View Rule

The EPA proposed changes to the water quality standards (WQS) regulation to improve its effectiveness in helping restore and maintain the Nation's Waters. The core of the current WQS regulation has been in place since 1983. Since then, a number of issues have been raised by stakeholders or identified by the EPA in the implementation process that will benefit from clarification and greater specificity. The proposed rule addresses the following six key areas: 1) Administrator's determination that new or revised WQS are necessary, 2) designated uses, 3) triennial review requirements, 4) antidegradation, 5) variances to water quality standards, and 6) compliance schedule authorizing provisions. These revisions will allow the EPA, states and authorized tribes to better achieve program goals by providing clearer more streamlined requirements to facilitate enhanced water resource protection.

Statement of Need: The core requirements of the current WQS regulation have been in place for over 30 years. These requirements have provided a strong foundation for water quality-based controls, including water quality assessments, impaired waters lists, and total maximum daily loads (TMDLs) under CWA section 303(d), as well as for water quality-based effluent limits (WQBELs) in NPDES discharge permits under CWA section 402. As with the development and operation of any program, however, a number of policy and technical issues have recurred over the past 30 years in individual standards reviews, stakeholder comments, and litigation that the EPA believes would be addressed and resolved more efficiently by clarifying, updating and revising the federal WQS regulation to assure greater public transparency, better stakeholder information, and more effective implementation. The basic structure of the water quality standards regulation (40 CFR part 131) was last revised in November 1983. The EPA added tribal provisions in 1991, "Alaska rule" provisions in 2000, and BEACH Act rule provisions in 2004. At the 15-year point (July 1998), the EPA issued a comprehensive advance notice of proposed rulemaking (ANPRM) and conducted an extensive dialogue with states and the public on over 130 discrete issues. The ANPRM led to some program redirections, but EPA did not revise the regulation itself at that time. The EPA has proposed targeted changes to the WQS regulation that aim to improve the regulation's effectiveness in restoring and maintaining the chemical, physical and biological integrity of the Nation's waters, and to clarify and simplify regulatory requirements.

Summary of the Legal Basis: The CWA establishes the basis for the current WQS regulation and program. Section 303(c) of the Act addresses the development of state and authorized tribal WQS and provides for the following: (1) WQS shall consist of designated uses and water quality criteria based upon such uses; (2) States and authorized tribes shall establish WQS considering the following possible uses for their waters-propagation of fish, shellfish and wildlife, recreational purposes, public water supply, agricultural and industrial water supplies, navigation, and other uses; (3) State and tribal standards must protect public health or welfare, enhance the quality of water, and serve the purposes of the Act; (4) States and tribes must review their standards at least once every 3 years; and (5) the EPA is required to review any new or revised state and tribal standards, and is also required to promulgate federal standards where the EPA finds that new or revised state or tribal standards are not consistent with applicable requirements of the Act or in situations where the Administrator determines that federal standards are necessary to meet the requirements of the Act. The EPA established the core of the current WQS regulation in a final rule issued in 1983. This rule strengthened previous provisions that had been in place since 1977 and moved them to a new 40 CFR part 131 (54 FR 51400, November 8, 1983). The resulting regulation describes how the WQS envisioned in the CWA are to be administered. It clarifies the content of standards and establishes more detailed provisions for implementing the provisions of the Act.

Alternatives: In support of the 1983 regulation, the EPA has issued a number of guidance documents that have provided guidance on the interpretation and implementation of the WQS regulation, and on scientific and technical analyses that are used in making decisions that would impact WQS. In 1998, the EPA issued an Advance Notice of Proposed Rulemaking (ANPRM) to discuss and invite comment on over 130 aspects of the federal WQS regulation and program, with a goal of identifying specific changes that might strengthen water quality protection and restoration, facilitate watershed management initiatives, and incorporate evolving water quality criteria and assessment science into state and tribal WQS programs. (63 FR 36742, July 7, 1998). In response, the EPA received over 3,200 specific written comments from over 150 comment letters. The EPA also held three public meetings during the 180-day comment period where additional comments were received and discussed. Although the EPA chose not to move forward with a rulemaking after the ANRPM, as a result of the input received, the EPA identified a number of high priority issue areas for which the Agency has developed guidance, provided technical assistance and continued further discussion and dialogue to assure more effective program implementation. As with the development and operation of any program, however, a number of policy and technical issues have recurred over the past 30 years that the EPA believes would be addressed and resolved more efficiently by clarifying, updating and revising the federal WQS regulation to assure greater public transparency, better stakeholder information, and more effective implementation.

Anticipated Costs and Benefits: Because this proposal will not establish any requirements directly applicable to regulated entities, the focus of the EPA's economic analysis is to estimate the potential administrative burden and costs to state, tribal, and territorial governments, and the EPA. In the proposal the EPA is considering whether to include a requirement that antidegradation implementation methods be formally adopted as WQS and thus subject to the EPA's review and approval or disapproval. This additional requirement would require affected entities to develop or revise antidegradation implementation methods, and adopt the implementation methods in WQS, resulting in one-time (nonrecurring) burden and costs. The total annual costs for this proposal with the requirement to adopt antidegradation implementation methods as WQS is estimated to range from $5.98 million to $9.27 million per year. The total annual costs for this proposal without the requirement to adopt antidegradation implementation methods as WQS is estimated to range from $5.84 million to $9.01 million per year. States, tribes, stakeholders, and the public will benefit from the proposed clarifications of the WQS regulations by ensuring better utilization of available WQS tools that allow states and tribes the flexibility to implement their WQS in an efficient manner while providing transparency and open public participation. Although associated with potential administrative burden and costs in some areas, this proposal has the potential to partially offset these costs by reducing regulatory uncertainty and consequently increasing overall program efficiency. Furthermore, more efficient and effective implementation of state and tribal WQS has the potential to provide a variety of economic benefits associated with cleaner water including the availability of clean, safe, and affordable drinking water, water of adequate quality for agricultural and industrial use, and water quality that supports the commercial fishing industry and higher property values. Nonmarket benefits of this proposal include the protection and improvement of public health and greater recreational opportunities. The EPA acknowledges that achievement of any benefits associated with cleaner water would involve additional control measures, and thus costs to regulated entities and non-point sources, that have not been included in the economic analyses for this proposed rule. The EPA has not attempted to quantify either the costs of such control measures that might ultimately be required as a result of this rule, or the benefits they would provide.

Risks: Reducing regulatory uncertainty has the impact of increasing overall program efficiency.