability requirements were invoked
s to be
addressed: (1) does the refined description of the aquatic community
reflect the reference condition (i.e., natural states) for the kinds of
waters to which the new classification is to be applied? and (2) are
any newly proposed criteria scientifically defensible? These are basic
questions which would have to be addressed whether or not the use
attainability requirements were invoked. As a result, a proposal to
refine use categories will have to be accompanied by a rationale
explaining how it was determined that the proposed biological
description appropriately reflects the potential for waters to which
the new sub-classification is to be applied. If warranted, this refined
description can then serve as the basis for deriving defensible and
appropriate criteria specific to the new sub-classification.
Request for Comment Refining Use Designations
EPA seeks comment on the following questions:
1. The current regulation is not specific about the level of
precision States or Tribes must achieve in designating uses. The
regulation allows for subcategories of uses, but does not mandate such
an approach. Should the regulation be revised to promote or require
greater specificity in designated uses, particularly for aquatic life
uses, to support watershed-specific decision-making such as is
anticipated in implementing watershed or place-based initiatives?
2. Where a State or Tribe utilizes broadly-defined designated uses,
could the desired level of specificity be adequately addressed in State
or Tribal standards that clearly articulate the intent of the
designated uses as they would apply to specific waters of the State or
Tribe?
3
watershed-specific decision-making such as is
anticipated in implementing watershed or place-based initiatives?
2. Where a State or Tribe utilizes broadly-defined designated uses,
could the desired level of specificity be adequately addressed in State
or Tribal standards that clearly articulate the intent of the
designated uses as they would apply to specific waters of the State or
Tribe?
3. If EPA were to specify a required level of precision in
establishing use categories, what factors should be considered in
prescribing a level of specificity? That is, what factors should be
considered in striking a balance between specificity sufficient to
ensure uses are afforded an appropriate level of protection and
flexibility/efficiency needed to allow widespread application of the
classification system?
4. At a minimum, should the regulation require that State and
Tribal aquatic life use categories include a sub-category or sub-
categories that may be assigned to protect aquatic communities that do
not include a ``fishery''? Alternatively, should the regulation
explicitly reflect EPA's current interpretation of the regulations to
the effect that State and Tribal aquatic life classification systems
protect a range of aquatic communities whether or not there are sport
or commercial fish (or any fish) present?
5. Should the use attainability requirements in 131.10(j)(2) be
modified to recognize situations where scientifically defensible less
stringent criteria may be appropriate for refined uses which reflect
the reference condition for particular waters?
3. Existing Uses
a. Protection of Existing Uses. The requirement to protect existing
uses is addressed in two places in the current regulation--Section
131.10, designation of uses and Section 131.12, antidegradation
ed to recognize situations where scientifically defensible less
stringent criteria may be appropriate for refined uses which reflect
the reference condition for particular waters?
3. Existing Uses
a. Protection of Existing Uses. The requirement to protect existing
uses is addressed in two places in the current regulation--Section
131.10, designation of uses and Section 131.12, antidegradation. (see
discussion of antidegradation, ``tier 1'', in section III.D of this
document) As discussed in the background section above, the regulation
defines ``existing uses'' as ``those uses actually attained in the
water body on or after November 28, 1975, whether or not they are
included in the water quality standards.'' (40 CFR 131.3(e)) As a
result, the focus of existing uses, is on the past or present condition
of the water body. Furthermore, by establishing requirements
prohibiting the removal of existing uses and ensuring those uses will
be appropriately recognized in State and Tribal water quality
standards, the current regulation ensures that the better of the past
or present condition, at a minimum, will be maintained and protected.
Determining whether or not an existing use has occurred in the past or
is currently in place is not always a straightforward task, however,
and over the years, a number of questions have been raised about
exactly what the ``existing use'' provisions in 131.10 require. These
questions generally fall into two categories: (1) what is the link
between existing uses and the State or Tribal use classification
system? and (2) what is the relationship between existing uses,
existing water quality and potential uses, i.e. uses that may be
attainable in the water body whether or not those uses are presently
designated for the water body or are presently being attained?
The first question addresses the relationship between the existing
use protection provisions in Section 131.10 and State or Tribal use
classification systems
the relationship between existing uses,
existing water quality and potential uses, i.e. uses that may be
attainable in the water body whether or not those uses are presently
designated for the water body or are presently being attained?
The first question addresses the relationship between the existing
use protection provisions in Section 131.10 and State or Tribal use
classification systems. There appears to be some confusion on this
point. The confusion seems to center on what may appear to be
conflicting mandates--protect what is there and allow no further
erosion of water quality, and appropriately designate the existing use
in regulation using the established classification system. The existing
use definition and the requirement that existing uses be protected
suggests to some that the description of existing uses is constrained
by the way in which a State or Tribe has described its designated uses
in its classification system. That is, they argue that an existing use,
to be adequately protected, needs to fit into one of the categories or
sub-categories established in State or Tribal regulation, and as a
result, a decision about whether or not a use is ``existing'' is
likewise constrained by the use descriptions and criteria established
in that classification system.
For purposes of Section 131.10, this is generally the case. Again,
this Section of the Federal regulation establishes two requirements
with respect to existing use protection: (1) a prohibition against
removal of a designated use where that use is determined to be an
existing use, and (2) a requirement that existing uses be protected by
State or Tribal regulation. To ensure a workable process, EPA
interprets Section 131.10 as necessarily recognizing a linkage between
the existing use protection provisions and the established State or
Tribal use classification system
) a prohibition against
removal of a designated use where that use is determined to be an
existing use, and (2) a requirement that existing uses be protected by
State or Tribal regulation. To ensure a workable process, EPA
interprets Section 131.10 as necessarily recognizing a linkage between
the existing use protection provisions and the established State or
Tribal use classification system. This interpretation of the regulatory
framework, however, also presumes a responsibility on the part of a
State or Tribe to establish a classification system that is
sufficiently flexible and/or
encompassing to assure an appropriate level of protection for the
anticipated range of existing uses (see discussion on refined
designated uses in this chapter).
As explained earlier in the discussion on refined designated uses,
a variety of use classification systems has evolved and become
established in State and Tribal programs. Although there are likely
some advantages to a more refined use classification system when it
comes to protecting existing uses (more precise categories in which to
fit the existing use), such a system may not be necessary as long as
the State or Tribal standards clearly articulate the intended and
appropriate level of protection for existing uses (again, see
discussion of refined designated uses). The following example
illustrates the point. An acid bog is a water body type which may be
fairly widespread but which, as a classification type, may not appear
in many State or Tribal standards. Where the aquatic characteristics of
an acid bog are discovered to constitute an existing use, a State or
Tribe could: (1) establish a classification type and criteria for acid
bogs to ensure appropriate protection by way of a specific designation,
or (2) classify the bog within the existing, general classification
system, e.g., warm water aquatic life, and adopt any needed site-
specific criteria to ensure the existing nature and quality of this
specific water resource is protected
e, a State or
Tribe could: (1) establish a classification type and criteria for acid
bogs to ensure appropriate protection by way of a specific designation,
or (2) classify the bog within the existing, general classification
system, e.g., warm water aquatic life, and adopt any needed site-
specific criteria to ensure the existing nature and quality of this
specific water resource is protected. Either approach can result in an
appropriate level of protection and there may not be a need for States
or Tribes to include an ``acid bog'' water body type in their
classification system. Under either approach the standards must
articulate clearly the intended and appropriate level of protection,
ensuring protection of the existing use.
It is also important to remember that the existing use provisions
in both Secs. 131.10 and 131.12 must be considered together. The
classification requirements in Sec. 131.10 ensure that all existing
uses will be recognized and protected through appropriate
classification of those water bodies in the standards (and/or
application of appropriate site-specific criteria where the existing
classification system is broadly constructed). The antidegradation-
based existing use protection provision guarantees that individual
activities on individual water bodies will be examined to ensure those
activities will not eliminate existing uses, whether or not those uses
are currently recognized in the State or Tribal standards. The
antidegradation provisions, through the general requirement that
existing uses be protected, ensure immediate protection from specific
activities which may threaten the existing use, and the classification
requirements ensure recognition and longer-term protection from any
present or future stressors through specific designation in the
standards. Both these provisions apply and should not be considered in
isolation
ns, through the general requirement that
existing uses be protected, ensure immediate protection from specific
activities which may threaten the existing use, and the classification
requirements ensure recognition and longer-term protection from any
present or future stressors through specific designation in the
standards. Both these provisions apply and should not be considered in
isolation. Together they constitute the existing use protection
requirements, ensuring the existing uses and water quality to support
those uses are maintained and protected.
The second question addresses the relationship between existing
uses, existing water quality and potential uses. The Agency's guidance,
Questions and Answers on Antidegradation, August, 1985 (Notice of
Availability, 50 FR 34546, August 26, 1985 [included as appendices to
Water Quality Standards Handbook, cited above]) addresses this issue,
in part. The answer to ``question 7'' states: ``an existing use can be
established by demonstrating that fishing, swimming, or other uses have
actually occurred since November 28, 1975, or that the water quality is
suitable to allow such uses to occur (unless there are physical
problems which prevent the use regardless of water quality).'' Using an
example of a healthy shellfish community which is not currently being
harvested, the answer goes on to explain that the existence of a use
(past or present) is not dependent solely upon a demonstration that the
use is being satisfied in a functional sense (i.e., in this case, the
shellfish harvested). In this example, ``shellfish harvesting'' is
considered an existing use, even though there is presently no
harvesting underway, because the water quality and habitat support a
healthy shellfish community suitable for harvesting
se
(past or present) is not dependent solely upon a demonstration that the
use is being satisfied in a functional sense (i.e., in this case, the
shellfish harvested). In this example, ``shellfish harvesting'' is
considered an existing use, even though there is presently no
harvesting underway, because the water quality and habitat support a
healthy shellfish community suitable for harvesting. The answer further
explains that to assume otherwise ``* * *would be to say that the only
time an aquatic protection use `exists' is if someone succeeds in
catching fish.'' As illustrated in this example, the existing use
question must address both the current or past functional use and the
current or past (since November 28, 1975) water quality, and the intent
of the regulation is to ensure the existing use and the water quality
necessary to support that use are maintained and protected. Thus, in
this example, the shellfish harvesting use is to be protected by
designated uses in water quality standards.
The shellfish example is a good one in that it clearly illustrates
EPA's position that an existing use finding can be made either where
the use is or has been ``actually attained'' or where the water quality
necessary to support the use is in place even if the use, itself, is
not currently established, as long as other site-specific factors, for
example physical problems like flow or substrate, would not, despite
the suitable water quality, prevent attainment of the use. The ``other
factors'' caution is important in understanding EPA's position on
existing uses. In making an existing use determination, there is a link
between the use and water quality. To be considered an existing use,
the use must have been actually attained in the past, is now attained
or water quality is sufficient to support the use
e suitable water quality, prevent attainment of the use. The ``other
factors'' caution is important in understanding EPA's position on
existing uses. In making an existing use determination, there is a link
between the use and water quality. To be considered an existing use,
the use must have been actually attained in the past, is now attained
or water quality is sufficient to support the use. However, for some
sites, water quality, alone, may be an insufficient basis for making an
existing use finding if there are other factors that would prohibit the
use from taking place regardless of the quality of the water at a site.
In the shellfish example, the necessary water quality is present, and
there are no obvious limiting factors which would prohibit present or
future shellfish harvesting.
Although this example is useful in illustrating important
principles in implementing existing use protection requirements, it is
a rather straightforward example. An appropriate resolution of the
existing/designated use issue may be somewhat less clear-cut where
either the existing water quality or the existing use is marginal
(i.e., it is difficult to determine whether or not the use is actually
attained, or whether or not there are factors, other than water
quality, that could prohibit the use). It is in addressing these
situations that questions have been raised about what the current
regulation requires. A principal difficulty in addressing these
questions may lie in resolving the linkage between the present and past
conditions protected by the ``existing uses'' provisions and the
attainable or potential condition protected by ``designated uses''
provisions. It may be useful to evaluate this issue by considering the
link between existing and designated uses established in the current
regulation.
Obviously, any decision about whether or not a use is an ``existing
use'' must be a water body-specific determination
ons protected by the ``existing uses'' provisions and the
attainable or potential condition protected by ``designated uses''
provisions. It may be useful to evaluate this issue by considering the
link between existing and designated uses established in the current
regulation.
Obviously, any decision about whether or not a use is an ``existing
use'' must be a water body-specific determination. The existing use
determination is, therefore, site-specific, and decisions should
consider water quality and other limiting factors such as the physical
habitat specific to a particular water body. A few examples may help
illustrate the issue. A somewhat common existing use question applies
to primary contact recreation: if a few people on a few occasions
``swim'' in a water body that does not have the quality or physical
characteristics to support swimming, is this an existing use, even if
the water body is posted ``no swimming'' due to
bacterial contamination and lacks the physical features to actually
support swimming? The straightforward answer to this question is that
``swimming'' is not an existing use because the present (or past)
condition does not support that use. This conclusion is based on the
very limited actual ``use'' and, more importantly, the lack of suitable
water quality and physical characteristics that would support a
recreational swimming use now or in the future (as determined by the
water quality requirements and recreational swimming considerations,
including safety considerations, in the State or Tribal classification
system for primary contact recreation).
A question has been raised as to how to interpret the regulation in
the context of this example. One could determine that because the water
body is not suitable for swimming, and has not been since 1975, primary
contact recreation is not an existing use
onal swimming considerations,
including safety considerations, in the State or Tribal classification
system for primary contact recreation).
A question has been raised as to how to interpret the regulation in
the context of this example. One could determine that because the water
body is not suitable for swimming, and has not been since 1975, primary
contact recreation is not an existing use. Alternatively, one could
determine primary contact recreation to be an existing use because the
water body was actually used for swimming, even though the use was
occasional and water quality and physical characteristics were not
acceptable to support such a use. EPA believes the first alternative is
the better interpretation of Agency regulations and guidance in this
example, because the use is not established and the water quality and
other factors would appear to prohibit actually attaining a
recreational swimming use.
Stating that this is an appropriate interpretation of the
regulation means that EPA would not object if a State or Tribe reached
a conclusion, in a similar case, that this was not an existing use. As
noted above, however, existing use decisions are very site-specific,
and it is possible that, on a specific water body under similar
circumstances, a different conclusion could be reached by a State or
Tribe based on public comment at a hearing and a decision to take a
protective approach to the incidental use for that specific resource.
The Federal requirements do not prohibit a State or Tribe from taking a
more protective approach than would be required by the water quality
standards regulation.
Although, in the above example, a State or Tribe could conclude
that primary contact recreation is not an existing use, it may well be
an attainable use that must be protected as a designated use by the
State's or Tribe's water quality standards
quirements do not prohibit a State or Tribe from taking a
more protective approach than would be required by the water quality
standards regulation.
Although, in the above example, a State or Tribe could conclude
that primary contact recreation is not an existing use, it may well be
an attainable use that must be protected as a designated use by the
State's or Tribe's water quality standards. This finding would depend
on whether the physical condition of the water body is suitable for
swimming and whether the water quality problems limiting the use are
controllable. (See 40 CFR 131.10(j) and discussion on use attainability
analysis below). The point is that, although the existing use
provisions most directly address past or present conditions, decisions
about existing uses generally are not made in isolation. With respect
to uses contained in CWA Section 101(a)(2), the regulation links
existing and designated uses, and it may be useful to view these
provisions as a continuum in examining the broader question of use
protection.
Some States and Tribes have recognized that continuum in developing
use attainability guidance for recreational uses which includes
questions about the actual use, existing water quality, water quality
potential, recreational facilities, location, safety considerations,
physical conditions of the water body, and access
Note: access here means restricted access, as in fenced
property; access is not intended to suggest the ``remoteness'' of
the water body; in EPA's view, remoteness is not a valid basis for
an attainability decision on recreation.
l use, existing water quality, water quality
potential, recreational facilities, location, safety considerations,
physical conditions of the water body, and access
Note: access here means restricted access, as in fenced
property; access is not intended to suggest the ``remoteness'' of
the water body; in EPA's view, remoteness is not a valid basis for
an attainability decision on recreation.
When all of these factors are considered, the adopted water quality
standards are consistent with both the existing and designated use
provisions. For example, suppose a city has created a greenway along a
stream that receives wastewater effluent upstream of the greenway and
has posted ``no swimming'' signs. The greenway attracts children
leading to the inevitable ``unauthorized'' swimming. If the physical
condition of the stream is suitable for swimming, the swimming occurs
on a frequent basis and the greenway provides recreational facilities
and access, the only factor limiting the use may be a water quality
problem that in the judgement of the State or Tribe can be controlled
to achieve the primary contact use. The linkage between existing and
designated uses encourages the evaluation of this full suite of factors
in making a decision about whether or not primary contact recreation
should be protected.
A similar existing use question is often raised for aquatic life
uses where the existing aquatic community is impaired as a result of
marginal water quality. A common example in the western part of the
country is a mountain stream impaired by historic hard rock mining
(with the impacts occurring well before November 28, 1975). Although
the physical condition of the stream may represent ideal trout habitat,
the trout population may be severely limited, in poor condition or
absent as a result of the toxic effects of metals
f
marginal water quality. A common example in the western part of the
country is a mountain stream impaired by historic hard rock mining
(with the impacts occurring well before November 28, 1975). Although
the physical condition of the stream may represent ideal trout habitat,
the trout population may be severely limited, in poor condition or
absent as a result of the toxic effects of metals. In its
classification system, however, a State or Tribe may describe and
designate this type of stream as a ``salmonid spawning'' use based on
its physical habitat and potential. For streams such as these, where a
few adult trout are present but there is no evidence of younger age
classes, the question is asked--is this an existing ``salmonid
spawning'' use?
Again, the appropriate answer, based on EPA regulations and
guidance, is that this is not an existing use (although it may
nonetheless be an appropriate designated use if it has the potential to
support salmonid spawning). The current use, matching the
classification description, is absent, and the limiting water quality
problems have been in existence prior to November 28, 1975. (This does
not mean, necessarily, there is not some existing aquatic life use
which would then serve as the regulatory ``floor'' for this water body;
see the ``limited'' aquatic life use discussion in the use
attainability analysis discussion in this section below and the ``tier
1'' discussion in the antidegradation section, III. D) As in the
``swimming'' example, however, there can be a gradation of conditions,
and occasionally it may be difficult to draw a bright line and
conclude, with confidence, that this is where the existing use begins
the ``limited'' aquatic life use discussion in the use
attainability analysis discussion in this section below and the ``tier
1'' discussion in the antidegradation section, III. D) As in the
``swimming'' example, however, there can be a gradation of conditions,
and occasionally it may be difficult to draw a bright line and
conclude, with confidence, that this is where the existing use begins.
In situations similar to this impaired stream example, where the
existing water quality problems are considered controllable by the
State or Tribe, arguments have been made on both sides of the existing
use issue: the salmonid spawning use is not existing, or the salmonid
spawning use is in place, albeit currently at an impaired level.
Disputes about the correct interpretation of Agency guidance become
even more difficult to resolve where the existing impacts to water
quality are not as great as those in the above example. Often streams
impacted by historical mining, such as the one described above, are
headwater streams. As the water moves downstream, clean water
tributaries reduce the effect of the metals contamination, and fish, in
number, begin to move into these ``improved'' waters. Nevertheless,
many such streams would be considered impaired when compared to
unaffected, similar waters (reference streams). And, despite supporting
``fairly good numbers'' of trout, the existing water quality in such
streams often exceeds the chronic and, occasionally, acute standards
for metals. In situations such as these, States and Tribes have had
difficulty in reaching conclusions about whether or not an existing
use, matching the classification, is in place. Because States and
Tribes may evaluate existing uses when they are designating uses,
threshold existing use
the existing water quality in such
streams often exceeds the chronic and, occasionally, acute standards
for metals. In situations such as these, States and Tribes have had
difficulty in reaching conclusions about whether or not an existing
use, matching the classification, is in place. Because States and
Tribes may evaluate existing uses when they are designating uses,
threshold existing use
determinations may lead to questions about the potential for the water
body and the appropriate designated uses for it.
EPA's current interpretation is that the existing use should be
identified either where the use has taken place or the water quality
sufficient to support the use has existed since November 28, 1975, or
both. That is to say, State and Tribal existing use decisions can be
based on a finding that the use, as defined in the classification
system, and/or the water quality needed to support the use is in place
(and there are no other factors that would prohibit actually attaining
the use). This interpretation does not fully address the issue of
partially impaired uses. Thus, a fuller explanation may be needed in
the regulation or policy of how that interpretation is applied where
the use or the water quality may be somewhat impaired. EPA is
considering whether changes to the regulation or additional guidance is
needed to explain the Agency's position and to offer direction in
making such determinations.
Request for Comment on Existing Uses
y impaired uses. Thus, a fuller explanation may be needed in
the regulation or policy of how that interpretation is applied where
the use or the water quality may be somewhat impaired. EPA is
considering whether changes to the regulation or additional guidance is
needed to explain the Agency's position and to offer direction in
making such determinations.
Request for Comment on Existing Uses
EPA seeks comment on the following questions:
1. Does EPA need to further clarify the existing use protection
provisions in Sec. 131.10, more clearly explaining that existing uses
are defined by the uses made of water bodies and existing water
quality, where that quality is or was sufficient to allow the use to
occur (and there are no other limiting factors)? If so, will the
clarification require a regulatory amendment or can the needed
clarification be accomplished in Agency policy or guidance?
2. Does EPA need to expand its guidance to explain how the current
regulation addresses existing use decisions where there is some
semblance of a use even though the water quality is insufficient to
support the use in, for example a safe or healthful manner? Should this
additional guidance clarify the linkage between existing and designated
uses?
3. Should the regulatory definition of ``existing use'' at 40 CFR
131.3(e) be modified? If so, how?
4. Use Attainability.
a. Attainability of Uses. States and Tribes may remove a designated
use, that is not an existing use, if they can demonstrate that
attaining the designated use is infeasible. (40 CFR 131.10(g)) The
current regulation identifies the factors that must be considered in
making such a demonstration. As explained in the regulation, existing
uses, by definition, are attainable and must be protected by designated
uses in water quality standards (40 CFR 131.10(h)(1), 131.10(i) and
131.12(a)(1))
use, if they can demonstrate that
attaining the designated use is infeasible. (40 CFR 131.10(g)) The
current regulation identifies the factors that must be considered in
making such a demonstration. As explained in the regulation, existing
uses, by definition, are attainable and must be protected by designated
uses in water quality standards (40 CFR 131.10(h)(1), 131.10(i) and
131.12(a)(1)). Further, at a minimum, uses are considered attainable if
they can be achieved by implementing effluent limits required under
Sections 301(b) and 306 of the Clean Water Act (Act) and by
implementing cost-effective and reasonable best management practices
(BMPs) for nonpoint source control. (40 CFR 131.10(h)(2)).
These existing uses, technology and BMP provisions establish the
basic regulatory threshold test for what the attainable use of a water
body is and thus what the minimum use designation for the particular
water body must be. Where either the use is existing or the use can be
attained through implementation of Clean Water Act technology
requirements and/or implementation of applicable State requirements
regarding BMPs for nonpoint source control, 40 CFR 131.10(h)
establishes that the use is attainable and must be designated. Once a
use is designated, it is presumed to be attainable and may not be
removed (downgraded) unless the State or Tribe can demonstrate that
attaining the designated use is not feasible based on one of the six
use removal criteria (40 CFR 131.10(g)). Therefore, uses are considered
attainable if: (1) the use is existing; (2) the use can be attained
through application of CWA technology requirements and/or State or
Tribe required BMPs; or, (3) none of the use removal criteria is
satisfied. EPA has in the past recommended that these use removal
criteria referenced under number 3 above, serve as additional tests,
over and above numbers 1 and 2 above, for determining when a use is
attainable
the use is existing; (2) the use can be attained
through application of CWA technology requirements and/or State or
Tribe required BMPs; or, (3) none of the use removal criteria is
satisfied. EPA has in the past recommended that these use removal
criteria referenced under number 3 above, serve as additional tests,
over and above numbers 1 and 2 above, for determining when a use is
attainable. Clearly these use removal criteria (131.10(g)) are designed
to determine whether a use is attainable and therefore can serve that
purpose equally effectively when considering whether to remove a
designated use (the situation where they are clearly required to be
used) and when considering whether a use is attainable and should be
designated. The discussion below on use attainability analysis (UAA)
and non section 101(a)(2) uses further discusses the relationship
between designation of attainable uses, UAAs, and the analysis required
to justify use removal. That discussion solicits comment on whether the
use removal criteria at Sec. 131.10(g), in addition to being the
regulatory justifications for use removal, should, consistent with
EPA's interpretation of the regulation, be included in the basic
elements of a UAA.
Despite what EPA believes are fairly clear guidelines in the
current regulation and guidance, questions have been raised about EPA's
minimum attainability requirements. The Agency's current thinking is
that basic attainability requirements, the methods for demonstrating
attainability, the circumstances under which attainability analysis
must be done, and what that analysis must consist of should be
clarified in the regulation.
b. Removal of Designated Uses. The regulation (at 40 CFR 131.10(g))
specifies that States and Tribes may remove a designated use which is
not an existing use if attainment of a use is not feasible due to the
following:
(1) Naturally occurring pollutant concentrations prevent the
attainment of a use; or,
t be done, and what that analysis must consist of should be
clarified in the regulation.
b. Removal of Designated Uses. The regulation (at 40 CFR 131.10(g))
specifies that States and Tribes may remove a designated use which is
not an existing use if attainment of a use is not feasible due to the
following:
(1) Naturally occurring pollutant concentrations prevent the
attainment of a use; or,
(2) Natural, ephemeral, intermittent, or low flow conditions or
water levels prevent the attainment of the use, unless these conditions
may be compensated for by the discharge of sufficient volume of
effluent discharges without violating State or Tribal water
conservation requirements to enable uses to be met; or,
(3) Human caused conditions or sources of pollution prevent the
attainment of the use and cannot be remedied or would cause more
environmental damage to correct than to leave in place; or;
(4) Dams, diversions or other types of hydrological modifications
preclude the attainment of the use, and it is not feasible to restore
the water body to its original condition or operate such modification
in a way that would result in the attainment of a use; or,
(5) Physical conditions related to the natural features of the
water body, such as the lack of a proper substrate, cover, flow, depth,
pools, riffles, and the like, unrelated to water quality, preclude
attainment of aquatic life protection uses; or,
ible to restore
the water body to its original condition or operate such modification
in a way that would result in the attainment of a use; or,
(5) Physical conditions related to the natural features of the
water body, such as the lack of a proper substrate, cover, flow, depth,
pools, riffles, and the like, unrelated to water quality, preclude
attainment of aquatic life protection uses; or,
(6) Controls more stringent than those required by Sections 301(b)
and 306 of the Act would result in substantial and widespread economic
and social impact.
The use removal criteria were included in the regulation to address
those circumstances where the attainability of certain uses would be
precluded by conditions over which the water quality protection
provisions in the regulation had little or no control. The
uncontrollable conditions considered most likely to limit attainability
were: natural water quality or habitat limitations, irretrievable
human-caused contamination or conditions, or insupportable economic and
social costs. These general
conditions, then, formed the basis for the six use removal criteria.
Although EPA believes the use removal criteria have functioned
reasonably well, the growing number and reoccurring nature of the
questions raised about these criteria have convinced EPA of the need to
review this central element of the program.
Some have argued that the six criteria and their interpretation are
overly stringent, making any proposal to remove a designated use futile
even where a use was ``mistakenly'' designated. Others argue that the
use removal criteria and their interpretation are overly generous,
granting the possibility of use removal where the principal stressor is
a condition which should not be immune from the water quality
protection provisions in the federal regulation (operation of dams is
one example used in arguing this position)
use futile
even where a use was ``mistakenly'' designated. Others argue that the
use removal criteria and their interpretation are overly generous,
granting the possibility of use removal where the principal stressor is
a condition which should not be immune from the water quality
protection provisions in the federal regulation (operation of dams is
one example used in arguing this position). Others complain that there
seems to be no national consistency in the way the use removal criteria
are interpreted by EPA, the States or the Tribes. And, finally,
questions also have been raised about whether or not the criteria
adequately address or apply to all uses equally. The key to appropriate
application of the use removal criteria is to focus on whether or not a
condition, at a specific site, would preclude attaining a designated
use. A decision on this question is not always straightforward however,
and as a result, there are questions about the application of the use
removal criteria. A few examples may help the discussion.
Criterion number 1 allows removal of a designated use where
``naturally occurring pollutant concentrations prevent attainment of
the use.'' A reoccurring question about this provision is: under what
circumstances should ``naturally occurring pollutant concentrations''
be the justification for use removal versus the basis for calculating
site-specific criteria, acknowledging that the natural condition
defines the existing use? Often, the numerical criteria assigned to the
designated use are the initial benchmark for estimating whether or not
a designated use will be attained. In this approach, a comparison of
the natural condition with the numerical criteria is used in the
evaluation of attainability. Where such an analysis demonstrates
clearly that the naturally occurring pollutant concentrations would
preclude the designated use, the use may be removed
the
designated use are the initial benchmark for estimating whether or not
a designated use will be attained. In this approach, a comparison of
the natural condition with the numerical criteria is used in the
evaluation of attainability. Where such an analysis demonstrates
clearly that the naturally occurring pollutant concentrations would
preclude the designated use, the use may be removed. There are,
however, examples of situations where statewide or national criteria
for one or more contaminants are exceeded, and yet the available
information on the overall condition of the water indicate the use is
supported. This situation is most common for aquatic life uses where
local populations of aquatic organisms may have acclimated to natural
conditions outside the estimated ``normal'' tolerance range, where
species on the edge of their distribution are reproducing but are
physiologically stressed or where broadly derived criteria may not be
appropriate for the particular aquatic community at that site. In such
a situation, the observed condition of the resource obviously will take
precedence over the predicted condition, and the natural water quality
will form the basis for site-specific criteria since the use is clearly
not precluded. Again, the key to answering the use removal question is
to determine whether or not ``natural conditions'' preclude attainment
of the use, and because of the site-specific circumstances discussed
above, answering this question involves more than a simple comparison
of numeric criteria with the natural condition.
Criterion number 2 allows removal of a designated use where
natural, ephemeral, intermittent, or low flow conditions would preclude
the use unless these conditions may be compensated for by the discharge
of sufficient volume of effluent discharges without violating State or
Tribal water conservation requirements to enable uses to be met
(emphasis added). Questions have been raised about exactly what the
above italicized language means
nated use where
natural, ephemeral, intermittent, or low flow conditions would preclude
the use unless these conditions may be compensated for by the discharge
of sufficient volume of effluent discharges without violating State or
Tribal water conservation requirements to enable uses to be met
(emphasis added). Questions have been raised about exactly what the
above italicized language means. EPA's interpretation of this phrase is
that, where an effluent discharge creates an essentially perennial flow
for what naturally would be ephemeral or intermittent waters, the
resulting aquatic community is to be protected. EPA's current thinking
is that in situations such as these, the second criterion for use
removal means that a State or Tribe cannot remove a use of a water body
where the augmented flow supports an aquatic life use.
Criterion number 4 allows removal of a use where dams, diversions
or other types of hydrological modifications preclude the attainment of
the use, and it is not feasible to restore the water body to its
original condition or operate such modification in a way that would
result in the attainment of a use. As indicated above, some have argued
that operation of dams is an inappropriate basis for concluding that
Section 101(a)(2) uses are not attainable, and they have suggested this
criterion be removed from the regulation. In arguing this position,
these commenters have pointed to the 1986 amendments to the Federal
Power Act (Electric Consumer's Protection Act, or ECPA) and the
legislative history of these amendments as an indication of Congress'
intent to give equal priority to protecting and restoring fish and
wildlife habitat even where dams exist. Specifically, the ECPA states:
removed from the regulation. In arguing this position,
these commenters have pointed to the 1986 amendments to the Federal
Power Act (Electric Consumer's Protection Act, or ECPA) and the
legislative history of these amendments as an indication of Congress'
intent to give equal priority to protecting and restoring fish and
wildlife habitat even where dams exist. Specifically, the ECPA states:
* * *In deciding whether to issue any license the
{Federal Energy Regulatory Commission}, in addition to
the power and development purposes for which licenses are issued,
shall give equal consideration to the purposes of energy
conservation, the protection, mitigation of damages to, and
enhancement of fish and wildlife (including related spawning grounds
and habitat), the protection of recreational opportunities, and the
preservation of other aspects of environmental quality. (ECPA
amending the Federal Power Act, Section 4(e), 16 U.S.C. Section
797(e))
The legislative history, these commenters believe, provides a
particularly clear indication of congressional intent to protect and
restore aquatic life uses. They specifically point to that part of the
record which states that no one ``expect[s] `business as usual,' '' but
rather the expectation is that:
[P]rojects licensed years earlier must undergo the scrutiny of
today's values as provided in this law and other environmental laws
applicable to such projects. If nonpower values cannot be adequately
protected, FERC should exercise its authority to restrict or,
particularly in the case of original licenses, even deny a license
on a waterway. (H.R. Rep. No. 99-934, 99th Cong., 2d Sess. (1986) at
22)
cts licensed years earlier must undergo the scrutiny of
today's values as provided in this law and other environmental laws
applicable to such projects. If nonpower values cannot be adequately
protected, FERC should exercise its authority to restrict or,
particularly in the case of original licenses, even deny a license
on a waterway. (H.R. Rep. No. 99-934, 99th Cong., 2d Sess. (1986) at
22)
Groups arguing for removal of criterion 4 use the amendments to the
Federal Power Act as an example of the recognition being given today's
environmental values and the importance of restoring and enhancing the
aquatic habitats and recreational uses of water resources. They
maintain that ``...the Water Quality Rule should be updated to
recognize that aquatic and recreational uses can not be removed based
simply on the existence of a dam.'' EPA's current thinking is that the
above rationale and legislative history raise a serious question about
whether the existence of a dam and the infeasibility of operating that
dam in a way that will result in attaining the designated use, measured
against today's values, is sufficient reason to remove a designated
use. EPA is interested in commenters views on this issue.
Criterion number 5 allows removal of a designated use where
physical conditions related to the natural features of the water body,
such as the lack of proper substrate, cover, flow, depth, pools,
riffles, and the like, unrelated to water quality, preclude attainment
of
gainst today's values, is sufficient reason to remove a designated
use. EPA is interested in commenters views on this issue.
Criterion number 5 allows removal of a designated use where
physical conditions related to the natural features of the water body,
such as the lack of proper substrate, cover, flow, depth, pools,
riffles, and the like, unrelated to water quality, preclude attainment
of
aquatic life protection uses. Notwithstanding the reference to aquatic
life uses in 131.10(g)(5), some have argued that recreational uses,
especially swimming uses, might also be limited by physical factors
(especially where safety is an issue), and they have asked whether or
not the physical factors consideration could be applied to evaluations
of recreational use attainability. As now written, the regulatory
language would not allow consideration of physical factors, alone, as
the basis for removing a designated recreational use. In the preamble
to the 1983 regulation, EPA explained that, while the Agency recognized
that physical factors also affect recreational uses, States, and now
Tribes, would need to give consideration to incidental uses of the
water body even though it may not make sense to encourage use of a
stream for swimming because of the flow, depth or velocity of the
water. Instead, the preamble discussion explained that based on prudent
public health considerations, the use protection question was not to be
judged wholly on an analysis of the water body's suitability for
swimming but rather on whether or not swimming would actually occur.
EPA's current thinking is that physical factors, alone, would not be
sufficient justification for removing or failing to designate a primary
contact recreation use
ed that based on prudent
public health considerations, the use protection question was not to be
judged wholly on an analysis of the water body's suitability for
swimming but rather on whether or not swimming would actually occur.
EPA's current thinking is that physical factors, alone, would not be
sufficient justification for removing or failing to designate a primary
contact recreation use.
EPA's suggested approach to the recreational use question has been
for States and Tribes to look at a suite of factors such as, the actual
use, existing water quality, water quality potential, access,
recreational facilities, location, safety considerations, and physical
conditions of the water body in making any use attainability decision.
The guidance suggests that any one of these factors, alone, may not be
sufficient to conclude that designation of the use is not warranted.
Nevertheless, there clearly are situations such as high flows caused by
storm events where the physical conditions of a water body would make
swimming, if not impossible, extremely dangerous. It is in addressing
situations such as these that questions have been raised about the
applicability of physical factors to the recreational use issue. The
question is sometimes posed in terms of whether or not a State or Tribe
would incur some liability by designating or continuing to designate
such waters as swimmable. They argue that a reasonable, common sense
approach is to acknowledge that there are certain waters for which
primary contact recreation is not an attainable use solely because of
the physical condition of the water. EPA is, therefore, considering
whether the regulation or Agency guidance should be amended to allow
consideration of physical factors, alone, as the basis for removing or
not designating primary contact recreational uses.
The above discussion is about EPA's interpretation of the
conditions that would have to be satisfied to either remove or not
designate recreational uses
ition of the water. EPA is, therefore, considering
whether the regulation or Agency guidance should be amended to allow
consideration of physical factors, alone, as the basis for removing or
not designating primary contact recreational uses.
The above discussion is about EPA's interpretation of the
conditions that would have to be satisfied to either remove or not
designate recreational uses. As explained earlier in this section,
satisfying those conditions gives a State or Tribe the option of either
removing or not designating the use. It does not, however, create an
obligation. A specific example may help. A western State was concerned,
partly for liability reasons, about designating swimming uses for a
number of waters where the physical conditions and other factors made
swimming, if it did occur, unwise. Although available information
indicated the actual swimming use was limited or nonexistent, the State
also wanted to ensure protection of that use, based on public health
considerations, should it occur. The issue for the State was striking
the appropriate balance between the two concerns: the possibility of
inadvertently encouraging swimming where it should not occur because of
safety considerations and protecting that use if it did occur. To
resolve this issue, the State designated these waters for secondary
contact recreation but assigned primary contact recreation
bacteriological criteria to provide an appropriate level of protection
should swimming occur, however unlikely. In this way, the State felt it
did not inappropriately encourage swimming in these waters, but if
swimming did occur, the required water quality would provide an
appropriate level of protection. This is an approach to the
``incidental use'' issue, discussed in the existing use section of this
chapter, that, while acknowledging uncertainty, errs on the side of
protectiveness.
Consistency
ly. In this way, the State felt it
did not inappropriately encourage swimming in these waters, but if
swimming did occur, the required water quality would provide an
appropriate level of protection. This is an approach to the
``incidental use'' issue, discussed in the existing use section of this
chapter, that, while acknowledging uncertainty, errs on the side of
protectiveness.
Consistency
EPA has provided guidance on implementing the requirements in
Sec. 131.10(g). Although EPA believes the guidance has been fairly
comprehensive and has functioned reasonably well, the growing number
and recurring nature of the questions raised about implementation of
the use removal criteria have convinced EPA to solicit comments on the
need for additional guidance or regulatory changes to ensure
appropriate and consistent application of the use removal criteria.
As indicated in the introduction to this discussion, one of the
reoccurring concerns about implementation of Secs. 131.10(j) and
131.10(g) with respect to designating or removing uses, is that to
some, there are instances of inconsistency in the way the
Sec. 131.10(g)(1)-(6) criteria are interpreted by EPA, the States or
the Tribes. One example that has been cited is that the application of
the fish consumption use is dissimilar in different regions of the
country. In one area of the country, some maintain, the fish
consumption use is applied to all waters assigned any aquatic life use
without regard to whether or not there is a credible exposure pathway
to humans by way of contaminated fish. In other areas of the country,
the application of the fish consumption use allows consideration of
occurrence, size and species of fish present and evidence that fishing
actually occurs as a basis for concluding that there is a potential
exposure pathway and the use should be designated. An associated
consistency issue has to do with the manner in which the terms in
Sec. 131.10(g) are interpreted
her areas of the country,
the application of the fish consumption use allows consideration of
occurrence, size and species of fish present and evidence that fishing
actually occurs as a basis for concluding that there is a potential
exposure pathway and the use should be designated. An associated
consistency issue has to do with the manner in which the terms in
Sec. 131.10(g) are interpreted. An example is the term ``feasible'' in
criterion number 4. Feasibility could be based on technical
considerations, such as the ability to operate an impoundment in an
efficient manner that does not degrade water quality, as EPA intended
when it originally wrote the regulation. Alternatively, some have
suggested that feasibility could be based on economic considerations or
a balanced consideration of cost and technology (EPA's current thinking
is that the term ``feasible'' in use removal criterion number 4,
regarding the operation of dams should continue to refer to technical
feasibility and not to economic feasibility. Criterion number 6, not
number 4, is the appropriate avenue to address economic feasibility of
attaining the designated use because it establishes an appropriate test
of economic infeasibleness.)
EPA's view is that the use removal criteria should be clear and
consistently interpreted. Questions and/or positions such as those
described above suggest there may be a need for additional guidance on
or interpretation of Sec. 131.10(g) to ensure the Sec. 131.10(g)
criteria are consistently interpreted and applied, and to address
whether review under Sec. 131.10(g) could be done for categories of
sources.
c. Use Attainability Analysis. A use attainability analysis (UAA)
is a structured scientific assessment of the factors affecting the
attainment of uses specified in section 101(a)(2) of the Act (the
``fishable/swimmable'' uses). The factors to be considered in such an
analysis include the physical, chemical, biological, and economic use
removal
10(g) could be done for categories of
sources.
c. Use Attainability Analysis. A use attainability analysis (UAA)
is a structured scientific assessment of the factors affecting the
attainment of uses specified in section 101(a)(2) of the Act (the
``fishable/swimmable'' uses). The factors to be considered in such an
analysis include the physical, chemical, biological, and economic use
removal
criteria described in the current regulation (40 CFR 131.10(g)(1)-(6)).
The current regulation (40 CFR 131.10(j)) establishes the requirement
that States and Tribes conduct a UAA when designating uses that do not
include the section 101(a)(2) uses, removing section 101(a)(2) uses, or
designating new subcategories of section 101(a)(2) uses that require
less stringent criteria.
New Information for Waters Without Section 101(a)(2) Use Designations
The current regulation (Sec. 131.20(a)) specifically requires the
re-examination of water bodies with less than Section 101(a)(2) use
designations every three years to determine if new information has
become available. If new information indicates that a use is
attainable, the State or Tribe is to revise the use accordingly. EPA
interprets the current regulation as requiring review of past UAA-based
use designation decisions when there is new information that could have
a bearing on that use designation decision.
The 1983 preamble to the regulation explained that a State or Tribe
need only conduct a UAA once for a given water body. The preamble went
on to explain, however, that where the UAA is used as justification for
removing a section 101(a)(2) use or failing to designate a section
101(a)(2) use, the State is required to review the basis for that
decision in subsequent triennial reviews to determine whether or not
the circumstances have changed in a way that would alter the original
decision
for a given water body. The preamble went
on to explain, however, that where the UAA is used as justification for
removing a section 101(a)(2) use or failing to designate a section
101(a)(2) use, the State is required to review the basis for that
decision in subsequent triennial reviews to determine whether or not
the circumstances have changed in a way that would alter the original
decision. EPA recognizes that the requirement to review new information
about past UAA-based use designation decisions, because it creates a
demand for further analysis of the decision by the State or Tribe, can
serve to discourage States and Tribes from generating new information.
EPA's current thinking is that interested parties should be encouraged
to generate and consider relevant information that could have a bearing
on the use designation decision for a particular water and that the
trigger for reviewing past use designation decisions should be clear.
In addition, EPA is interested in comments on whether there should be
some definable burden placed on the State or Tribe to actively seek
information for such waters. The Agency may need to be more specific in
requiring that States and Tribes specify the procedures they will use
in identifying water bodies where ``new information'' has become
available and ensuring new information is generated where appropriate.
UAAs and Non Section 101(a)(2) Uses
The current regulation indicates that the UAA requirements apply to
uses specified in Section 101(a)(2) of the Act
ency may need to be more specific in
requiring that States and Tribes specify the procedures they will use
in identifying water bodies where ``new information'' has become
available and ensuring new information is generated where appropriate.
UAAs and Non Section 101(a)(2) Uses
The current regulation indicates that the UAA requirements apply to
uses specified in Section 101(a)(2) of the Act. The regulation at 40
CFR 131.10(j) specifically requires that a State or Tribe conduct a UAA
where: ``(1) the State [or Tribe] designates or has designated uses
that do not include the uses specified in Section 101(a)(2) of the Act,
or (2) the State [or Tribe] wishes to remove a designated use that is
specified in Section 101(a)(2) of the Act or to adopt subcategories of
uses specified in Section 101(a)(2) of the Act which require less
stringent criteria.'' Although the regulation at 40 CFR 131.10(g) has
always provided that States and Tribes may not remove a designated use
unless they can demonstrate that attaining the use is not feasible, the
regulatory language does not expressly require the State or Tribe to
conduct a UAA as defined in 40 CFR 131.10(j) before a use not
referenced in section 101(a)(2) may be removed. As a result, some have
questioned whether or not the UAA requirements actually apply to uses
other than those referenced in Section 101(a)(2), such as water supply
or agriculture. EPA's position on this issue is that, while the
analysis to downgrade a use not included in CWA section 101(a)(2) is
not expressly referenced in Sec. 131.10(j), 40 CFR 131.10(g) of its own
terms requires the State or Tribe to document whether any use being
considered for removal is attainable under the six criteria outlined in
that section. Where such a use is shown to be attainable, it may not be
removed (downgraded). In practice, EPA believes there is no cognizable
difference between these two analyses
s
not expressly referenced in Sec. 131.10(j), 40 CFR 131.10(g) of its own
terms requires the State or Tribe to document whether any use being
considered for removal is attainable under the six criteria outlined in
that section. Where such a use is shown to be attainable, it may not be
removed (downgraded). In practice, EPA believes there is no cognizable
difference between these two analyses. EPA is thus considering whether
it should combine these elements of 40 CFR 131.10(g) and 131.10(j) or
otherwise clarify the relationship between these provisions in the
regulation. Given EPA's position that the regulation requires the use
attainability of a water body to be documented before any of its uses
may be removed, EPA is interested in a discussion of specific
attainability issues that might arise in applying the UAA requirements
to non-Section 101(a)(2) uses such as water supply or agriculture.
Information in UAAs
The regulation is not specific about what a UAA should contain
other than the general description contained in the definition of a UAA
at 40 CFR 131.3(g). Instead, EPA has issued various national and
regional guidance documents to assist with the completion of such
analyses. Some have suggested, however, that the regulation be amended
to provide more specificity on information needed in a UAA. Topics for
consideration might include: what specific questions should a use
attainability analysis address? what are the data requirements? and
what are the requirements for reporting the results of the analysis?
EPA seeks comment on this issue.
UAAs and Refinement of ``Fishable/Swimmable'' Use Designation
the regulation be amended
to provide more specificity on information needed in a UAA. Topics for
consideration might include: what specific questions should a use
attainability analysis address? what are the data requirements? and
what are the requirements for reporting the results of the analysis?
EPA seeks comment on this issue.
UAAs and Refinement of ``Fishable/Swimmable'' Use Designation
As long as a State or Tribe designates uses that fall within the
broad range of uses consistent with the section 101(a)(2) goals, there
is no requirement to conduct a UAA. In fact, 40 CFR 131.10(k)
explicitly states that ``a State is not required to conduct a use
attainability analysis . . . whenever designating uses which include
those specified in section 101(a)(2) of the Act.'' As a result, there
does not appear to be a mechanism that ensures State or Tribal waters
are not under-classified (i.e., a use subcategory is designated for a
water when a higher or more protective subcategory is actually
attainable). Some have suggested that the regulation be amended or
guidance clarified to require a UAA (i.e., a structured scientific
assessment) whenever an aquatic life use is designated (or refined) to
ensure the level of protection assigned matches the potential for the
water body. EPA's current thinking is that there needs to be a solid
underlying rationale for use designations. One of the emerging themes
from EPA and the larger community of parties interested in further
protecting water quality is that refining designated uses and tailoring
suites of criteria to the refined uses in watersheds is an important
future direction of this program. Clearly for this approach to succeed,
a solid evaluation of attainability must be at the heart of any
decision to characterize designated uses in greater detail than has
been the norm. EPA is interested in comment on this view, in particular
as it relates to the rebuttable presumption that the generic uses
described as fishable/swimmable are attainable.
tant
future direction of this program. Clearly for this approach to succeed,
a solid evaluation of attainability must be at the heart of any
decision to characterize designated uses in greater detail than has
been the norm. EPA is interested in comment on this view, in particular
as it relates to the rebuttable presumption that the generic uses
described as fishable/swimmable are attainable.
Thresholds for Aquatic Life Use Designation
In part 2 of this section, ``Refined Designated Uses'', there is a
discussion explaining EPA's position that the definition of ``aquatic
life'' is not limited to those waters that support ``fisheries.'' That
discussion explains that a more biologically-grounded definition of
aquatic life would be sufficiently expansive to include aquatic
communities made up, for example,
entirely of invertebrate organisms. This broad definition of ``aquatic
life uses'' has an impact on the manner in which UAAs are planned and
evaluated. The current regulation allows States and Tribes to designate
uses for certain waters that do not include the section 101(a)(2) uses,
where such uses are not attainable. As a result, some States and Tribes
have waters which have not been assigned an aquatic life designated
use. However, if aquatic life uses are defined broadly, as EPA believes
they should be, there would be very few, if any, waters that would not
be considered as supporting some type of existing aquatic life use.
Aquatic communities form a continuum, making it difficult, if not
impossible in the biological sense, to identify where the threshold for
aquatic life use begins. As a result, some have suggested that a broad
definition of aquatic life would appear to revoke the option of
excluding aquatic life protection from a water body since essentially
all waters support some level of aquatic life
use.
Aquatic communities form a continuum, making it difficult, if not
impossible in the biological sense, to identify where the threshold for
aquatic life use begins. As a result, some have suggested that a broad
definition of aquatic life would appear to revoke the option of
excluding aquatic life protection from a water body since essentially
all waters support some level of aquatic life. They have suggested,
therefore, that there is a need to identify a threshold, based on some
physical rather than biological limitation, that could be used as an
acceptable justification for concluding that an aquatic life use is not
attainable. For example, some States and Tribes have urged the use of a
flow-based threshold to justify a conclusion that an aquatic life use
in not attainable. Generally, ephemeral waters (waters whose channel
does not intersect the ground water table and which are dependent on
precipitation events for their flow) are suggested as an appropriate
threshold. In a biological sense, this may not be a satisfactory
solution since there are ecologically important ephemeral waters which
should receive aquatic life use protection regardless of the temporal
nature of the flow. This is especially true for many ephemeral
wetlands. EPA is considering whether changes are needed in the
regulation or guidance to address whether, and under what
circumstances, UAAs may be used to justify a non-aquatic life use
classification, given the broad range of aquatic communities that may
exist.
Request for Comments on Use Removal and Use Attainability
temporal
nature of the flow. This is especially true for many ephemeral
wetlands. EPA is considering whether changes are needed in the
regulation or guidance to address whether, and under what
circumstances, UAAs may be used to justify a non-aquatic life use
classification, given the broad range of aquatic communities that may
exist.
Request for Comments on Use Removal and Use Attainability
EPA seeks comment on the following questions:
1. Although EPA believes the use removal criteria in Sec. 131.10(g)
have functioned reasonably well, questions have been raised about the
applicability of specific section 131.10(g) criteria and the manner in
which EPA interprets those criteria. EPA seeks comment on the use
removal criteria. Are the six criteria sufficiently comprehensive or
should other factors be considered as a basis for removing designated
uses? Are the criteria too comprehensive and are certain of the
criteria inappropriate as a basis for designated use removal? Is there
a need to modify the existing criteria to more clearly address the full
range of use removal issues that have developed since the regulation
was originally published?
2. Even with the statements in the current regulation, questions
have been raised about the minimum requirements of a use attainability
analysis. Is there need for further clarification in guidance, policy
or in the regulatory text on this issue?
3. Triennial review of UAA-based use designations that do not
include section 101(a)(2) uses, are currently triggered only when new
information becomes available. Should EPA require that States and
Tribes specify procedures they will use in identifying what constitutes
new information and thus when the review of the UAA-based use
designations is required?
4
he regulatory text on this issue?
3. Triennial review of UAA-based use designations that do not
include section 101(a)(2) uses, are currently triggered only when new
information becomes available. Should EPA require that States and
Tribes specify procedures they will use in identifying what constitutes
new information and thus when the review of the UAA-based use
designations is required?
4. Although 40 CFR 131.10(g) requires an assessment of
attainability before removal of any designated use, the regulatory
language does not expressly require an analysis called a UAA as
specified in 40 CFR 131.10(j) any time a State or Tribe seeks to
designate a non section 101(a)(2) use. EPA, however, believes that the
analysis under either provision is equivalent. Should the current
regulation be revised to clarify that the UAA requirements apply to any
``downgrade'' of a use and not just the CWA Section 101(a)(2) uses? Can
any needed clarification be achieved through guidance or policy? EPA
would be interested in comments on factors to be considered in
evaluating the attainability of non Section 101(a)(2) uses, such as
water supply or agricultural uses which generally take place after the
water is diverted from the natural water body.
5. How should the water quality standards regulation, guidance or
policy be modified to provide more specificity on appropriate factors
to consider in developing a use attainability analysis?
6. In order to ensure the present aquatic life use designation (or
use subcategory) matches the attainable level of aquatic lif
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