[Federal Register Volume 68, Number 197 (Friday, October 10, 2003)]
[Proposed Rules]
[Pages 58758-58790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25525]



[[Page 58757]]

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Part II





Environmental Protection Agency





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40 CFR Part 131



Water Quality Standards for Oregon; Proposed Rule

  Federal Register / Vol. 68, No. 197 / Friday, October 10, 2003 / 
Proposed Rules  

[[Page 58758]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[FRL-OW-7570-3]


Water Quality Standards for Oregon

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This document proposes use designations and temperature 
criteria for the protection of salmonids in Oregon waters, except in 
the Columbia River. This document also proposes an intergravel 
dissolved oxygen (IGDO) criterion to protect salmonid spawning wherever 
salmonid spawning is the designated use. In addition, this rule 
proposes methods to implement Oregon's existing antidegradation policy.

DATES: EPA will accept public comments on this proposed rule until 
November 10, 2003. EPA will consider comments postmarked after this 
date only to the extent that time permits. EPA is sponsoring three 
public hearings on today's proposed water quality standards for Oregon 
on October 22 (5 p.m. to 9 p.m.), October 23 (2 p.m. to 6 p.m.), and 
October 24, 2003 (10 a.m. to 1 p.m.).

ADDRESSES: Send your comments by mail to Valerie Badon, ORC-158, U.S. 
EPA Region 10, 1200 Sixth Avenue, Seattle, Washington 98101. Comments 
may also be submitted electronically, or through hand delivery/courier. 
Follow the detailed instructions as provided in section I.C. of the 
SUPPLEMENTARY INFORMATION section. The following public hearings will 
be held:
    October 22 hearing: State of Oregon Building, 800 NE. Oregon 
Street, Portland, Oregon.
    October 23 hearing: Eugene Public Library, 100 W. 10th Avenue, 
Eugene, Oregon.
    October 24 hearing: Bend Community Center, 1036 NE. 5th Street, 
Bend, Oregon.
    The administrative record for today's proposed rule is available 
for public inspection at EPA Region 10's Oregon Operations Office, 811 
SW. 6th Avenue, 3rd Floor, Portland, Oregon 97204, between 8 a.m. and 4 
p.m. Please call Tom Townsend at 503-326-3250 for appointments to 
review the record. A reasonable fee for copying will apply.

FOR FURTHER INFORMATION CONTACT: Mary Lou Soscia at U.S. EPA Region 
10's Oregon Operations Office by phone at: 503-326-3250, or by e-mail 
at: [email protected]. You may also contact Cara Lalley at U.S. 
EPA Headquarters by phone at 202-566-0057, or by e-mail at: 
[email protected].

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

I. General Information
    A. Potentially Affected Entities
    B. How Can I Get Copies of This Document and Other Related 
Information?
    1. Docket
    2. Electronic Access
    C. How and to Whom Do I Submit Comments?
    1. Electronically
    2. By Mail
    3. By Hand Delivery or Courier
    D. What Should I Consider as I Prepare My Comments for EPA?
II. Background
    A. What Are the Statutory and Regulatory Requirements Relevant 
to This Action?
    B. What Actions Have Oregon and EPA Taken Leading to Today's 
Action?
III. What Federal Water Quality Standards is EPA Proposing Today?
    A. Background
    B. Federal Use Designations for Specific Water Body Segments
    1. Background
    2. Salmonid Use Designations
    3. Specific Locations and Times for the Salmonid Uses
    C. Temperature Criteria for Salmonid Uses
    1. Background
    2. EPA's Basis for the Proposed Numeric Criteria
    3. Numeric Temperature Water Quality Criteria for EPA's Salmonid 
Use Designations
    4. Alternative Criteria
    D. IGDO Criterion for Salmonid Spawning
    1. Background
    2. EPA's Proposed IGDO Criterion
    E. Antidegradation Implementation Methods
    1. Background
    2. Why is EPA Proposing Antidegradation Implementation Methods 
for the State of Oregon?
    3. What Antidegradation Implementation Methods is EPA Proposing 
for the State of Oregon?
    F. Effect of this Proposed Rule on the State's Water Quality 
Programs
IV. Economic Analysis
    A. Identifying Affected Facilities
    B. Method for Estimating Potential Compliance Costs
    C. Results
    D. Total Statewide Costs Associated with NPDES Permitted 
Facilities
    E. Small Government and Business Analysis
V. Alternative Regulatory Approaches and Implementation Mechanisms
    A. Background
    B. Process for Federal Agencies Responsible for Federally Owned 
or Operated Dams to Request EPA Modify Water Quality Standards
    C. Variances
    D. Heat Load and Thermal Plume Provisions
    E. EPA's Basis for Allowing Flexibility Due to Unusually Warm 
Weather Conditions
    F. Total Maximum Daily Loads and Impaired Water Listings
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

I. General Information

A. Potentially Affected Entities

    Citizens concerned with water quality in Oregon may be interested 
in this proposed rulemaking. Entities discharging pollutants to waters 
of the United States in Oregon could be indirectly affected by this 
rulemaking because water quality standards are used in determining 
water quality-based effluent limitations included in National Pollutant 
Discharge Elimination System (NPDES) permits. Categories and entities 
that may indirectly be affected include:

------------------------------------------------------------------------
                                              Examples of Potentially
                Category                         Affected Entities
------------------------------------------------------------------------
Industry................................  Industries discharging
                                           pollutants to surface waters
                                           in Oregon.
Municipalities..........................  Publicly-owned treatment works
                                           discharging pollutants to
                                           surface waters in Oregon.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding NPDES entities likely to be affected by 
this action. This table lists the types of entities that EPA is now 
aware could potentially be affected by this action. Other types of 
entities not listed in this table could also be affected. To determine 
whether your facility may be affected by this action, you should 
carefully examine today's rule. If you have questions regarding the 
applicability of this action to a particular entity, consult one of the 
persons listed in the preceding FOR FURTHER INFORMATION CONTACT 
section.

[[Page 58759]]

B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action at EPA Region 10's Oregon Operations Office, 811 SW. 6th Avenue, 
3rd Floor, Portland, Oregon 97204, under Docket ID No. OW-2003-0068. 
The official public docket consists of the documents specifically 
referenced in this action, any public comments received, and other 
information related to this action. Although a part of the official 
docket, the public docket does not include Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. The official public docket is the collection of materials 
that is available for public viewing under ID No. OW-2003-0068, or 
Proposed Federal Water Quality Standards for Oregon. The Docket 
Facility is open from 8 a.m. to 4 p.m., Monday through Friday, 
excluding legal holidays. Please call Tom Townsend at 503-326-3250 for 
appointments to review the record. A reasonable fee will be charged for 
copies.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in the EPA electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility identified in I.B.1. EPA intends to work towards 
providing electronic access to all of the publicly available docket 
materials through EPA electronic public docket.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's Electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available through the docket facility 
identified in I.B.1.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    For additional information about EPA's electronic public docket, 
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

C. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' While EPA is 
not required to consider these late comments, we will make every 
attempt to consider them.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD-ROM you submit, and in any cover letter accompanying 
the disk or CD-ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To 
access EPA's electronic public docket from the EPA Internet home page, 
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once 
in the system, select ``search,'' and then key in Docket ID OW-2003-
0068. The system is an ``anonymous access'' system, which means EPA 
will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to [email protected], attention Docket ID No. OW-2003-0068. In contrast to 
EPA's electronic public docket, EPA's e-mail system is not an 
``anonymous access'' system. If you send an e-mail comment directly to 
the docket without going through EPA's electronic public docket, EPA's 
e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM 
that you mail to the address identified in I.C.2. These electronic 
submissions will be accepted in WordPerfect or ASCII file format. Avoid 
the use of special characters and any form of encryption.
    2. By Mail. Send your comments to: Valerie Badon, ORC-158, U.S. EPA 
Region 10, 1200 Sixth Avenue, Seattle, Washington 98101, Attention 
Docket ID No. OW-2003-0068.

[[Page 58760]]

    3. By Hand Delivery or Courier: Deliver your comments to the 
address identified in I.C.2, Attention Docket ID No. OW-2003-0068. Such 
deliveries are only accepted between 8 a.m. and 4 p.m.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

II. Background

A. What Are the Statutory and Regulatory Requirements Relevant to This 
Action?

    The purpose of the Clean Water Act (CWA) is to restore and maintain 
the chemical, physical and biological integrity of the Nation's waters. 
Section 101(a)(2) of the CWA establishes as an interim goal ``water 
quality which provides for the protection and propagation of fish, 
shellfish, and wildlife and * * * recreation in and on the water,'' 
wherever attainable. This national goal is commonly referred to as the 
``fishable/swimmable'' goal of the CWA. (Hereafter, the fishable/
swimmable goals are referred to as CWA section 101(a) goal uses.) 
Section 303(c)(2)(A) requires State and Tribal water quality standards 
to ``protect the public health and welfare, enhance the quality of 
water, and serve the purposes of this Act.'' Further, States and 
authorized Tribes are required to take into consideration the waters' 
use and value for public water supplies, propagation of fish and 
wildlife, recreational purposes, and agricultural, industrial, and 
other purposes, and also take into consideration their use and value 
for navigation. 33 U.S.C. 1313(c)(2)(A). EPA's regulations at 40 CFR 
131.10 describe the process States and authorized Tribes must follow 
and the analyses States must conduct prior to designating any uses that 
do not contain the CWA section 101(a) goal uses.
    Section 303(c) of the CWA, 33 U.S.C. 1313(c), requires States and 
authorized Tribes to adopt water quality standards for waters of the 
United States within their applicable jurisdictions. Section 303(c) and 
EPA's implementing regulations at 40 CFR part 131 require State and 
Tribal water quality standards to include the designated use or uses to 
be made of the water, the criteria necessary to protect those uses, and 
an antidegradation policy. States and authorized Tribes may also 
include in their standards policies generally affecting the standards' 
application and implementation. See 40 CFR 131.13. These policies are 
subject to EPA review and approval. States and authorized Tribes are 
also required to review their water quality standards at least once 
every three years and, if appropriate, revise or adopt new standards. 
33 U.S.C. 1313(c)(1). States and authorized Tribes are required to 
submit new or revised water quality standards to EPA for review and 
approval or disapproval. 33 U.S.C. 1313(c)(2)(A). If EPA approves a new 
or revised water quality standard submitted by a State or Tribe, it 
takes effect for CWA purposes. 40 CFR 131.21. If EPA disapproves a new 
or revised water quality standard submitted by a State or Tribe, EPA 
must promulgate its own water quality standard for the State or Tribe, 
when necessary to replace the disapproved water quality standards.
    Finally, section 303(c)(4)(B) of the CWA authorizes the 
Administrator to determine, even in the absence of a State or Tribal 
submission, that a new or revised standard is needed to meet the CWA's 
requirements. The authority to make a determination under CWA section 
303(c)(4)(B) resides exclusively with the Administrator; it has not 
been delegated.
    Section 7 of the Endangered Species Act (ESA) requires Federal 
agencies, in consultation with the U.S. Fish and Wildlife Service (FWS) 
and the National Oceanic and Atmospheric Administration's National 
Marine Fisheries Service (NOAA Fisheries) (collectively, ``the 
Services''), to ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of habitat of such species which 
have been designated as critical. Consultation is designed to assist 
Federal agencies in complying with the requirements of section 7 by 
supplying a process within which FWS and NOAA Fisheries provide such 
agencies with advice and guidance on whether an action complies with 
the substantive requirements of the ESA. Approval of State or Tribal 
water quality standards and Federal promulgation of water quality 
standards are considered Federal actions, and hence EPA is required to 
comply with the requirements of ESA section 7 prior to taking final 
action on this proposed rule.
    As a result of EPA's responsibilities and duties under section 7 of 
the ESA, EPA has initiated informal consultation with FWS and NOAA 
Fisheries on this rulemaking. As part of this process, EPA is preparing 
a biological assessment document that it will transmit to FWS and NOAA 
Fisheries and include in the record if this rule is finalized.

B. What Actions Have Oregon and EPA Taken Leading to Today's Action?

    On July 23, 1996, the State of Oregon submitted revisions to its 
water quality standards to EPA for review, and approval or disapproval, 
pursuant to CWA section 303(c)(2)(A). Certain of these revisions 
identified specific numeric temperature criteria to protect critical 
life stages of fish in the family Salmonidae, commonly known as 
``salmonids.'' The Salmonidae family includes the genus Oncorhynchus, 
which consists of Pacific salmon and trout. There are seven species of 
Pacific salmon within the genus Oncorhynchus, five of which are found 
in North America: pink (O. gorbuscha), chum (O. keta), sockeye (O. 
nerka), coho (O. kisutch), and chinook (O. tshawytscha). Pacific trout 
within the genus Oncorhynchus include the anadromous steelhead, O. 
mkiss, and coastal cutthroat, O. clarki. clarki; and the non-anadromous 
rainbow trout, O. mkiss. Also in the family Salmonidae is the genus 
Salvelinus, which includes the bull trout species, confluentus.
    Oregon's 1996 revised temperature criteria were intended to protect 
salmon rearing (17.8[deg]C/64[deg]F), salmon spawning (12.8[deg]C/
55[deg]F), and bull trout (10[deg]C/50[deg]F). This included a revised 
temperature criterion for salmonid rearing in the Lower Willamette 
River from 21[deg]C/70[deg]F to 20[deg]C/68[deg]F. Oregon also 
submitted an IGDO criterion of 6.0 milligrams per liter (mg/L) for the 
protection of salmonid spawning. In addition, Oregon adopted new or 
revised narrative criteria and other provisions establishing a process 
for adopting site-specific numeric criteria or temporary revisions to 
its standards.

[[Page 58761]]

    On September 15, 1998, EPA entered into formal consultation under 
section 7(a)(2) of the ESA with both NOAA Fisheries and FWS with regard 
to the effect of its approval decision regarding the new or revised 
standards on listed and endangered species including chinook, coho, 
sockeye, chum, coastal cutthroat, steelhead, and bull trout. On July 1, 
1999, FWS issued a biological opinion that EPA's approval of the 
State's standards revisions was not likely to jeopardize the continued 
existence of listed threatened and endangered species, including bull 
trout. On July 7, 1999, NOAA Fisheries issued a biological opinion that 
EPA's approval of the standards revisions was not likely to jeopardize 
the continued existence of listed threatened and endangered species. 
Included on the Services' lists of threatened and endangered species 
were:
    [sbull] Snake River Sockeye Salmon;
    [sbull] Upper Columbia River spring chinook salmon;
    [sbull] Upper Columbia River steelhead;
    [sbull] Snake River spring/summer, Snake River fall, Upper 
Willamette River, Lower Columbia River, and Southern Oregon/California 
Coastal chinook salmon;
    [sbull] Oregon Coast and Southern Oregon/Northern California coho 
salmon;
    [sbull] Snake River Basin, Middle and Lower Columbia, Upper 
Willamette, Oregon Coast, and Klamath Mountains Province steelhead 
trout;
    [sbull] Columbia River Chum Salmon;
    [sbull] Umpqua River coastal cutthroat trout;
    [sbull] Southwestern Washington/Columbia River coastal cutthroat 
trout; and
    [sbull] Columbia River Basin and Klamath River Basin Bull Trout.
    As part of the consultation action, EPA and the State of Oregon 
also committed to perform specific conservation measures under section 
7(a)(1) of the ESA. These measures were designed to address the 
Services' and EPA's concerns regarding Oregon's water quality standards 
and also to further investigate uncertainties regarding the water 
temperatures necessary to protect specific life stages of endangered 
salmonid species.
    On July 22, 1999, EPA approved all but one of the revised water 
quality standards submitted by Oregon, including the new and revised 
temperature, pH, dissolved oxygen, and bacteria standards. EPA 
disapproved the 20[deg]C/68[deg]F numeric criterion for salmonid 
rearing in the lower Willamette River because the State did not include 
a justification for how 20[deg]C/68[deg]F would protect salmonid 
rearing in view of record information showing that 20[deg]C/68[deg]F is 
not protective of salmonid rearing. (Letter to Michael Llewelyn, Oregon 
Department of Environmental Quality, from Randall Smith, EPA, July 22, 
1999; Memorandum to Randy Smith from Dru Keenan regarding Recommended 
Action, July 21, 1999). At that time, EPA took no action with respect 
to Oregon's existing water quality criteria for the Columbia River or 
its antidegradation implementation plan because Oregon had not 
submitted new or revised water quality standards for review on either 
matter.
    One of the conservation measures in NOAA Fisheries' biological 
opinion required EPA to establish and lead a region-wide effort to 
conduct a comprehensive review of the temperature requirements of 
critical life stages of salmonids in the Pacific Northwest, and 
ultimately to issue guidance recommending temperature criteria for 
their protection, which could be used as a basis for further revision 
of Oregon's standards if warranted. The reason for this conservation 
measure was that during the formal consultation process, it became 
evident to EPA, NOAA Fisheries, and FWS, and others that there was 
scientific uncertainty regarding the precise effects of various 
temperature regimes on the life stages of threatened and endangered 
salmonids. This three year effort concluded in April 2003 with the 
issuance of the ``EPA Region 10 Guidance for Pacific Northwest State 
and Tribal Temperature Water Quality Standards' (hereafter identified 
as the Temperature Guidance).
    Both EPA's approval action and NOAA Fisheries' Biological Opinion 
of ``no jeopardy'' were challenged in 2001 by Northwest Environmental 
Advocates in the U.S. District Court for the District of Oregon. 
Northwest Environmental Advocates v. EPA & NMFS, 268 F.Supp.2d 1255 (D. 
Or., Mar. 31, 2003). The plaintiff also alleged that EPA had a non-
discretionary duty to promulgate Federal water quality criteria for 
temperature for the lower Willamette River and the Columbia River, and 
to promulgate an implementation plan for Oregon's antidegradation 
policy.
    On March 31, 2003, the U.S. District Court in Oregon ruled that EPA 
had violated the CWA and the ESA when it approved in 1999 certain water 
quality standards for the protection of salmonids that were contained 
in Oregon's 1996 submission. Although the court deferred to EPA's 
scientific judgment regarding the protectiveness of the specific 
numeric temperature criteria, the court found that the temperature 
standards that EPA approved violated EPA's regulations and EPA's duty 
under section 7 of the ESA because Oregon had failed to designate 
``where and when'' these criteria would apply. The court directed EPA 
to rescind its approval of the criteria because the absence of ``time 
and place'' use designations failed to protect the use categories 
created by Oregon, in this case salmonid rearing, bull trout rearing 
and bull trout spawning. The court directed EPA to propose and 
promulgate new temperature water quality standards, or approve new 
State standards, to address this deficiency.
    The court also directed EPA to rescind its approval of a water 
quality criterion for intergravel dissolved oxygen for the protection 
of salmonid spawning. The court found that EPA's approval of the 6.0 
mg/L criterion adopted by Oregon was arbitrary and capricious based on 
record information showing that 6.0 mg/L would not adequately protect 
salmonid spawning and because Oregon had not made time and place use 
designations where the criterion would apply. Thus, the court ordered 
EPA to promulgate a new water quality criterion for this pollutant 
parameter or approve a new State criterion. The court also ordered EPA 
to promulgate an antidegradation implementation plan for Oregon waters 
or approve such a plan promulgated by Oregon. Finally, the court also 
found arbitrary and capricious NOAA Fisheries' determination that 
Oregon's water quality standards for temperature and IGDO would not 
jeopardize threatened and endangered species.
    The court ruled in favor of EPA regarding the Plaintiff's challenge 
to EPA's failure to establish Federal water quality criteria for 
temperature for the Columbia River for migration and rearing. EPA also 
successfully defended EPA's decision to approve certain narrative water 
quality criteria. Finally, the court agreed that EPA had met its 
obligations under ESA section 7(a)(1) to implement programs to conserve 
threatened salmon.
    On August 13, 2003, the court ordered EPA to sign proposed 
regulations by October 1, 2003, and either sign final regulations or 
approve new State regulations by March 2, 2004, for the following:
    (a) Water quality criteria for temperature for the lower Willamette 
River;
    (b) Methods for implementing the antidegradation policy adopted by 
Oregon, pursuant to 40 CFR 131.12;
    (c) Numeric water quality criteria for temperature for the 
protection of salmonid rearing and bull trout rearing

[[Page 58762]]

and spawning, accompanied by specific time and place designations for 
waters of the United States in Oregon; and
    (d) A water quality criterion for intergravel dissolved oxygen for 
Oregon's waters for the protection of salmonid spawning in waters of 
the United States in Oregon.
    EPA's usual practice when promulgating a water quality standard is 
to provide an opportunity for a public hearing, provide the public with 
45 days notice of the hearing, and establish a public comment period 
that extends at least until the date of the hearing. 40 CFR 25.5(b). 
However, the regulations also allow for a shorter comment period and a 
shorter period of public notice prior to the hearing when necessary to 
accommodate the specific provisions of court orders. EPA is providing a 
30-day comment period from the date of publication. EPA believes a 30-
day comment period is reasonable in this case for several reasons. 
First, EPA is compelled by court order to take final action on this 
proposal by March 2, 2004. That schedule precludes a longer comment 
period. Second, a significant portion of the water quality standards 
being proposed today has already been the subject of considerable 
public input in connection with the Temperature Guidance. In the course 
of developing that guidance, which EPA Region 10 issued in April 2003, 
EPA published and considered public comment on two drafts and engaged 
in considerable stakeholder communication. With the exception of the 
use designations and antidegradation implementation procedures proposed 
today, all aspects of today's proposed rule were the subject of 
extensive public input in that context. Therefore, the public has 
already had several months to consider the substance of these proposed 
decisions.
    In this document, EPA is not proposing any time and place 
designations for the Columbia River. Oregon had not submitted and EPA 
had not disapproved water quality criteria for temperature or use 
designations for salmonid migration and rearing for the Columbia River. 
Therefore, the court did not require EPA to propose and promulgate such 
water quality standards for the Columbia River. Accordingly, EPA is not 
proposing time and place designations for salmonid spawning for the 
Columbia River. The court did hold that EPA's approval of the State's 
IGDO criterion to protect salmonid spawning was arbitrary and 
capricious based on record information showing that 6.0 mg/L would not 
adequately protect salmonid spawning and because Oregon had not made 
time and place use designations where the criterion would apply. Thus, 
the court order requires EPA to propose IGDO criteria wherever salmonid 
spawning is the designated use in Oregon. Therefore, the proposed IGDO 
criterion would apply to all waters identified in section 131.39(b) for 
salmonid spawning. In addition, for the Columbia River, the State of 
Oregon has identified the times and places where salmonid spawning 
occurs and, therefore, the IGDO criterion would apply to those places 
in the Columbia River (Letter to Randall Smith, EPA, from Michael 
Llewelyn, ODEQ, September 5, 2003).
    EPA is proposing these regulations under authority of CWA section 
303(c)(4)(A), which requires EPA to promptly prepare and publish 
proposed Federal water quality standards when EPA disapproves new or 
revised water quality standards submitted by a State. On September 29, 
2003, EPA disapproved the following new or revised water quality 
standards submitted by Oregon in 1996:
    [sbull] The water quality criteria for temperature for the 
protection of salmonid rearing;
    [sbull] The water quality criteria for temperature for the 
protection of bull trout spawning, rearing, and migration;
    [sbull] The water quality criteria for temperature for the 
protection of salmonid spawning; and
    [sbull] The water quality criterion for intergravel dissolved 
oxygen for the protection of salmonid spawning.
    A copy of the disapproval decision may be found in the docket for 
this proposed rule.
    In making its disapproval decision, EPA relied on the reasoning of 
the U.S. District Court for the District of Oregon when it ordered EPA 
to rescind its 1999 approval of certain Oregon temperature and IGDO 
standards. In its March 2003 order, the court stated that without 
accurate time and place use designations, Oregon's 1996 criteria for 
temperature and IGDO were inconsistent with the CWA and should not have 
been approved.
    Accordingly, EPA has disapproved these criteria to the extent that 
Oregon had failed to determine when and where these criteria apply 
(Letter from Randall F. Smith, Director of EPA Region 10's Office of 
Water, to Mike Llewelyn, Director of Oregon Department of Environmental 
Quality, September 29, 2003). Where Oregon has made time and place use 
determinations under its regulations (e.g., the Columbia River for 
salmonid spawning), EPA's 1999 approval decision remains in effect. 
Under those circumstances, the State's time and place use 
determinations apply for CWA purposes, and EPA is not proposing Federal 
time and place designations for those waters in this rulemaking.
    In developing this proposed rule, EPA sought advice from other 
Federal agencies, including those that administer the ESA and those 
that operate dams in Oregon. Their comments improved the clarity of the 
proposal, resulted in EPA deciding to solicit comment in some 
additional areas, aided EPA in developing standards that would be 
protective of endangered salmon and trout, and, prompted EPA to better 
articulate for owners and operators of Federal dams the information 
needs and process associated with petitioning for changes in use 
designations. EPA appreciates the input of these agencies.

III. What Federal Water Quality Standards Is EPA Proposing Today?

A. Background

    In this document, EPA is proposing (1) designated uses to protect 
migration, rearing, and spawning through fry emergence for salmonids; 
(2) specific water bodies where those designated uses would apply, and 
the times of year when the uses occur; (3) temperature criteria that 
protect each of those designated uses; (4) an IGDO criterion that 
protects salmonid spawning; and (5) an implementation plan for Oregon's 
existing antidegradation policy.
    The basis for EPA's proposed salmonid uses and associated 
temperature criteria is the Temperature Guidance, contained in the 
record for this rule. The Temperature Guidance is intended to assist 
States and authorized Tribes in adopting scientifically-defensible 
temperature water quality standards. The Temperature Guidance 
recommends an approach for adopting temperature water quality standards 
to protect cold-water salmonids and specifically addresses the 
following cold-water salmonid species in the Pacific Northwest: 
chinook, coho, sockeye, chum, and pink salmon; steelhead and coastal 
cutthroat trout; and bull trout. The Temperature Guidance provides 
recommendations to States and authorized Tribes on how they can 
designate uses and establish numeric temperature criteria for 
waterbodies that help meet the interim goal of the CWA to, where 
attainable, provide for water quality that ``provides for the 
protection and propagation of fish, shellfish, and wildlife and 
recreation in and on the water.'' See CWA section 101(a)(2). In 
addition, temperature water quality standards are viewed by EPA and the 
Services as an

[[Page 58763]]

important tool for the protection and recovery of threatened and 
endangered salmonid species in the Pacific Northwest. Attaining 
criteria and protecting existing cold temperatures for waters used by 
these salmonids will help maintain and improve their habitat and aid in 
their protection and recovery.
    As mentioned above, EPA Region 10 undertook the Temperature 
Guidance project as a result of the commitments agreed to under the ESA 
Biological Opinion issued by the Services on Oregon's temperature water 
quality standards. EPA Region 10 also undertook this project because 
EPA's CWA section 304(a) national criteria recommendations for 
temperature found in ``Quality Criteria for Water 1986,'' commonly 
known as the Gold Book, were established in 1977, and do not reflect 
the most current science regarding temperature in the Pacific 
Northwest. In general, the Gold Book temperature recommendations for 
salmonids and other fish consist of formulas to calculate the 
protective temperatures for short-term exposure and a maximum weekly 
average exposure based on the maximum weekly average temperature 
metric. Protective short-term temperature exposure is based on 
subtracting 2[deg]C/4[deg]F from the upper incipient lethal 
temperature. Protective weekly average temperature exposure is based on 
the optimal growth temperature plus one-third of the difference between 
the optimal growth temperature and the upper incipient lethal 
temperature. Using these formulas and EPA data for coho and sockeye 
salmon, the 1986 document calculates suggested temperature criteria for 
short-term exposure as 22[deg]C/71.6[deg]F (sockeye) and 24[deg]C/
75.2[deg]F (coho) and a maximum weekly average exposure of 18[deg]C/
64[deg]F for both species.
    Based on extensive review of the most recent scientific studies, 
many of which were undertaken specifically for the Pacific Northwest, 
EPA and the Services believe that there are a variety of chronic (long-
term) and sub-lethal effects (i.e., effects other than death) that are 
likely to occur to Pacific Northwest salmonid species exposed to the 
maximum weekly average temperatures calculated using the CWA section 
304(a) national recommended formulas. These chronic and sub-lethal 
effects include reduced juvenile growth, increased incidence of 
disease, reduced viability of gametes in adults prior to spawning, 
increased susceptibility to predation and competition, and suppressed 
or reversed smoltification. Healthy fish populations could possibly 
endure some of these chronic impacts with little appreciable loss in 
population size. However, EPA and the Services are concerned that these 
chronic and sub-lethal effects can reduce the overall health and size 
of vulnerable fish populations, such as the endangered or threatened 
salmonids of the Pacific Northwest. Based on the new scientific studies 
developed specifically for the Pacific Northwest and the fact that the 
fish populations at issue are already vulnerable for reasons unrelated 
to temperature, EPA believes that the general assumptions upon which 
the national recommendations are based are inapplicable here. In 
particular, EPA is concerned that vulnerable coldwater salmonids in the 
Pacific Northwest would not be adequately protected at water 
temperatures selected between the optimal growth temperatures and the 
higher temperatures at which there would be incipient lethality. For 
these reasons, EPA is basing today's proposed rule on the more recent, 
site-specific information and analyses contained in the 2003 
Temperature Guidance, rather than on the 1986 CWA section 304(a) 
national temperature criteria recommendations.

B. Federal Use Designations for Specific Water Body Segments

1. Background
    Today, EPA is proposing to designate the same salmonid uses 
recommended in the Temperature Guidance with a few exceptions discussed 
in the preceeding paragraphs. Four of the five designated salmonid uses 
that EPA is proposing are based on the salmonid uses that occur during 
the period of summer maximum temperatures, which is generally during 
July and August. EPA believes it is appropriate to primarily base 
designated salmonid uses on summer salmonid use because: (1) human 
activities that increase summer water temperatures are a significant 
concern for salmonids in the Pacific Northwest, and (2) ensuring water 
temperatures are protective of salmonid uses during the summer will 
generally result in protective water temperatures for salmonids other 
times of the year due to the fact that waters will naturally be cooler 
during other months of the year. However, for some waters, attaining 
the criteria to protect for a summertime salmonid use may not result in 
protecting salmonid spawning and fry emergence that occurs in the 
spring to early summer or late summer to fall. Thus, in addition to the 
four summer salmonid designated uses, EPA is also proposing a use 
designation specifically for salmon and steelhead spawning through fry 
emergence, which typically occurs beginning in the fall and continuing 
through the spring, but can also occur in early July for steelhead and 
late August for chinook. Designating this use and associated water 
quality criteria provides an added degree of protection where meeting 
only the summer maximum temperature may be inadequate to ensure 
protection of this use during the other times of the year when spawning 
occurs.
    In this document, EPA is proposing salmonid uses and associated 
temperature and IGDO water quality criteria for the waters identified. 
Water quality criteria often protect water bodies that have multiple 
and competing uses. Federally-owned or operated dams in certain waters 
may present a particular challenge in designating uses and establishing 
water quality criteria. In cases such as this, water quality standards 
should take into consideration the authorized purposes of Federally-
owned or operated dams. EPA, therefore, will take into consideration 
the operational parameters and authorized purposes at these facilities 
when developing Federal water quality standards for the State of 
Oregon, to the extent time and availability of data permit. If data 
become available prior to promulgation of the final rule demonstrating 
that a proposed use is not attainable on a particular water body 
impacted by a Federally-owned or operated dam, EPA may promulgate a 
revised use that reflects the highest feasibly attainable use 
consistent with the operation of the dam. Designated uses should be 
deemed ``feasible'' if they can be implemented by a dam in a manner 
that allows the dam to perform its authorized purposes. Because these 
standards are being developed on an expedited schedule, and it may not 
be possible to fully consider data on attainability of uses for all 
water bodies potentially impacted by Federally-owned or operated dams, 
EPA is also proposing a process by which Federal agencies responsible 
for Federally-owned or operated dams may request that EPA modify the 
water quality standards described in this proposed rule. See section 
V.B.
    For each of the uses proposed in section III.B.2, EPA requests 
comment on its methodology for designating waters for those uses, and 
on the specific use designations for waters identified on the maps 
available on the Internet at http://www.epa.gov/r10earth/federaloregonwqs.htm, or in hard copy at U.S. EPA Region 10's Oregon 
Operations Office, 811 SW. 6th Avenue, 3rd Floor, Portland, Oregon 
97204.

[[Page 58764]]

2. Salmonid Use Descriptions
    i. Bull Trout Juvenile Rearing and Spawning. EPA is proposing a 
bull trout juvenile rearing and spawning use for the waters identified 
in the maps previously referenced. This use is intended to protect 
moderate to high-density summertime bull trout juvenile rearing near 
their natal streams in their first years of life prior to making 
downstream migrations, and bull trout spawning through fry emergence 
typically occurring from the fall through the spring in the same 
waters. In general, EPA is proposing this use in the upper reaches of 
the applicable river basins, where this use typically occurs.
    ii. Salmon and Steelhead Core Juvenile Rearing. EPA is proposing a 
salmon and steelhead core (moderate- to high-density) juvenile rearing 
use for the waters identified in the maps previously referenced. This 
use is intended to protect core salmon and steelhead juvenile rearing 
that occurs in the summer. This use is generally found in a river 
basin's mid-to-upper reaches, downstream from juvenile bull trout 
rearing areas. Protection of these waters for salmon and steelhead 
juvenile rearing also provides protection for adult spring chinook 
salmon that ``hold'' (wait in a river reach) throughout the summer 
prior to spawning, and for migrating and foraging adult and sub-adult 
bull trout, which also frequently use these waters.
    iii. Salmon and Trout Juvenile Rearing and Migration. EPA is 
proposing a salmon and trout juvenile rearing and migration use for the 
waters identified in the maps previously referenced. This use is 
intended to protect salmon and steelhead (trout) moderate- to low-
density juvenile rearing and migration, during the period of summer 
maximum temperatures. During the rest of the summer and other months of 
the year, salmon and steelhead juvenile rearing and migration is likely 
to be of higher density. This use designation reflects the fact that 
salmon and steelhead juveniles will use waters during the summer that 
have higher temperatures than their optimal thermal range. Salmon and 
trout juvenile rearing and migration is generally found in the middle 
and lower part of a basin, downstream of the salmon and steelhead core 
rearing use. In many river basins in Oregon, this use extends all the 
way to a river basin's terminus (i.e., confluence with the Columbia 
River, Snake River or Pacific Ocean). EPA is also proposing salmon and 
trout juvenile rearing and migration use to protect for general 
juvenile rearing for resident rainbow trout.
    iv. Salmon and Steelhead Migration. EPA is proposing a salmon and 
steelhead migration use for the lower Willamette River (50 miles 
upstream from the confluence with the Columbia River), the John Day 
River (from the confluence with the North Fork River downstream to the 
confluence with the Columbia River), and the portion of the Snake River 
in Oregon (from the Washington-Oregon border to Hells Canyon Dam).
    Salmon and steelhead migration occurs all year, but primarily in 
the spring and early summer or in the late summer and fall. Although 
fewer fish migrate during the summer maximum time period, migration is 
the most prevalent life stage use that occurs during that period in 
these waters. Some isolated salmon and steelhead juvenile rearing may 
occur in these waters during the period of summer maximum temperatures, 
but when it does, such rearing is usually found only in the confluence 
of colder tributaries or other areas of colder waters.
    The summer maximum temperature criterion is designed to protect 
migration both during that time period and, more importantly, during 
other times of the year when the majority of migration occurs. This is 
because the criterion assures that the water temperatures stay cool 
enough in the summer that the natural seasonal cooling that occurs 
during other times of year results in achievement of temperatures that 
are protective of migration.
    v. Salmon and Steelhead Spawning Through Fry Emergence. EPA is 
proposing to designate a spawning through fry emergence use for the 
protection of salmon and steelhead trout spawning, egg incubation, and 
fry emergence in the times and places indicated on the maps previously 
mentioned. Generally, these life stages occur: (a) From late winter 
through early summer for steelhead trout (mid-upper reaches); (b) from 
the late summer-fall through spring for spring chinook (mid-upper 
reaches); and (c) from the fall through spring for coho (mid-reaches), 
chum, and fall chinook (the latter two in lower reaches).
    vi. Other Salmonid Uses Considered. EPA considered designating 
separate salmonid uses for (a) bull trout spawning and (b) steelhead 
smoltification. For purposes of this proposed rule, however, EPA 
determined that these uses can be protected by the temperature criteria 
associated with other salmonid uses EPA is proposing today. See 
Temperature Guidance p. 31. For bull trout spawning, EPA believes that 
its proposed ``bull trout rearing and spawning'' use category will be 
protective, and for steelhead smoltification, EPA believes that its 
proposed use category, ``salmon and steelhead spawning through fry 
emergence'' will be protective.
    Bull trout generally spawn in the late summer and fall in the same 
waters where young and resident juvenile bull trout rear. EPA decided 
that a combined bull trout spawning and rearing use with a single 
numeric temperature criterion (12[deg]C/54[deg]F) that limits summer 
maximum temperatures would protect both the rearing that occurs year-
round and the spawning, egg incubation, and fry emergence that 
generally occurs fall through spring. EPA proposes this approach for 
two reasons. First, data indicate that if the summer maximum 
temperature is 12[deg]C/54[deg]F, temperatures will naturally decrease 
to levels that are protective of bull trout spawning (9[deg]C/48[deg]F) 
when it occurs in the late summer and fall, and further decrease to 
protect egg incubation (2-6[deg]C/36-43[deg]F) when it occurs over the 
winter. Second, there may be some areas where bull trout spawn in the 
summer, but in those situations, the existing summer maximum 
temperatures are likely to be colder than 12[deg]C/54[deg]F and in 
those situations the existing cold water alternative criterion 
discussed in section III.C.vi.b. would apply and the applicable 
criterion would be the existing maximum temperatures.
    Salmon and steelhead smoltification occurs in the spring as these 
fish migrate to the ocean and go through the adaptation process for 
saltwater. Steelhead are believed to be the most temperature-sensitive 
salmonids during smoltification, which is why a separate designated use 
and criterion of 14[deg]C/57[deg]F was recommended in the Temperature 
Guidance. EPA believes that its proposed water quality criteria for 
temperature and associated designated uses would effectively protect 
steelhead smoltification. In particular, the proposed salmon and 
steelhead spawning through fry emergence use designation includes a 
13[deg]C/55[deg]F criterion that would apply from the fall through the 
spring until either May 15th or June 15th in nearly all the waters 
where steelhead smoltification occurs.
3. Specific Locations and Times for the Salmonid Uses
    EPA, in coordination with the Oregon Department of Environmental 
Quality (ODEQ) and the Services, established an interagency team to 
designate where and when the salmonid uses described above apply for 
waters in the State of

[[Page 58765]]

Oregon. These proposed salmonid use designations are shown in the 
previously mentioned maps (available on the Internet at http://www.epa.gov/r10earth/federaloregonwqs.htm or in hard copy at U.S. EPA 
Region 10's Oregon Operations Office, 811 SW., 6th Avenue, 3rd Floor, 
Portland, Oregon 97204). The salmon and steelhead spawning through fry 
emergence use is designated only for the time period indicated in the 
map legends; all other identified designated uses apply throughout the 
year.
    EPA is proposing multiple use designations for certain waters where 
the criterion applicable to the most sensitive use also protects a less 
sensitive use. Where EPA proposes to designate bull trout rearing and 
spawning, EPA is also proposing to designate salmon and steelhead core 
juvenile rearing. Where EPA is proposing salmon and steelhead core 
juvenile rearing, EPA is also proposing to designate salmon and trout 
juvenile rearing and migration. Where EPA proposes salmon and trout 
juvenile rearing and migration, EPA also proposes salmon and steelhead 
migration. EPA notes that the maps indicate only the most sensitive use 
that occurs during the period of maximum summer temperatures. Also, EPA 
notes that its approach of defining uses that occur during the period 
of summer maximum temperatures will also have the effect of protecting 
other uses. If the most sensitive use designated for a particular water 
body or segment no longer applies, then the less sensitive use would 
apply.
    In proposing the designated uses for the specified water bodies the 
team primarily relied on a database developed by Oregon Department of 
Fish and Wildlife (ODFW), which is available in the record and on the 
Internet. (ODFW Database,  http://osu.orst.edu/dept/nrimp/information/fishdistdata.htm). This database was the product of an ODFW multi-year 
effort to develop consistent and comprehensive fish distribution data 
for a number of salmonid species. These distribution data represent the 
known or probable presence of all salmonid species within the 
anadromous zones of Oregon. ODFW compiled fish distribution information 
from a variety of sources including State and Federal fishery agencies, 
tribal entities, watershed councils and other interested public or 
private groups.
    The ODFW fish distribution data depict the known or probable 
presence for the different life stages (i.e., spawning through fry 
emergence, rearing, and migration) of the above listed salmonid 
species. The ODFW fish distribution data reflect both waters with known 
fish life stage presence based on documented observations, as well as 
local field biologists' best professional judgment as to where a life 
stage use is likely to occur based on suitable habitat (i.e., waters 
near areas of documented life stage presence on the same waterbody that 
have similar temperatures and geomorphological habitat features, such 
as flow volume, gradient, gravel size, pool frequency, and no known 
obstructions or reasons why uses would not also be present in these 
waters). The ODFW fish distribution data reflect areas of fish use 
based on information collected over the past five life cycles for a 
particular species, which ranges from 15 to 35 years.
    In addition to spatial fish distribution data that describe where a 
life stage use is known or likely to occur, the ODFW database also 
includes information describing when a life stage use is known or 
likely to occur.
    EPA believes the methodology ODFW used to develop its database, as 
summarized above, is scientifically sound and is appropriate to use for 
salmonid use designations. (1:24K Fish Habitat Distribution Development 
Project Procedures Manual, Oregon Department of Fish and Wildlife, 
February 26, 2002). In particular, the ODFW database is based on fish 
presence information spanning multiple years and includes waters where 
fish are likely to occur based on locations near areas with documented 
life stage presence and suitable habitat. This approach is appropriate 
because salmonid use designations based solely on areas of documented 
presence does not sufficiently describe the actual waters of use due to 
the practical limitations of monitoring every stream mile, and routine 
fish monitoring sometimes indicates no fish presence when fish are 
actually present (i.e., false negatives). Further, fish distributions 
vary year to year for any given waterbody, so salmonid use designations 
should be based on fish presence studies over multiple years. EPA 
requests comment on its use of the ODFW database as its primary source 
of fish distribution data.
    EPA also relied upon three other sources of information to identify 
the proposed salmonid designated uses: ODEQ's Bull Trout Habitat 
Designation Report: Technical Work Group Recommendations (July 2003); 
USFWS proposed critical habitat for bull trout spawning and juvenile 
rearing (67 FR 71236, November 29, 2002); and Ecotrust's Salmon Anchor 
Habitat Strategy for the Tillamook and Clatsop State Forests, October 
2002 (http://www.inforain.org/mapsatwork/anchorhabitats/).
    As noted above, EPA, the State of Oregon, and the Services 
developed an agreed-upon methodology to define where and when the 
different proposed salmonid uses would apply based on the ODFW database 
and the other information described above. The following is a summary 
of the approach used to identify each of the proposed salmonid 
designated uses.
    i. Bull Trout Juvenile Rearing and Spawning. EPA reviewed three 
different information sources that identify bull trout spawning and 
juvenile rearing habitat in Oregon: (1) ODEQ's Bull Trout Habitat 
Designation Report: Technical Work Group Recommendations, (2) ODFW 
database for bull trout juvenile rearing and spawning habitat, and (3) 
FWS' proposed critical habitat for bull trout juvenile rearing and 
spawning. These three data sources are consistent in defining areas of 
known or probable bull trout juvenile rearing and spawning. The ODEQ 
report and the FWS proposal referenced previously also identify habitat 
areas that have the potential to support bull trout juvenile rearing 
and spawning and are essential to the conservation of the bull trout 
species. EPA believes it is appropriate to designate areas identified 
as potential bull trout rearing and spawning habitat because in order 
to protect the bull trout use in the State, there must be a critical 
population to (1) provide a compensatory reserve to protect against 
natural stresses and events (e.g., drought); and (2) protect against 
``depensation'' [a population level that is so low that it experiences 
decreases in recruitment and which has led to documented crashes in 
certain fish populations (Rieman and McIntyre, 1993)]; and (3) ensure 
that genetic diversity is sufficient to support healthy reproduction. 
EPA requests comment on its proposal to designate areas of potential as 
well as known or probable bull trout juvenile rearing and spawning use. 
ODEQ's report was translated into a Geologic Information System (GIS) 
database by ODEQ; EPA primarily used this information supplemented by 
FWS's proposed critical habitat information to identify where this 
designated use is proposed.
    EPA proposes to designate a bull trout rearing and spawning use 
for: (a) Waters classified in ODEQ's report as known bull trout 
spawning and juvenile rearing habitat (BTHD1) and potential bull trout 
spawning and juvenile rearing habitat necessary for long-term health 
and viability of bull trout populations

[[Page 58766]]

(BTHD3), (b) any additional waters identified by FWS as bull trout 
spawning and rearing proposed critical habitat, and (c) all waters 
upstream of the areas (as indicated on the use designation maps) 
identified in (a) and (b) except for a few relatively large tributaries 
where EPA has data showing this use does not occur, or the water body 
has not been identified as habitat needed to protect the designated use 
of bull trout. EPA requests comment on its methodology for designating 
waters for the bull trout juvenile rearing and spawning use and on the 
specific waters identified.
    ii. Salmon and Steelhead Core Juvenile Rearing. In developing this 
proposal, EPA judged that the ODFW database could not be used to 
differentiate core (high-density) juvenile rearing from non-core (low-
density) juvenile rearing. In addition, there is generally very little 
available information on juvenile rearing density for Oregon's river 
basins. Therefore, as recommended in the Temperature Guidance, EPA 
elected to use surrogate information to help identify areas where 
summertime core salmon and steelhead juvenile rearing is likely. Waters 
used by spring chinook to spawn in the late summer months (August 
through mid-September), waters used over the summer by migrating and 
foraging adult bull trout, and waters upstream of these areas are 
likely to also support and be used for core salmon and steelhead 
juvenile rearing for two reasons. First, ODFW's database indicates 
juvenile rearing occurs in these waters, and second, the temperatures 
needed for core rearing are similar to those that occur in waters that 
support adult spring chinook holding to spawn as well as those that 
support migrating and foraging adult bull trout. See EPA Temperature 
Guidance.
    The Ecotrust study on anchor habitat in the North Coast Basin was 
one juvenile rearing density study EPA relied upon to identify waters 
where the salmon and steelhead core juvenile rearing designated use 
should be proposed. This study identified areas of core juvenile 
rearing habitat for coho (salmon), steelhead (trout), and chinook 
(salmon). Use of this information resulted in EPA proposing that three 
stream segments be designated for salmon and steelhead core juvenile 
rearing in the North Coast Basin (Necanicum River, Ecola Creek and 
Plympton Creek) where there is no spring chinook spawning. Most of the 
waters identified in this study were also waters where the ODFW 
database showed spring chinook spawning to occur in or upstream of 
these areas.
    In summary, EPA is proposing to designate a salmon and steelhead 
core juvenile rearing use for: (a) Waters where ODFW distribution and 
timing information shows chinook spawning occurs on or prior to 
September 15; (b) waters where known or probable adult bull trout 
migration and foraging occurs in July or August based on the ODFW 
database; (c) waters where scientifically credible information 
(specifically the Ecotrust study) shows core salmon or steelhead 
rearing (such information was only available for the North Coast 
Basin); and (d) all waters upstream of the waters identified in (a), 
(b), or (c), except for a few relatively large rivers where the 
information in (a), (b) and (c) showed that these life stages are not 
occurring in the river and the designation is not necessary to ensure 
delivery of cold water downstream.
    EPA requests additional scientifically-credible data or information 
regarding core juvenile rearing areas that it could use to identify 
those waters where this use should be designated. In particular, EPA 
seeks information on coho and steelhead juvenile rearing density and 
timing. EPA would consider such data or information in EPA's final use 
designations.
    Other data and information that may be appropriate for commenters 
to review and evaluate EPA's designated uses include: (1) Waters 
identified by ODFW as juvenile rearing habitat where ODEQ monitoring 
data from any year shows that maximum water temperatures are at or 
below 16[deg]C/61[deg]F (the proposed numeric criterion for this use); 
(2) waters identified by ODFW as juvenile rearing habitat where ODEQ 
temperature modeling indicates maximum water temperatures can meet 
16[deg]C/61[deg]F; (3) information from NOAA Fisheries describing 
critical sub-populations; (4) ODFW information on high density spawning 
areas; and (5) waters above a certain elevation that are identified by 
ODFW as steelhead and/or coho juvenile rearing with no chinook rearing. 
Use of this data could potentially increase the number of waters for 
which EPA promulgates the salmon and steelhead core juvenile rearing 
designated use.
    Although EPA is soliciting additional data or information that may 
be helpful in designating this use, EPA believes the water bodies EPA 
is proposing to designate for salmon and steelhead core juvenile 
rearing provide sufficient spatial coverage to protect this use. As can 
be seen by viewing the use designation maps, EPA is proposing to 
designate salmon and steelhead core juvenile rearing for significant 
portions of each basin. EPA, after discussions with NOAA Fisheries, 
believes it is important for each existing salmon and steelhead 
population to have a portion of their rearing habitat designated for 
this use. EPA believes it has achieved this by designating this use for 
a portion of most of the sub-basins in each of Oregon's basins used by 
salmon and steelhead.
    It is also important to recognize that waters EPA is proposing to 
designate as salmon and trout juvenile rearing and migration use (See 
section III.B.2.iii) with an associated 18[deg]C/64[deg]F criterion, 
will provide a significant amount of water with 16[deg]C/61[deg]F 
maximum temperatures that support salmon and steelhead core juvenile 
rearing because attaining 18[deg]C/64[deg]F in the lower elevation 
waters will require that a significant portion of the upstream waters 
be colder than 18[deg]C/64[deg]F. Thus, EPA believes that the salmon 
and trout juvenile rearing and migration summer maximum criterion will, 
in effect, protect additional upstream waters for salmon and steelhead 
core juvenile rearing. EPA requests comment on its methodology for 
identifying waters for the salmon and steelhead core juvenile rearing 
use and on the specific waters identified.
    iii. Salmon and Trout Juvenile Rearing and Migration. EPA proposes 
to designate a salmon and trout juvenile rearing and migration use for: 
(a) Waters where ODFW distribution and timing information shows 
chinook, chum, coho or steelhead rearing occurring in July or August; 
(b) waters where ODFW distribution information shows rainbow trout 
rearing use; and (c) all waters upstream of the waters identified 
above. The data and information supporting these determinations is 
contained in the ODFW database.
    iv. Salmon and Steelhead Migration. EPA proposes to designate a 
salmon and trout migration use for waters where ODFW distribution and 
timing information indicates there is no rearing use in July or August 
or information suggests a lower mainstem river is primarily a migration 
corridor during the period of summer maximum temperatures, and there is 
evidence that temperatures naturally reach or exceed 20[deg]C/68[deg]F. 
Specifically, EPA is proposing a salmon and steelhead migration use for 
the lower Willamette River (50 miles upstream from the confluence with 
the Columbia River), the John Day River (from the confluence with the 
North Fork River downstream to the confluence with the Columbia River), 
and the portion of the Snake River in Oregon (from the Washington-
Oregon border to Hells Canyon Dam). The data and information supporting

[[Page 58767]]

these determinations is contained in the ODFW database.
    v. Salmon and Steelhead Spawning Through Fry Emergence. EPA 
considered identifying specific locations and all the distinct time 
periods where the ODFW database shows salmon or steelhead spawning, egg 
incubation or fry emergence to occur, but doing so even for one basin 
resulted in over 30 different time periods for this use designation. 
Because such an approach would be very complicated and difficult to 
implement, EPA instead reviewed all of the data and developed an 
approach that protects this use with fewer different time frames in a 
basin.
    After reviewing the timing information for spawning through fry 
emergence for all salmon species and steelhead, EPA determined that 
designating this use from October 15 through May 15 where it occurs 
would protect this use for all waters in the State except for those 
waters where the salmon and steelhead core juvenile rearing is the 
designated use. In those waters, chinook (salmon) spawning may occur 
prior to October 15 and steelhead fry emergence may occur later than 
May 15. To account for chinook spawning in these waters prior to 
October 15, EPA decided to designate this use as occurring either two 
weeks after the start of non-peak chinook spawning or at the time of 
peak chinook spawning, whichever date is earliest. The rationale for 
designating this use two weeks after the start of chinook spawning is 
that the use designation is for the whole river segment where chinook 
spawning occurs but the early spawning generally occurs in the higher 
elevation part of the river segment. EPA believes it is reasonable to 
apply the criterion two weeks after the start of spawning upstream 
because the criterion applies throughout the water body, including the 
downstream extent of the use where spawning typically occurs later.
    To account for steelhead fry emergence after May 15 in waters where 
salmon and steelhead core juvenile rearing is the designated use, EPA 
decided that designating the salmon and steelhead spawning through fry 
emergence use where it occurs in these waters through June 15 would be 
protective. Although steelhead fry emerge later than June 15 in some 
waters, those waters are typically the upstream (i.e., high elevation) 
portion of where this use is designated. Thus, in order to attain the 
criterion for this use (i.e., 13[deg]C/55[deg]F) on June 15 in the 
downstream extent of waters where this use would be designated, 
temperatures would need to be colder on June 15 in the upstream waters 
and therefore would not likely reach 13[deg]C/55[deg]F until later in 
the year.
    Lastly, because the timing information is well known for salmonid 
spawning in the lower mainstem rivers and the temperature variation 
within these segments is small, EPA decided to also propose a salmon 
and steelhead spawning through fry emergence use where and when 
spawning and fry emergence occur (based on the ODFW database) in waters 
where salmon and steelhead migration is the designated use. Of the 
three rivers for which EPA is proposing the migration use, the Snake 
River is the only one where spawning and fry emergence also occurs. As 
a result, it was unnecessary for EPA to develop a generalized 
methodology to protect the spawning use for this waterbody.
    In summary, EPA proposes to designate the times and places for 
salmon and steelhead spawning through fry emergence use as follows:
    (1) For waters where EPA is proposing to designate salmon and trout 
juvenile rearing and migration (i.e., the 18[deg]C/64[deg]F summer 
maximum criterion applies) and where ODFW distribution information 
shows salmon (chinook, coho, chum) or steelhead spawning occurs, EPA is 
also proposing to designate the salmon and steelhead spawning through 
fry emergence use from October 15 through May 15.
    (2) For waters where salmon and steelhead core juvenile rearing is 
the proposed designated use (i.e., the 16[deg]C/61[deg]F summer maximum 
criterion applies), EPA also proposes to designate the salmon and 
steelhead spawning through fry emergence use for the following waters 
and associated timeframes:
    (a) For waters where ODFW distribution information shows chinook 
spawning and steelhead spawning occurs, beginning the earliest of (i) 2 
weeks after the beginning of chinook spawning, or (ii) the start of 
peak chinook spawning, or (iii) October 15; and ending June 15;
    (b) For waters where ODFW distribution information shows chinook 
spawning occurs (and no steelhead spawning occurs), beginning the 
earliest of (i) 2 weeks after the beginning of chinook spawning, or 
(ii) the start of peak chinook spawning, or (iii) October 15; and 
ending May 15;
    (c) For waters where ODFW distribution information shows steelhead 
spawning occurs (and no chinook spawning occurs), from October 15 to 
June 15; and
    (d) from October 15 to May 15 for any waters where other salmon 
spawning (e.g., coho or chum) occurs.
    (3) For waters where EPA is proposing to designate a salmon and 
steelhead migration use (i.e., 20[deg]C/68[deg]F criterion applies) and 
where ODFW distribution information indicates salmon or steelhead 
spawning occurs, EPA is also proposing to designate the salmon and 
steelhead spawning through fry emergence use from the beginning of 
spawning to the end of fry emergence, as indicated on the maps at 
http://www.epa.gov/r10earth/federaloregonwqs.htm.

C. Temperature Criteria for Salmonid Uses

1. Background
    Each salmonid life stage has an optimal temperature range. 
Physiological optimum temperatures are those where physiological 
functions (e.g., growth, swimming, heart performance) are optimized. 
These temperatures are generally determined in laboratory experiments. 
Ecological optimum temperatures are those where fish do best in the 
natural environment considering food availability, competition, 
predation, and fluctuating temperatures. All are important 
considerations when establishing numeric temperature criteria. Exposure 
to temperatures above the optimal range results in an increased 
severity of harmful effects, often referred to as sub-lethal or chronic 
effects (e.g., decreased juvenile growth which results in smaller, more 
vulnerable fish; increased susceptibility to disease which can lead to 
mortality; and decreased ability to compete and avoid predation), as 
temperatures rise until at some point they become lethal. See 
Temperature Guidance, pp.18-19.
    Water temperatures significantly affect the distribution, health, 
and survival of native salmonids in the Pacific Northwest. Since 
salmonids are ectothermic (cold-blooded), their survival is dependent 
on external water temperatures, and they will experience adverse health 
effects when exposed to temperatures outside their optimal range. 
Salmonids have evolved and thrived under the water temperature patterns 
that historically existed (i.e., prior to significant anthropogenic 
impacts that altered temperature patterns) in Pacific Northwest streams 
and rivers. Although evidence suggests that historical water 
temperatures exceeded optimal conditions for salmonids at times during 
the summer months on some rivers, the temperature diversity in these 
unaltered rivers provided enough cold water during the summer to allow 
salmonid populations as a whole to thrive.

[[Page 58768]]

    Pacific salmon populations have historically fluctuated 
dramatically due to climatic conditions, ocean conditions, and other 
disturbances. High water temperatures during drought conditions likely 
affected the historical abundance of salmon. In general, the increased 
exposure to stressful water temperatures and the reduction of suitable 
habitat caused by drought conditions reduce the abundance of salmon. 
Human-caused elevated water temperatures significantly increase the 
magnitude, duration, and extent of thermal conditions unsuitable for 
salmonids.
    The freshwater life histories of salmonids are closely tied to 
water temperatures. Cooling rivers in the autumn serve as a signal for 
upstream migrations. Fall spawning is initiated when water temperatures 
decrease to suitable temperatures. Eggs generally incubate over the 
winter or in early spring when temperatures are coolest. Rising 
springtime water temperatures may serve as a cue for downstream 
migration. Temperature can also influence the life histories of 
salmonid prey and allow a competitive advantage for non-native species 
such as pikeminnow.
    Because of the overall importance of water temperature for 
salmonids in the Pacific Northwest, human-caused changes to natural 
temperature patterns have the potential to significantly reduce the 
size of salmonid populations. Of particular concern are human 
activities that have led to the excess warming of rivers and the loss 
of temperature diversity.
    Different salmonid species have evolved to take advantage of the 
Pacific Northwest's cold-water environment in different ways. Each 
species has a unique pattern of when and where they use the rivers, and 
even for a specific species this pattern of use may change from year to 
year. This diversity in freshwater life history is a critical 
evolutionary trait that has allowed salmonids to persist in a 
freshwater environment that naturally fluctuates and has natural 
disturbances.
    Therefore, EPA's proposed water quality standards for temperature 
include protective criteria that account for the natural thermal 
diversity of streams and rivers. In proposing temperature criteria for 
salmonids uses, EPA recognizes that (1) Salmonids need specific water 
temperature ranges for their various life stages; (2) the natural 
thermal temperature regime of the rivers and streams of the Pacific 
Northwest were naturally thermally diverse, varying spatially and 
temporally; and (3) salmonids evolved specific life history strategies 
to find and thrive in the cold water provided by these thermally 
diverse river systems. EPA believes that water quality standards for 
temperature should take this natural thermal diversity into account in 
addition to setting the appropriate temperature thresholds necessary to 
protect the various life stages of salmonids. The water quality 
criteria EPA is proposing today address both of these concepts in the 
form of generally applicable numeric criteria corresponding to specific 
use designations, and two alternative criteria that, if promulgated, 
would apply instead of the numeric criteria on a site-specific basis. 
The first proposed alternative criterion addresses naturally warm 
conditions: when the natural thermal condition of the stream is 
naturally warmer than the otherwise applicable numeric temperature 
criterion, the natural temperature becomes the criterion. The second 
proposed alternative criterion concerns waters that are currently cold: 
if the current summer maximum stream temperature is colder than the 
otherwise applicable numeric criterion, the current summer maximum 
temperature becomes the criterion.
2. EPA's Basis for the Proposed Numeric Criteria
    Water quality criteria must protect the associated designated 
use(s). See CWA section 303(c)(2)(A), 33 U.S.C. 1313(c)(2)(A), and 40 
CFR 131.5(a)(2), 131.6(c) and 131.11(a)(1). Therefore, a criterion 
should apply to the whole extent of a water body or segment for which a 
particular use is designated, including, in the case of flowing water 
bodies, the lowest point downstream where the use is designated. 
Because streams generally warm progressively in the downstream 
direction, waters upstream of that point will generally need to be 
cooler in order to ensure that the criterion is met throughout the 
segment, including the furthest point downstream. Thus, a water body 
that meets a temperature criterion at the furthest downstream extent of 
the water body segment where the use is designated will, in many cases, 
provide water cooler than the criterion at the upstream extent of the 
segment. EPA took this into consideration when it formulated the 
proposed numeric temperature criteria contained in today's proposed 
rule.
    EPA regulations also require that water quality standards provide 
for the attainment and maintenance of downstream uses. 40 CFR 
131.10(b). Thus, the designated use and associated numeric criteria 
should apply upstream of the areas of actual use because temperatures 
in upstream waters significantly affect the water temperatures where 
the actual use occurs and upstream waters are usually colder. Of 
course, if a more sensitive use is designated upstream, the more 
protective criterion associated with that use would apply upstream. See 
40 CFR 131.11(a).
    The numeric temperature criteria EPA is proposing to protect the 
salmonid designated uses are the same criteria recommended in the 
Temperature Guidance. The Guidance included two tables summarizing the 
temperature considerations for each life stage of Pacific salmon and 
trout and bull trout that are described in detail in the technical 
issue papers that are the basis for the Temperature Guidance. See the 
record for this proposed rule to view the issue papers. These 
temperature considerations, summarized in Tables III-1 and III-2 at the 
end of this section, form the scientific basis for EPA's proposed 
numeric temperature criteria.
    EPA requests comment on the proposed temperature criteria and 
methodology and scientific judgments that led to the recommendations in 
the Temperature Guidance and the criteria in this proposed rule. 
Specifically, EPA requests comment on the level of conservatism 
associated with proposing numeric criteria, considering the temperature 
ranges identified by studies that were evaluated in the Temperature 
Guidance. The level of conservatism should be considered along with the 
conservative approach of applying the criteria as the 7DADM of the 
second warmest year of ten years at the downstream end of the affected 
segment; see discussion below).
    The metric EPA is proposing for all the numeric criteria is the 
maximum seven-day average of the daily maximum temperatures (7DADM). A 
7DADM value is calculated by adding the daily maximum temperatures 
recorded at a site on seven consecutive days and dividing by seven. The 
maximum 7DADM is the highest recorded 7DADM for the year (i.e., the 
warmest week).
    The 7DADM is similar to the maximum weekly average temperature 
metric used previously by EPA for its national temperature criteria 
recommendations. However, EPA proposes to use the 7DADM metric because 
it describes the maximum temperatures in a stream, but is not overly 
influenced by the maximum temperature of a single day. Thus, it 
reflects an average of maximum temperatures that fish are exposed to 
over a week-long period. Since this

[[Page 58769]]

metric is oriented to daily maximum temperatures, it can be used to 
protect against acute effects, such as lethality and migration blockage 
conditions.
    This metric can also be used to protect against sub-lethal or 
chronic effects (e.g., temperature effects on growth, disease, 
smoltification, and competition), but the resultant cumulative thermal 
exposure fish experience over the course of a week or more needs to be 
considered when selecting a 7DADM value to protect against these 
effects. EPA's general conclusion from studies on fluctuating 
temperature regimes (which is what fish generally experience in rivers) 
is that fluctuating temperatures increase juvenile growth rates when 
mean temperatures are colder than the optimal growth temperature 
derived from constant temperature studies, but will reduce growth when 
the mean temperature exceeds the optimal growth temperature. See 
``Issue Paper 5: Summary of Technical Literature Examining the 
Physiological Effects of Temperature on Salmonids,'' prepared as part 
of the EPA Region 10 Temperature Water Quality Criteria Guidance 
Development Project. EPA-910-D-01-005, May 2001, pp. 51-56. When the 
mean temperature is above the optimal growth temperature, the ``mid-
point'' temperature between the mean and the maximum is the 
``equivalent'' constant temperature. This ``equivalent'' constant 
temperature then can be directly compared to laboratory studies done at 
constant temperatures. For example, a river with a 7DADM value of 
18[deg]C/64[deg]F and a 15[deg]C/58[deg]F weekly mean temperature will 
be roughly equivalent to a constant laboratory study temperature of 
16.5[deg]C/61.7[deg]F (mid-point between 15[deg]C/58[deg]F and 
18[deg]C/65[deg]F). Thus, both maximum and mean temperatures are 
important when determining a 7DADM value that is protective against 
sub-lethal/chronic temperature effects. See the Temperature Guidance, 
pp.19-20.
    As discussed in the Temperature Guidance, many rivers and streams 
occupied by salmon and steelhead in the Pacific Northwest have a 
3[deg]C/5[deg]F difference between the 7DADM and the weekly mean 
temperature. So, for many streams occupied by salmon and steelhead, a 
protective 7DADM temperature is approximately 1.5[deg]C/2.7[deg]F 
higher than a protective constant temperature derived from laboratory 
studies. Id. For bull trout streams, where the difference between the 
7DADM and the weekly mean is smaller because there is less diurnal 
variation, a protective 7DADM temperature is approximately 0.5[deg]C/
0.9[deg]F higher than a protective constant temperature derived from 
laboratory studies. Id.
3. Numeric Temperature Water Quality Criteria for EPA's Salmonid Use 
Designations
    i. Temperature Criteria for Waters Designated for Bull Trout 
Juvenile Rearing and Spawning. EPA proposes a 12[deg]C/54[deg]F maximum 
7DADM numeric criterion (which roughly translates to an equivalent 
constant temperature of 11.5[deg]C/52.7[deg]F) for waters designated 
for a bull trout juvenile rearing and spawning use to: (1) Protect 
juvenile bull trout from lethal temperatures (22-23[deg]C/72-73[deg]F 
constant); (2) provide conditions during the period of summer maximum 
temperature at the upper end of the optimal temperature range when food 
is limited for juvenile growth (8-12[deg]C/46-54[deg]F constant), thus 
providing optimal temperatures for other times of the year; (3) provide 
temperatures where juvenile bull trout are not at a competitive 
disadvantage with other salmonids (greater than 12[deg]C/54[deg]F 
constant); and (4) provide temperatures that are consistent with the 
temperatures observed in field studies identifying where juvenile bull 
trout have the highest probability to occur (12-13[deg]C/54-55[deg]F 
daily maximum). See Table III-2.
    When determining the overall optimal range for bull trout juvenile 
rearing, EPA reviewed both laboratory and field data and considered 
both physiological and ecological aspects. Optimal growth under limited 
food rations in laboratory experiments, preference temperatures in 
laboratory experiments where fish select between a gradient of 
temperatures, and field studies on where rearing predominately occurs 
are three independent lines of evidence that form the basis for 
identifying the optimal temperature range for bull trout rearing in the 
natural environment. These three lines of evidence show very consistent 
results, with the optimal range between 8-12[deg]C/46-54[deg]F for bull 
trout juvenile rearing. See the Temperature Guidance.
    EPA is proposing that this numeric criterion apply to the warmest 
times of the summer, the warmest years (except for the warmest year out 
of ten), and throughout the water body or segment, including the lowest 
downstream extent of that waterbody or segment designated for that use. 
Because of the conservative nature of how this criterion is applied to 
the water body, EPA believes that it is appropriate to propose this 
numeric criterion near the warmer end of the optimal temperature range 
for bull trout rearing. EPA expects that a numeric criterion near the 
warmer end of the optimal range that is applied during the period of 
summer maximum temperatures is likely to result in temperatures near 
the middle of the optimal range for most of the spring through fall in 
the segments where most of the rearing use occurs. EPA has identified 
three reasons for this. First, if the criterion is met during the 
summer maximum period, then temperatures will be colder than that value 
during the rest of the year. Second, because the criterion would apply 
throughout the water body or segment including the furthest point 
downstream where the use is designated, temperatures will generally be 
colder as you move upstream in the waterbody or segment. Finally, the 
criterion must be met in the warmest years (except for the warmest year 
in ten), so that in most years, the waters will be colder.
    As mentioned previously, the scientific literature indicates that 
water with a temperature of 9[deg]C/48[deg]F is necessary for the 
protection of bull trout spawning. See Table III-2. For a more detailed 
explanation of why EPA believes the proposed 12[deg]C/54[deg]F summer 
maximum criterion would protect bull trout spawning, see section 
III.B.2.vi.
    For four water bodies where EPA is proposing a 12[deg]C/54[deg]F 
7DADM criterion to protect bull trout spawning, FWS believes that 
criterion may not be protective. In these waters, dams delay the 
natural seasonal cooling of waters in the fall to an extent that may 
prevent waters from cooling to 9[deg]C/48[deg]F downstream at times of 
the year when bull trout spawning occurs. The four locations identified 
by FWS are segments immediately downstream of: Laurence Lake Reservoir 
(Hood River Basin on the Middle Fork of the Hood River); Melhorne 
Reservoir and Clear Creek Reservoirs (Pine Creek Sub-Basin of Powder 
Basin); and Carmen Reservoir (behind Carmen dam in the Willamette 
Basin, on the McKenzie River above Blue River).
    EPA requests comment on two approaches to address the four 
identified water body segments where this situation occurs. First, EPA 
requests comment on whether a numeric criterion of 9[deg]C/48[deg]F is 
necessary in these waters at the time of spawning (in addition to the 
12[deg]C/54[deg]F 7DADM criterion) to protect the designated use of 
bull trout spawning. Such a criterion would apply immediately 
downstream of each reservoir, starting at the beginning of the spawning 
period. The proposed bull trout spawning and rearing use designation 
continues downstream of each reservoir for some distance, and some 
warming could occur as the water moves downstream

[[Page 58770]]

from the reservoir. EPA, however, believes that applying a 9[deg]C/
48[deg]F criterion immediately below the reservoir would be protective 
because of the application of the criterion there at the earliest 
spawning dates. Typically, bull trout spawning begins at the upper end 
of the range of waters in which spawning occurs, and gradually moves 
downstream as temperatures naturally cool due to seasonal weather 
changes. Thus, applying a 9[deg]C/48[deg]F criterion immediately below 
the reservoir at the start of the spawning time period would mean that 
temperatures downstream are likely to cool naturally later in the 
spawning period.
    Second, EPA also requests public comment on a narrative provision 
that would limit temperature increases during spawning times to no more 
than 0.3[deg]C/0.5[deg]F greater than the otherwise applicable 
criterion immediately downstream of the reservoir relative to the water 
temperature upstream of the reservoir. EPA believes this prohibition of 
any significant warming would be protective because in each case, EPA 
is proposing to designate bull trout spawning and rearing upstream of 
the reservoir, which will make the 12[deg]C/54[deg]F summer maximum 
criterion applicable there. As discussed above, seasonal temperature 
cycles would be expected to cool those upstream waters to the 9[deg]C/
48[deg]F temperature that is protective of spawning in time for the 
fall time periods when spawning occurs. Limiting the temperature 
increase from these reservoirs to this insignificant increment would 
therefore be expected to protect the bull trout spawning below the 
reservoirs.
    EPA believes it is important to consider the attainability of the 
bull trout rearing and spawning use and accompanying criterion EPA is 
proposing. As such, EPA will consider data and information submitted 
regarding the attainability of this use and criterion on the water 
bodies where it is proposed, including data regarding attainability of 
the additional criteria it is considering for the four water bodies 
mentioned above.
    ii. Temperature Criteria for Waters Designated for Salmon and 
Steelhead Core Juvenile Rearing. EPA proposes a 16[deg]C/61[deg]F 
maximum 7DADM numeric criterion (which roughly translates to an 
equivalent constant temperature of 14.5[deg]C/58[deg]F) for waters 
designated for salmon and steelhead core juvenile rearing to: (1) 
Protect juvenile salmon and trout from lethal temperatures (23-
26[deg]C/73-79[deg]F constant); (2) provide conditions during the 
period of summer maximum temperature at the upper end of the optimal 
temperature range when food is limited for juvenile growth (10-
16[deg]C/50-61[deg]F constant), thus providing optimal temperatures for 
other times of the year; (3) protect against temperature-induced 
elevated disease rates (14-17[deg]C/57-63[deg]F constant); and (4) 
provide temperatures that juvenile salmon and trout prefer, as 
demonstrated by studies indicating fish in high densities at these 
temperatures (10-17[deg]C/50-63[deg]F constant or less than 18[deg]C/
64[deg]F 7DADM). See Table III-1.
    When determining the overall optimal temperature range for salmon 
and steelhead juvenile rearing, EPA reviewed both laboratory and field 
data and considered both physiological and ecological aspects. Optimal 
growth under limited food rations in laboratory experiments, preference 
temperatures in laboratory experiments where fish select between a 
gradient of temperatures, and field studies on where rearing 
predominately occurs are three independent lines of evidence that form 
the basis for identifying the optimal temperature range for salmon and 
steelhead juvenile rearing in the natural environment. These three 
lines of evidence show very consistent results, with the optimal range 
between 10-16[deg]C/50-61[deg]F for salmon and steelhead juvenile 
rearing. See the Temperature Guidance.
    EPA is proposing that this numeric criterion apply to the warmest 
times of the summer, the warmest years (except for the warmest year in 
ten), and and throughout the water body or segment, including the 
lowest downstream extent of the waterbody or segment designated for 
that use. Because of the conservative nature of how this criterion is 
applied, EPA believes that it is appropriate to propose numeric 
criteria near the warmer end of the optimal temperature range for core 
juvenile salmon and trout rearing. EPA expects that a numeric criterion 
near the warmer end of the optimal range that is applied during the 
period of summer maximum temperatures is likely to result in 
temperatures near the middle of the optimal range for most of the 
spring through fall in the segments where most of the rearing use 
occurs. EPA has identified three reasons for this. First, if the 
criterion is met during the summer maximum period, then temperatures 
will be colder than that value during most of the rest of the year. 
Second, because the criterion would apply throughout the waterbody or 
segment, including the furthest point downstream where the use is 
designated, temperatures will generally be colder throughout the rest 
of the waterbody or segment. Finally, criterion must be met in the 
warmest years (except for the warmest year in ten), so that in most 
years, the waters will be colder.
    iii. Temperature Criteria for Waters Designated for Salmon and 
Trout Juvenile Rearing and Migration. EPA proposes an 18[deg]C/64[deg]F 
maximum 7DADM criterion (which roughly translates to an equivalent 
constant temperature of 16.5[deg]C/62[deg]F) for waters designated for 
salmon and trout juvenile rearing and migration to: (1) Protect against 
lethal conditions for both juveniles and adults (21-22[deg]C/70-
72[deg]F constant); (2) prevent migration blockage conditions for 
migrating adults (21-22[deg]C/70-72[deg]F average); (3) provide optimal 
or near optimal juvenile growth conditions (under limited food 
conditions) during the summer maximum conditions and optimal conditions 
during the rest of the year (10-16[deg]C/50-61[deg]F constant); and (4) 
prevent adults and juveniles from high disease risk and minimize the 
exposure time to temperatures that can lead to elevated disease rates 
(14-17[deg]C/57-63[deg]F constant). See Table III-1.
    Data and information in the record indicates that salmon and 
steelhead will use waters that are warmer than their optimal thermal 
range during the summer and that portions of rivers and streams in the 
Pacific Northwest naturally (i.e., absent human impacts) were 
historically warmer than the optimal thermal range for salmonids during 
the period of summer maximum temperatures. Therefore, EPA proposes a 
7DADM numeric temperature criterion that is slightly warmer than the 
optimal thermal range for salmon and steehead to protect this use. EPA 
believes this criterion would provide sufficient protection from lethal 
conditions and sub-lethal effects that would significantly adversely 
affect these uses. As a result, if this value is met during the period 
of summer maximum temperatures, then during other times of the summer 
and the rest of the year, temperatures will likely be within the 
optimal temperature range. An additional level of protection is 
provided by requiring the criterion to be met during the warmest years 
(except for the warmest year in ten), thus ensuring that the water will 
be colder in most years.
    iv. Temperature Criteria for Waters Designated for Salmon and 
Steelhead Migration. As discussed in section III.B.2.iv, the salmon and 
steelhead migration use applies to the lower Willamette River, a 
portion of the John Day River, and a portion of the Snake River. To 
protect salmon and steelhead migration, EPA proposes a 20[deg]C/
68[deg]F maximum 7DADM numeric criterion in conjunction with a 
requirement to

[[Page 58771]]

ensure the presence of well-distributed cold water refugia. This 
20[deg]C/68[deg]F criterion roughly translates to an equivalent 
constant temperature of about 19-20[deg]C/66-68[deg]F because the large 
mainstem rivers where this use is proposed have little diurnal 
variation. Well-distributed cold water refugia are portions of a river 
with cooler nighttime temperatures, or portions of a river that are 
cooler during the day, that allow salmon and steelhead to migrate 
through the river segment with minimal stress. Spatial cold water 
refugia are waters that are at least 2[deg]C/4[deg]F colder than the 
daily maximum temperature at the nearest location in the main river 
channel. Spatial cold water refugia results from cold tributaries and 
cooler groundwater flow entering into a warmer river. Temporal cold 
water refugia are waters in rivers at times of the day when water 
temperatures are at least 2[deg]C/4[deg]F colder than the daily maximum 
temperatures on that day in the main river channel (from diurnal 
temperature variation in a river), and are waters in rivers on days in 
the summer when maximum water temperatures are at least 2[deg]C/4[deg]F 
colder than the summer maximum temperature (from seasonal temperature 
variation).
    EPA believes that a 20[deg]C/68[deg]F criterion accompanied by a 
narrative criterion to ensure the presence of well-distributed cold 
water refugia would protect migrating juveniles and adults from lethal 
temperatures and would prevent migration blockage conditions. However, 
information in the record indicates that many sublethal effects could 
occur without cooler nighttime temperatures or portions of the river 
that are cooler during the day, rendering the numeric criterion of 
20[deg]C/68[deg]F alone unprotective of the designated use. See 
Temperature Guidance, pp. 28-30. In such a situation, even if the river 
meets a 20[deg]C/68[deg]F criterion for maximum temperatures, the 
duration of exposure to 20[deg]C/68[deg]F temperatures may cause 
adverse effects in the form of increased disease and decreased swimming 
performance in adults, and increased disease, impaired smoltification, 
reduced growth, and increased predation for late emigrating juveniles 
(e.g., fall chinook in the Columbia and Snake Rivers). Therefore, in 
order to protect this use, it is appropriate to accompany the numeric 
criterion of 20[deg]C/68[deg]F with a narrative provision that would 
require protection of well-distributed cold water refugia.
    EPA believes the amount of cold water refugia would be sufficient 
to protect this use if a typical migrating salmon or steelhead could 
access waters that are 18[deg]C/64[deg]F or colder for at least 12 
hours a day. Salmon and steelhead that are exposed to 18[deg]C/64[deg]F 
for half the day and up to 20[deg]C/68[deg]F for the remainder of the 
day are likely to be at less risk than if these fish were continuously 
exposed to 20[deg]C/68[deg]F because studies show the severity of 
adverse effects from elevated water temperatures increases 
significantly as temperatures reach 20-21[deg]C/68-70[deg]F.
    As a practical matter, this provision is likely to be implemented 
during establishment of a Total Maximum Daily Load (TMDL), because all 
the waters where EPA is proposing for this use currently do not attain 
20[deg]C/68[deg]F, thus a TMDL is required based on the numeric 
criteria. When applying this narrative criterion in the context of a 
TMDL, the State or EPA would identify the existing cold water refugia 
and determine whether or not they were sufficient to protect the use. 
Existing cold water refugia would be identified in the TMDL and the 
existing temperatures of the cold water refugia would be the applicable 
numeric criteria for those water segments. Thus, the TMDL would be the 
document where the narrative cold water refugia criteria is translated 
into numeric terms. If the existing cold water refugia were 
insufficient to protect the use, then additional cold water refugia 
sufficient to protect the use would also be identified and expressed in 
numeric terms in the TMDL. Depending on how the TMDL is structured, the 
expression of cold water refugia in numeric terms might also occur 
during the development of watershed plans to implement the TMDL rather 
than in the TMDL itself. In addition, the watershed plans may contain 
measures to protect and restore the cold water refugia.
    In the future, as these waters come into attainment of the 
20[deg]C/68[deg]F numeric criterion, attainment of the specific numeric 
cold water refugia criteria identified in the TMDL or watershed plan 
will also need to be assessed to determine the attainment status of 
these waters.
    In the NPDES permitting context, existing cold water refugia are 
required to be protected. Where additional cold water refugia have not 
yet been identified, EPA believes it is impracticable to do so in the 
context of an individual NPDES permit because this assessment requires 
an evaluation of the adequacy of the existing cold water refugia on the 
water body as a whole and is likely to be data intensive. EPA believes 
this kind of comprehensive assessment is only practicable in the 
context of TMDL development. Once the TMDL is completed, however, any 
wasteload allocations to protect either existing or new cold water 
refugia must be incorporated into NPDES permits during the next permit 
cycle.
    EPA seeks comment on whether a 18[deg]C/64[deg]F 7DADM criterion 
(without well-distributed cold water refugia) would be a more 
appropriate criterion for protection of the salmon and steelhead 
migration use, since the record shows that it would be equally 
protective of the use and may be more straight forward to implement 
than the 20[deg]C/68[deg]F with a narrative criterion for well-
distributed refugia. See EPA Temperature Guidance, pp15-25. EPA, 
however, believes 18[deg]C/64[deg]F throughout the waters would be 
extremely costly to attain as compared to the 20[deg]C/68[deg]F with a 
narrative criterion for well-distributed refugia.
    v. Temperature Criteria for Waters Designated for Salmon and 
Steelhead Spawning Through Fry Emergence. EPA proposes a 13[deg]C/
55[deg]F maximum 7DADM criterion (which roughly translates to an 
equivalent constant temperature of 11.5[deg]C/53[deg]F) for this use 
(during the time of year when it applies) to: (1) Protect gametes 
inside adults prior to spawning (less than 13[deg]C/55[deg]F constant), 
(2) provide temperatures at which spawning is most frequently observed 
in the field (4-14[deg]C/39-57[deg]F daily average), and (3) provide 
protective temperatures for egg incubation (4-12[deg]C/39-54[deg]F 
constant for good survival and 6-10[deg]C/43-50[deg]F constant for 
optimal range) that occurs over the winter (salmon) and spring (trout), 
assuming the typical annual thermal pattern. As discussed in section 
III.B.1, EPA believes that in many water bodies, attainment of the 
summer maximum criteria for all the other proposed designated uses will 
result in attainment of the 13[deg]C/55[deg]F maximum 7DADM criterion 
for protection of salmon and steelhead spawning through fry emergence.
4. Alternative Criteria
    i. EPA's Basis for the Proposed Natural Conditions Criterion. EPA 
is proposing an alternative criterion for natural conditions that would 
apply instead of the numeric criterion, where applicable. The criterion 
would require that where a water body or segment's water temperature 
under natural conditions exceeds the numeric criterion identified 
above, then the natural condition would be the applicable water quality 
criterion. Natural temperatures are those that would exist in the 
absence of human activities that alter stream temperatures. EPA views 
numeric criteria that reflect natural conditions to be protective of

[[Page 58772]]

salmonid designated uses because river temperatures prior to human 
impacts clearly supported healthy salmonid populations. EPA intends 
that the estimate of the temperature reflecting natural conditions be 
determined by the State or EPA using a scientifically-defensible method 
that utilizes the best available data, as indicated in the proposed 
rule at 40 CFR 131.39(d)(1). Typically, this determination is made in 
the context of a TMDL. EPA recognizes, however, that there will always 
be uncertainties in estimating natural conditions. Potential sources of 
uncertainty are numerous, including, but not limited to, data gaps, 
measurement errors, model errors, omissions in identification of 
impacts, and aggregation errors. It is important that regulatory 
agencies document the sources of uncertainty in any assessment for the 
benefit of decision-makers, stakeholders, and the public.
    Where the natural temperature conditions so estimated exceeds 
20[deg]C/68[deg]F, EPA proposes that the river must have well-
distributed cold water refugia. EPA views cold water refugia to be an 
important aspect of the natural condition that must be specifically 
identified in waters where the estimated natural condition exceeds 
20[deg]C/68[deg]F because of the significant adverse effects to salmon 
and steelhead exposed to temperatures exceeding 20[deg]C/68[deg]F. See 
Table 1. Well-distributed cold water refugia allows salmon and 
steelhead to minimize their exposure to temperatures that exceed 
20[deg]C/68[deg]F. As discussed in section III.C.3.iv., EPA believes 
the amount of cold water refugia would be sufficient if salmon or 
steelhead could access waters that are at least 2[deg]C/4[deg]F colder 
than the estimated natural maximum temperature for the main channel for 
at least 12 hours a day. Refer to section III.C.3.iv. for a discussion 
on how cold water refugia should be addressed in the context of TMDLs, 
NPDES permits, and waterbody assessments.
    Overview of Methods to Estimate Natural Background Temperatures: 
There are a number of different ways of estimating natural temperature 
conditions for the purposes of applying this proposed narrative 
criterion. These include: (1) Demonstrating that current temperatures 
reflect natural conditions, (2) using a non-degraded reference stream 
for comparison, (3) using historical temperature data, (4) using 
statistical or computer simulation models, and (5) assessing the 
historical distribution of salmonids. There may be other ways as well. 
Each approach has its strengths and weaknesses and therefore may or may 
not be most appropriate for a given situation. Moreover, all of these 
approaches have uncertainty, which should be quantitatively described 
where possible. EPA encourages the use of a combination of approaches 
to estimate natural background temperatures, where feasible. Below is 
an overview of the five approaches listed above.
    Demonstrating That Current Temperatures Reflect Natural Conditions: 
Under this approach, the past and present human activities that could 
impact the river temperatures are documented and a technical 
demonstration is made that the human activities do not currently impact 
temperatures. This approach is most applicable to non-degraded 
watersheds (e.g., State and National parks, wilderness areas, and 
protected State and National lands). These watersheds can be used as 
``reference'' streams for estimating the natural background 
temperatures of degraded streams (see below). If there is a small human 
impact on temperatures, it may also be possible to estimate the human 
impact and subtract it from current temperatures to calculate the 
natural temperatures.
    Comparisons to a Reference Stream: It is often reasonable to assume 
that the natural temperatures of a thermally degraded stream are 
similar to those of a non-degraded stream, so long as the location, 
landscape context, and physical structure of the stream are 
sufficiently similar. The challenge to this approach is finding a 
reference stream that is of similar location, landscape context, and 
physical structure. Because large rivers are unique and most in the 
Pacific Northwest have been significantly impacted by human activities, 
this approach is most applicable to smaller streams where a reference 
stream with current temperatures at natural conditions exists.
    Historical Temperature Data: For some rivers, historical 
temperature data are available that reflect temperatures prior to human 
influences on the river's temperature regime, and can be used as an 
estimate of natural temperatures. Factors that lend uncertainty to 
historic temperature data are the uncertain nature of the quality of 
the data and whether or not humans affected temperature prior to data 
collection. Further, historical temperature data often do not 
adequately capture the spatial and/or temporal variability in stream 
temperature due to limited spatial or temporal sampling. Historical 
data may be useful, however, for verifying estimates of modeled natural 
temperatures.
    Temperature Models: Two major methods have been commonly used for 
water quality modeling in the United States over the last 20 years: (1) 
Statistical models, which are based on observed relationships between 
variables and are often used in conjunction with measurements from a 
reference location, and (2) process-based models, which attempt to 
quantify the natural processes acting on the water body. Process-based 
models are often employed when no suitable reference locations can be 
identified.
    Statistical models, also referred to as empirical models, estimate 
the thermal conditions of streams by using statistics to find 
correlations between stream temperature and those landscape 
characteristics that control temperature (e.g., elevation, latitude, 
aspect, riparian cover, etc.). The equations in statistical models 
describe the observed relationships in the variables as they were 
measured in a specific location. If the specific location is a non-
degraded reference stream, then the model can be used to estimate 
natural conditions in degraded streams. Statistical models have the 
advantage of being relatively simple, as they rely on general data and 
statistics to develop correlations.
    The comparability between the reference water body where the 
statistical correlations are generated and the assessment water body 
strongly affects the applicability of statistical models. Uncertainties 
in statistical model results increase with increasing dissimilarity 
between the landscape characteristics of the reference and assessment 
water bodies. Uncertainties also increase when models do not include 
landscape characteristics that control important processes affecting 
the water temperature. For these reasons, statistical models are best 
suited for small headwater streams or for generalized predictions 
across a large landscape. Process models, also referred to as 
simulation models, are based on mathematical characterizations of the 
critical processes that affect water temperature in rivers. The 
equations are constructed to represent the observed or expected 
relationships and are generally based on physical or chemical 
principles that govern the fate and transport of heat in a river (e.g., 
net heat flux from long-wave radiation, direct short wave radiation, 
convection, conduction, evaporation, streamside shading, streambed 
friction, and water's back radiation) (Bartholow, 2000).
    Estimating water temperature with a process model is generally a 
two-step process. As a first step, the current river temperatures are 
estimated with system characteristics (e.g., amount of shade

[[Page 58773]]

provided by the canopy, river geometry, point source inputs, etc.) 
reflecting current conditions. Model performance can then be evaluated 
by comparing simulated temperatures to measured temperatures. Once the 
model is thus calibrated, the second step involves changing the system 
characteristics to represent natural conditions. Examples of these 
changes are removal of point source discharges from the model inputs, 
changing the model hydrodynamics from impounded conditions due to a dam 
to free-flowing conditions, and increasing the riparian shade to 
represent a natural forest.
    Unlike statistical models, process models do not rely upon data 
from reference locations, so they can be used for rivers that have no 
suitable natural reference comparisons available. Thus, process models 
are well suited for estimating natural conditions for larger streams 
and rivers. Although powerful, process models are by no means 
infallible. As noted above, there are numerous potential sources of 
uncertainty in model estimates, and these should be well documented in 
decision-making.
    In addition to estimating natural conditions, process-based models 
are useful for understanding the basic mechanisms influencing water 
temperature in a watershed, understanding the relative contributions 
from different sources at different locations, understanding cumulative 
downstream impacts from various thermal loads, performing ``what if'' 
scenarios for different mitigation options, and setting TMDL 
allocations.
    Historical Fish Distributions: Maps of historic salmonid 
distributions and their time of use can provide rough estimates of 
natural temperatures. Areas where salmonids existed historically likely 
provided temperatures suitable for salmonids and, as described in the 
Temperature Guidance, EPA has a fairly good understanding of suitable 
temperatures for various life stages of salmonids.
    ii. EPA's Basis for Proposing a Criterion to Protect Waters That 
Are Currently Cold. One of the important principles in protecting the 
designated uses proposed in this rule is the protection of existing 
high quality habitat. EPA, therefore, believes it is important to have 
strong regulatory measures to protect waters with ESA-listed salmonids 
that are currently colder than EPA's proposed numeric criteria. EPA is 
proposing a narrative criterion specific to waters in which salmonid 
species that are listed as threatened or endangered under the ESA are 
present, and where available data and information from ten years prior 
to the date of the publication of the final rule in the Federal 
Register reflect the temperature in the water body and demonstrate that 
the warmest summer maximum 7DADM temperature is colder than the 
applicable numeric criterion. In these cases, the summer maximum 7DADM 
temperature shall be the applicable water quality criterion, unless a 
complete data record of ten years is available, in which case the 
maximum 7DADM temperature for the year with the second highest maximum 
7DADM shall be the applicable criterion.
    Because the temperatures of many waters in the Pacific Northwest 
are currently higher than the summer maximum criteria proposed in this 
rule, the high quality, thermally-optimal waters that do exist are 
important for the survival of ESA-listed salmonids. Additional warming 
of these waters will likely cause harm by further limiting the 
availability of thermally optimal waters. Further, protection of these 
cold water segments in the upper part of a river basin plays an 
important role in maintaining temperatures downstream. Thus, in 
situations where downstream temperatures currently exceed numeric 
criteria, upstream temperature increases in waters currently colder 
than the criteria may further contribute to the non-attainment 
downstream, especially where there are insufficient intervening river 
miles to allow the river to return to equilibrium temperatures. See 
``Issue Paper 3: Spatial and Temporal Patterns of Stream Temperature,'' 
Prepared as Part of EPA Region 10 Temperature Water Quality Criteria 
Guidance Development Project. EPA-910-D-01-003, May 2001.; ``Technical 
Synthesis: Scientific Issue Relating to Temperature Criteria for 
Salmon, Trout, and Char Native to the Pacific Northwest,'' A Summary 
Report Submitted to the Policy Workgroup of the EPA Region 10 Water 
Temperature Criteria Guidance Project. EPA-910-D-01-007. Finally, 
natural summertime temperatures in Pacific Northwest waters were 
spatially diverse, with areas of cold-optimal, warm-optimal, and 
warmer-than-optimal water. The natural conditions narrative criterion 
described previously deals with natural conditions reflecting warmer-
than-optimal water temperature. EPA believes it is important, however, 
to balance the effects of these warmer waters by adopting provisions to 
protect waters that are at the colder end of their optimal thermal 
range. EPA's proposed rule is intended to do this.
    Provisions to protect waters currently colder than numeric criteria 
can also be important to ensure the numeric criteria proposed today 
protect salmonid uses. As discussed previously, EPA's proposed criteria 
are based in part on the judgment that meeting the criteria at the 
lowest downstream point at which the use is designated will likely 
result in cooler waters upstream. These proposed cold water protection 
provisions provide more certainty that this will be true.
    EPA requests comment on an alternative that would rely on the 
State's existing antidegradation policy and EPA's proposed 
implementation procedures to protect these high-quality waters. In 
general, antidegradation policies, which are part of water quality 
standards, prohibit a lowering of water quality in high-quality waters 
except when specific procedural and substantive requirements are 
satisfied. Using the antidegradation policy to protect high-quality 
waters may provide greater site-specific flexibility because it would 
not be necessary to promulgate a rule change to accomodate a situation 
where some temperature increase (but still below the applicable 
criterion) was unavoidable. Also, there may be practical difficulties 
in determining what the applicable criterion is for high-quality waters 
under the proposed approach if data is incomplete or implementation 
resources are limited.

              Table III-1.--Summary of Temperature Considerations for Salmon and Trout Life Stages
----------------------------------------------------------------------------------------------------------------
            Life stage               Temperature consideration   Temperature and unit          Reference
----------------------------------------------------------------------------------------------------------------
Spawning and Egg Incubation.......  * Temp. Range at which      4-14 [deg]C (daily     Issue Paper 1; pp 17-18.
                                     Spawning is Most            avg).                 Issue Paper 5; p 81.
                                     Frequently observed in
                                     the Field.
                                    * Egg Incubation Studies..
                                    --Results in Good Survival  4-12 [deg]C            Issue Paper 5; p 16.
                                                                 (constant).
                                    --Optimal Range...........  6-10 [deg]C
                                                                 (constant).

[[Page 58774]]

 
                                    * Reduced Viability of       13 [deg]C  Issue Paper 5; pp 16 and
                                     Gametes in Holding Adults.  (constant).            75.
-----------------------------------
Juvenile Rearing..................  * Lethal Temp. (1 Week      23-26 [deg]C           Issue Paper 5; pp 12, 14
                                     Exposure).                  (constant).            (Table 4), 17, and 83-
                                                                                        84.
                                    * Optimal Growth..........
                                    --unlimited food..........  13-20 [deg]C           Issue Paper 5; pp 3-6
                                                                 (constant).            (Table 1), and 38-56.
                                    --limited food............  10-16 [deg]C
                                                                 (constant).
                                    * Rearing Preference Temp.  10-17 [deg]C           Issue Paper 1; p 4 (Table
                                     in Lab and Field Studies.   (constant).            2).
                                                                <18 [deg]C (7DADM)...   Welsh et al. 2001.
                                    * Impairment to             12-15 [deg]C           Issue Paper 5; pp 7 and
                                     Smoltification.             (constant).            57-65.
                                                                                       Issue Paper 5; pp 7 and
                                                                                        57-65.
                                    * Impairment to Steelhead   12 [deg]C
                                     Smoltification.             (constant).
                                    * Disease Risk (lab         .....................  Issue Paper 4, pp 12-23.
                                     studies).
                                    --High....................  18-20
                                                                 [deg]C (constant).
                                    --Elevated................  14-17 [deg]C
                                                                 (constant).
                                    --Minimized...............  12-13 [deg]C
                                                                 (constant).
-----------------------------------
Adult Migration...................  * Lethal Temp. (1 Week      21-22 [deg]C           Issue Paper 5; pp 17, 83-
                                     Exposure).                  (constant).            87.
                                    * Migration Blockage and    21-22 [deg]C           Issue Paper 5; pp 9, 10,
                                     Migration Delay.            (average).             72-74.
                                                                                       Issue Paper 1; pp 15-16.
                                    * Disease Risk (lab
                                     studies).
                                    --High....................  18-20       Issue Paper 4; pp 12-23.
                                                                 [deg]C (constant).
                                    --Elevated................  14-17 [deg]C
                                                                 (constant).
                                    --Minimized...............  12-13 [deg]C
                                                                 (constant).
                                    * Adult Swimming
                                     Performance.
                                    --Reduced.................  20 [deg]C   Issue Paper 5; pp 8, 9,
                                                                 (constant).            13, 65-71.
                                    --Optimal.................  15-19 [deg]C
                                                                 (constant).
                                    * Overall Reduction in      17-18       Issue Paper 5; p 74.
                                     Migration Fitness due to    [deg]C (prolonged
                                     Cumulative Stresses.        exposures).
----------------------------------------------------------------------------------------------------------------


                 Table III-2.--Summary of Temperature Considerations for Bull Trout Life Stages
----------------------------------------------------------------------------------------------------------------
            Life stage               Temperature consideration   Temperature and unit          Reference
----------------------------------------------------------------------------------------------------------------
Spawning and Egg Incubation.......  * Spawning Initiation.....  <9 [deg]C (constant).  Issue Paper 5; pp 88-91.
                                    * Temp. at which Peak       <7 [deg]C (constant).  Issue Paper 5; pp 88-91.
                                     Spawning Occurs.
                                    * Optimal Temp. for Egg     2-6 [deg]C (constant)  Issue Paper 5; pp 18, 88-
                                     Incubation.                                        91.
                                    * Substantially Reduced     6-8 [deg]C (constant)  Issue Paper 5; pp 18, 88-
                                     Egg Survival and Size.                             91.
-----------------------------------
Juvenile Rearing..................  * Lethal Temp. (1 week      22-23 [deg]C           Issue Paper 5; p 18.
                                     exposure).                  (constant).
                                    * Optimal Growth..........
                                    --unlimited food..........  12-16 [deg]C           Issue Paper 5; p 90.
                                                                 (constant).            Selong et al 2001. Bull
                                                                                        trout peer review, 2002.
                                    --limited food............  8-12 [deg]C
                                                                 (constant).
                                    * Highest Probability to    12-13 [deg]C (daily    Issue Paper 5; p 90.
                                     occur in the field.         maximum).              Issue Paper 1; p 4
                                                                                        (Table 2). Dunham et
                                                                                        al., 2001. Bull trout
                                                                                        peer review, 2002.
                                    * Competition Disadvantage  12 [deg]C   Issue Paper 1; pp 21-23.
                                                                 (constant).            Bull trout peer review,
                                                                                        2002.
----------------------------------------------------------------------------------------------------------------

D. IGDO Criterion for Salmonid Spawning

1. Background
    The early life stages of fish are recognized as being the most 
sensitive and requiring relatively high DO concentrations. The oxygen 
demand by embryos depends on temperature and on the stage of 
development with the greatest DO required just prior to hatching. When 
water temperature is near 15[deg]C/58[deg]F, maximum critical levels of 
DO (where ambient levels meet metabolic needs) for steelhead embryos 
were estimated at 10.2 mg/L (Rombough, 1986). Rombough (1986) and other 
researchers have shown that critical oxygen concentration increases 
with temperature and with the stage of development of the fish. In 
experiments to determine critical DO levels in steelhead embryos, 
Rombough (1988) found that critical DO levels rose from less than 1.0 
mg/L shortly after fertilization to 9.7 mg/L prior to hatching (implies 
an IGDO of at least 6.7 mg/L), depending on the temperature. The 
crucial timing of IGDO, stream temperature, and flow rate varies with 
each salmonid Evolutionarily Significant Unit's specific 
characteristics. Sowden and Power (1985) observed that survival in 
field studies is negligible when IGDO falls below 5 mg/L. This is 
consistent with other studies. Phillips and Campbell (1962) and Maret 
et al. (1993) observed no or negligible survival in field studies where 
IGDO fell below 8.0 mg/L.

[[Page 58775]]

Turnpenny and Williams (1980) also found survival significantly reduced 
at 8 mg/L. Other studies found reduced growth of juvenile salmon 
correlating with IGDO with significant reductions occuring at levels 
below 9 mg/L (Maret et al., 1993). Growth reductions result in small-
sized juveniles that can be poor competitors and face increased risks 
from predation, disease, and starvation (Mason, 1969; Chapman and 
McLeod, 1987).
2. EPA's Proposed IGDO Criterion
    EPA is proposing a water quality criterion for IGDO for the 
protection of bull trout spawning and salmon and steelhead spawning 
through fry emergence such that in water bodies or segments in which 
the numeric temperature criteria for bull trout spawning and salmon and 
steelhead spawning through fry emergence applies according to the 
proposed use designation maps, the spatial median IGDO shall not be 
less than 8.0 mg/L.
    Altitude and temperature place physical limitations on the oxygen 
concentration in water. Oxygen saturation level decreases with 
increasing altitude and naturally, increasing temperature. (Oregon 
Department of Environmental Quality, Dissolved Oxygen 1992-1994 Water 
Quality Standards Review Final Issue Paper, June 1995). Thus, the IGDO 
criterion for the protection of egg incubation and fry emergence may 
not be achievable in some locations and times. EPA recognizes the need 
to have an alternative criterion when high altitude or naturally 
occurring warm temperatures preclude meeting the 8 mg/L IGDO criterion. 
Therefore, EPA proposes the following modifying provision to the IGDO 
criterion. Where barometric pressure, altitude, and air temperature 
preclude attainment of the IGDO criterion, then the criterion shall be 
not less than 95 percent of the maximum IGDO level attainable given the 
barometric pressure, altitude, and air temperature.
    EPA requests comment on its proposed IGDO criterion, which is based 
on the studies cited above, and any additional data relevant to this 
criterion. EPA also notes that in general, an ambient water column DO 
level of 11 mg/L will ensure an IGDO of 8 mg/L and requests comment on 
whether an IGDO criterion is necessary to protect salmonid spawning in 
waters that already have an 11 mg/L ambient DO criterion.

E. Antidegradation Implementation Methods

1. Background
    Section 303 (33 U.S.C. 1313) of the CWA requires States and 
authorized Tribes to adopt water quality standards for waters of the 
United States within their applicable jurisdictions. Such water quality 
standards must include, at a minimum: (1) Designated uses for all water 
bodies within their jurisdictions, (2) water quality criteria necessary 
to protect the most sensitive of the uses, and (3) antidegradation 
provisions consistent with the regulations at 40 CFR 131.12. 
Antidegradation is an important tool for States and authorized Tribes 
to use in meeting the CWA's requirement that water quality standards 
protect the public health or welfare, enhance the quality of water and 
meet the objective of the CWA to restore and maintain the chemical, 
physical and biological integrity of the nation's waters.
    EPA's regulation at 40 CFR 131.12 requires that States and 
authorized Tribes adopt antidegradation policies to provide three 
levels of water quality protection and identify implementation methods. 
The first level of protection at 40 CFR 131.12(a)(1) requires the 
maintenance and protection of existing instream water uses and the 
level of water quality necessary to protect those existing uses (tier 
1). Protection of existing uses is the ``floor'' of water quality 
protection afforded to all waters of the United States. Existing uses 
are ``* * * those uses actually attained in the water body on or after 
November 28, 1975, whether or not they are included in the water 
quality standards.'' (40 CFR 131.3(e))
    The second level of protection is for high quality waters (tier 2). 
High quality waters are defined in 40 CFR 131.12(a)(2) as waters where 
the quality is better than the levels necessary to support propagation 
of fish, shellfish, and wildlife and recreation in and on the water. 
This high water quality is to be maintained and protected unless the 
State or authorized Tribe finds, after public participation and 
intergovernmental review, that allowing lower water quality is 
necessary to accommodate important economic or social development in 
the area in which the waters are located. In allowing lower water 
quality, the State or authorized Tribe must assure water quality 
adequate to protect existing uses. Further, prior to allowing lower 
water quality, the State or authorized Tribe must ensure that all 
applicable statutory and regulatory requirements are achieved for all 
other new and existing point sources and all cost-effective and 
reasonable best management practices required by the State or 
authorized Tribe are achieved for nonpoint source control.
    Finally, the third and highest level of antidegradation protection 
is for Outstanding National Resource Waters (ONRWs) (tier 3). If a 
State or authorized Tribe determines that the characteristics of a 
water body constitute an outstanding National resource, such as waters 
of National and State parks and wildlife refuges and waters of 
exceptional recreational or ecological significance, and designates a 
water body as such, then those characteristics must be maintained and 
protected. See 40 CFR 131.12(a)(3).
    In addition to requiring States and authorized Tribes to have an 
antidegradation policy, 40 CFR 131.12 requires States to identify 
methods for implementing such a policy. Such methods are not required 
to be contained in the State's regulation, but as they inform EPA's 
judgment regarding whether the State's antidegradation policy is 
consistent with the Federal regulations at 40 CFR 131.12, they are 
subject to EPA review. Where the State chooses to make such methods 
part of its water quality standards regulations, section 303(c)(3) of 
the CWA and EPA's implementing regulations require them to be submitted 
to EPA for review. When a State or authorized Tribe chooses to develop 
such methods as guidance or outside of regulation, EPA reviews the 
methods either in connection with the State or Tribe's submission of an 
amendment to its antidegradation regulations under CWA section 
303(c)(3) or under its discretionary authority to review existing water 
quality standards under CWA section 303(c)(4).
    EPA's regulations at 40 CFR 131.12 provide a great deal of 
discretion to States regarding the amount of specificity required in 
antidegradation implementation methods. The regulations do not specify 
minimum elements for such methods, but do require that such methods not 
undermine the intent of the antidegradation policy. See Advanced Notice 
of Proposed Rulemaking, 63 FR 36742, 36781 July 7, 1998.
    Finally, EPA wishes to explain the applicability of antidegradation 
provisions to point sources and nonpoint sources. While antidegradation 
requirements as water quality standards apply to the waterbody, the CWA 
requires only that antidegradation be applied to point sources because 
the CWA only gives EPA authority to regulate point sources.

[[Page 58776]]

Appalachian Power Company v. Train, 545 F.2d 1351, 1373 (4th Cir. 
1976). Thus, whether antidegradation applies to nonpoint sources is 
solely a question of State and Tribal law. The CWA and EPA's 
regulations leave to the States and authorized Tribes the decision 
whether to regulate such sources by requiring that they undergo 
antidegradation review. American Wildlands v. Browner, 260 F.3d 1192, 
1198 (10th Cir. 2001). EPA's proposed antidegradation methods must also 
meet the requirements of the ESA.
2. Why Is EPA Proposing Antidegradation Implementation Methods for the 
State of Oregon?
    EPA is proposing methods for implementing the antidegradation 
policy adopted by the State of Oregon in order to comply with the 
court's final judgment in Northwest Environmental Advocates v. EPA & 
NMFS (August 13, 2003). At the time of the Oregon water quality 
standards litigation, EPA had approved Oregon's antidegradation policy. 
In addition, at the time of the initial briefing in the Oregon 
litigation, Oregon was in the process of developing methods for 
implementing its antidegradation policy. See ``State of Oregon: 
Antidegradation Policy Implementation Internal Management Directive for 
NPDES Permits and Section 401 Water Quality Certifications,'' March 
2001 (``the Directive''). These methods were not contained in Oregon's 
water quality standards regulations and were not submitted to EPA for 
review and approval as a ``new or revised standard'' under CWA section 
303(c)(3). In addition, EPA did not review the Directive as part of any 
discretionary action to review Oregon's existing antidegradation 
regulations under CWA section 303(c)(4). Because of the jurisdictional 
argument EPA made in the Oregon litigation and because the 
implementation methods had not been submitted to EPA for review, EPA 
did not inform the court of the existence of Oregon's implementation 
methods. EPA argued that EPA was not subject to a mandatory duty under 
CWA section 303(c)(3) because there was no new or revised water quality 
standard regarding antidegradation that triggered a mandatory duty for 
EPA review, and that there could be no Administrative Procedure Act 
claim unless and until a party petitioned the Agency to act under its 
discretionary authority, because absent such a petition, there is no 
agency ``action'' to review. Although the court agreed with EPA in 
holding that EPA did not have a mandatory duty to review Oregon's 
implementation methods, the court found that it could immediately 
review EPA's failure to exercise its discretionary authority to review 
Oregon's methods for implementing its antidegradation policy. 268 
F.Supp.2d 1255, 1264 (D.Or. 2003). The court held that EPA acted 
arbitrarily in failing to exercise its discretion to promulgate an 
implementation plan for Oregon. The court, therefore, ordered EPA to 
promulgate an antidegradation implementation plan for Oregon. While EPA 
does not agree with the court's decision, EPA is complying with the 
court's order. 268 F.Supp.2d at 1265.
3. What Antidegradation Implementation Methods Is EPA Proposing for the 
State of Oregon?
    Subsequent to the court's order, Oregon proposed to amend its water 
quality standards, including its antidegradation regulations, to 
include key elements of its antidegradation implementation methods 
within its regulations. Oregon Administrative Rule (OAR) 340-041-0004; 
August 15, 2003. EPA's proposed rule is based on Oregon's proposal. 
When Oregon finally adopts revisions to its water quality standards, 
Oregon is required to submit them to EPA for review. As part of its 
review of Oregon's new or revised water quality standards as contained 
in State regulation, EPA will also consider Oregon's implementation 
methods that are not in State regulation, as information that is 
relevant to understanding what the regulatory revisions mean in 
practice. The final judgment dated August 13, 2003, requires EPA by 
March 2, 2004, to either promulgate final regulations regarding methods 
for implementing Oregon's existing antidegradation policy or to approve 
Oregon's submission. Thus, EPA may approve Oregon's antidegradation 
methods even if they are not the same as this proposal, as long as they 
are consistent with the CWA. EPA will consider what is contained in the 
Directive as part of determining whether Oregon's implementation 
methods comport with the CWA.
    Tier 1: EPA is proposing that, to implement Tier 1, any lowering of 
water quality in any water body must protect existing uses. Oregon's 
existing regulation currently contains provisions to protect existing 
uses. See e.g., 340-041-0004(1) Purpose; 340-041-0004(8)(c) High 
quality waters; and 340-041-0004(10), which refers in turn to 3401-041-
0004(12)(a)(C). Due to the court's order, EPA is proposing, consistent 
with Oregon's Regulations and Directive (page 12 flow chart) that in 
all waters, including those that are not high quality, the existing use 
must be protected. For example, even in a water body that is impaired, 
if it continues to support a limited aquatic life use or the water 
quality supported an aquatic life use since November 28, 1975, prior to 
any authorization that requires compliance with water quality 
standards, the level of water quality necessary to protect that 
``existing use'' must be maintained and protected. 40 CFR 131.3(e); 
131.12(a)(1).
    Tier 2: The purpose of EPA's antidegradation regulations with 
regard to high quality waters, 40 CFR 131.12(a)(2), is to ensure that 
assimilative capacity in the waterbody is not used up without a public 
process to determine that lowering water quality is necessary to 
accommodate important social or economic development. EPA's regulation 
applicable to high quality waters contains terms that provide States, 
and Territories and authorized Tribes with significant discretion to 
determine what is a high quality water, what constitutes a ``lowering'' 
of water quality that would trigger a Tier 2 antidegradation review, 
and what constitutes a determination that the ``lowering'' is necessary 
to accommodate important social or economic development. Thus, in 
identifying methods for implementing antidegradation policies, EPA 
would like States and authorized Tribes to explain how they intend to 
implement these three aspects of the regulation.
    Oregon's definition of high quality waters in its existing 
antidegradation policy tracks EPA's regulation precisely at 40 CFR 
131.12(a)(2). Regarding an implementation method for this regulation, 
EPA proposes to follow Oregon's approach in defining a high quality 
water as one that has water quality that meets or is better than all 
water quality standards. In other words, a high quality water is one 
that is not a water quality-limited water. Directive at 21.
    EPA recognizes that Oregon's approach reflects a waterbody-by-
waterbody approach to antidegradation rather than a parameter-by-
parameter approach. In EPA's ANPRM, July 7, 1998, EPA discussed the 
advantages and disadvantages to both approaches to designating high 
quality waters. 63 FR 36782, 36783. EPA also discussed these issues in 
the preamble to its proposed rule regarding antidegradation 
implementation procedures for Kentucky. 67 FR 68971, 67798-99 November 
14, 2002. EPA interprets the regulation to authorize either approach. 
Although arguably a parameter-by-parameter approach may capture more

[[Page 58777]]

waters as Tier 2 waters, EPA notes that Oregon includes waters that 
``meet'' all water quality standards as Tier 2 waters, rather than 
using the term ``exceed'' in the regulation to exclude from Tier 2 
review those waters that precisely meet water quality standards. Under 
Oregon's approach, which EPA follows here, all waters are captured 
within the State's water quality management system. Impaired waters are 
addressed through the TMDL provisions of CWA section 303(d) and those 
that are not impaired are not lowered absent a public process to 
determine that such lowering is necessary to accommodate important 
social or economic development. Further, Oregon's approach has the 
advantage of relying on pre-existing assessment decisions rather than 
requiring additional assessment of the waterbody to determine if it is 
a Tier 2 water.
    Regarding what constitutes a ``lowering'' that triggers Tier 2 
review, in today's proposed rule, EPA proposes a rule tracking Oregon's 
proposed amendment to its antidegradation regulations that allows for 
certain de minimis loadings not to constitute a ``lowering'' of water 
quality that triggers Tier 2 antidegradation review. EPA has long 
interpreted the antidegradation policy to allow a determination that 
certain discharges have an insignificant impact on water quality and 
therefore may not require an antidegradation review. See EPA's proposed 
rule regarding Kentucky's antidegradation implementation methods, 67 FR 
68791, November 14, 2002. See also ``Proposed Water Quality Guidance 
for the Great Lakes System,'' (GLI) 58 FR 20802, April 16, 1993; and 
``Supplementary Information Document for the Final Great Lakes 
Guidance,'' Chapter VII at 203-225, 207-210 included in the record for 
this rule.
    Specifically, EPA proposes that pollutant concentration increases 
are not considered lowering of water quality if there is no overall 
increase in the total mass load of the pollutant on at least an annual 
basis. Also, a de minimis change in temperature that does not reduce or 
degrade water quality of the State is not required to undergo Tier 2 
review. EPA tracks Oregon's definition of de minimis to mean a seven-
day average maximum stream temperature increase or decrease of 
0.30[deg]C/0.54[deg]F or less across the watershed.
    Third, regarding what constitutes a finding that a lowering is 
necessary to accommodate important social or economic development, EPA 
tracks the main components of Oregon's proposed antidegradation 
regulations and the main principles contained in Oregon's Directive, 
that the discharger/applicant provide the State with enough information 
to allow for a financial impact analysis that assesses whether allowing 
important economic and social development justifies lowering water 
quality. EPA is aware that Oregon has included in its proposed 
amendments much more detail of how this assessment would be done 
through a reference to certain parts of its Directive; however, EPA is 
not proposing that those specifics be contained in EPA's proposed rule. 
EPA believes that including this degree of specificity in a Federal 
rulemaking is not required by the regulations at 40 CFR 131.12(a)(2) 
nor is it in the public interest because once codified, a subsequent 
Federal rulemaking would be necessary to allow the State to deviate 
from the Federal rule, and EPA does not wish to constrain a State's 
discretion to this degree. EPA intends to consider the specifics of the 
Directive, incorporated into the State regulation, when EPA acts on the 
State's final revised water quality standards regulations submitted to 
EPA.
    Tier 3: EPA proposes to track Oregon's proposed water quality 
standards regulation regarding Tier 3 implementation for Outstanding 
Resource Waters (ORWs). (In today's proposed rule, EPA uses the term 
Outstanding Resource Water or ORW to be consistent with the State of 
Oregon's terminology in its existing regulation.) EPA's proposed rule 
describes the process the State would follow in designating high 
quality waterbodies to be classified as ORWs in order to protect the 
water quality parameters that affect ecological integrity of critical 
habitat or special water quality values that are vital to the unique 
character of those waterbodies.

F. Effect of This Proposed Rule on the State's Water Quality Programs

    EPA's approach in this rulemaking does not undermine the State's 
primary role in designating uses, establishing protective criteria, and 
ensuring the protection of high quality waters in Oregon. EPA prefers 
that States establish their own regulations. If the standards are 
adopted by the State for specific waters and approved by EPA before 
final promulgation of the Federal standards, EPA will not proceed with 
the final promulgation and the State standards will take effect for CWA 
purposes.
    Water quality standards are implemented through such mechanisms as 
NPDES permits. The State has flexibility in how it implements these 
water quality standards. EPA has included a variance provision in 
today's proposed rule, 40 CFR 131.39(h), authorizing the Regional 
Administrator to grant variances based upon a permittee's 
demonstration, consistent with the Federal regulations, that the use is 
not attainable. Variances are particularly suitable for instances where 
the cause of nonattainment is discharger-specific and it appears that 
the designated use in question will eventually be attainable or be 
demonstrated to be unattainable. For example, a permitted entity may 
have a long-term plan (e.g., 20 or 30 years) in place that will result 
in the eventual attainment of water quality standards; however, in the 
intervening years attaining water quality standards may not be 
possible. In this circumstance, the entity may wish to seek a water 
quality standards variance. See Section V.C. In addition, the State 
will use these water quality standards, if finalized, in identifying 
impaired waters and establishing TMDLs. Where the State identifies 
waters subject to this rulemaking as impaired, the State has discretion 
in scheduling the water for TMDL development. Further discussion is 
contained in section V.F.

IV. Economic Analysis

    These standards may serve as a basis for development of NPDES 
permit limits. In Oregon, the State is the NPDES permitting authority 
and retains considerable discretion in implementing standards. EPA 
prepared a preliminary analysis to evaluate potential costs to NPDES 
dischargers in Oregon associated with future State implementation of 
EPA's Federal standards.
    Any NPDES-permitted facility that discharges to water bodies 
affected by this proposed rule could potentially incur costs to comply 
with the rule's provisions. The types of affected facilities may 
include industrial facilities and publicly owned treatment works 
(POTWs). EPA did not consider the potential costs for nonpoint sources, 
such as agricultural and forestry-related nonpoint sources because the 
CWA does not regulate nonpoint sources. EPA does, however, recognize 
that the State may decide to require controls under State law for 
nonpoint sources to achieve water quality standards. As a technical 
matter, nonpoint source discharges are difficult to model and evaluate 
for potential costs because they are intermittent, highly variable, and 
occur under different hydrologic or climatic conditions than continuous 
discharges from industrial and municipal facilities, which are 
evaluated under critical low flow or drought conditions. Thus, the 
evaluation of nonpoint sources and their

[[Page 58778]]

effects on the environment is highly site-specific and data sensitive. 
In addition, EPA did not quantify the potential benefits of this 
proposed rule for Oregon.

A. Identifying Affected Facilities

    According to EPA's Permit Compliance System (PCS), there are 1,447 
NPDES-permitted facilities in Oregon. Seventy-six of the facilities are 
classified as major dischargers, and 1,371 are minor or general permit 
dischargers. However, EPA did not include general permit facilities in 
its analysis because data for such facilities are extremely limited, 
flows are usually negligible, and EPA could not determine if any of 
these facilities discharge to affected stream segments because location 
information is not available in EPA's PCS database. Therefore, EPA's 
analysis includes a universe of 382 permitted facilities (76 major and 
306 minor).
    To identify facilities potentially affected by the proposed rule, 
EPA assumed that only facilities that discharge to rivers and streams 
with new or more stringent uses and criteria may be affected by the 
water quality criteria and designated uses provisions. (EPA also 
assumed that facilities discharging directly to the Columbia River and 
the Pacific Ocean are not affected by the proposed rule, except for 
portions of the Columbia River where spawning occurs and the proposed 
IGDO criterion would apply.) For IGDO, the current criterion of 6 mg/L 
is less stringent than the revised IGDO criterion of 8 mg/L. Therefore, 
all waters designated for salmonid spawning are potentially affected by 
the proposed rule, and facilities discharging to these waters are 
included in the set of potentially affected dischargers. EPA identified 
these facilities by overlaying PCS facilities with the waters 
designated for salmonid spawning using geographic information system 
(GIS) software.
    To identify waters for which the rule provides new or more 
stringent uses and temperature criteria, EPA compared criteria and uses 
designated for salmonid spawning and rearing and bull trout protection 
for waters under the proposed rule with those criteria and uses that 
are currently designated by the State of Oregon. The State's current 
temperature criteria for salmonid rearing is 17.8[deg]C/64.0[deg]F, 
with no differentiation for core juvenile rearing. The proposed rule 
establishes a 16[deg]C/61[deg]F temperature criterion for core juvenile 
rearing (and 18[deg]C/64[deg]F otherwise for rearing). Therefore, EPA's 
rule provides a more stringent criterion for waters it designates for 
core juvenile rearing (16[deg]C/61[deg]F), and facilities discharging 
to these waters may be affected. EPA identified these facilities by 
overlaying PCS facilities with the waters designated for core juvenile 
rearing using GIS software.
    For salmonid spawning, the current State criterion (12.8[deg]C/
55.0[deg]F) is slightly more stringent than the proposed criterion of 
13[deg]C/55[deg]F. However, the time period that the criterion applies 
may differ under EPA's proposed rule. Therefore, EPA assumed that any 
waters for which it is designating a salmonid spawning period that is 
earlier or later than currently designated by the State (e.g., current 
designation from October 1 to May 31, versus a proposed designation 
from September 1 to June 30) would be affected because a more stringent 
criterion (i.e., more stringent than the current State salmonid rearing 
criterion of 17.8[deg]C/64.0[deg]F would apply during the extended time 
period. Facilities discharging to these waters may be impacted. EPA 
identified these facilities by overlaying PCS facilities in a GIS map 
with the waters for which an earlier or later salmonid spawning period 
applies under the rule.
    For antidegradation, the State already has an antidegradation 
policy in place. This rule would primarily affect the methods by which 
a review would occur in high quality waters. EPA assumed that 
facilities discharging to streams not listed by the State as impaired 
waters (i.e., not on the 303(d) list) are affected. Although high-
quality waters are not yet identified by the State, the unimpaired 
waters provide a reasonable approximation of high-quality waters 
(although some portion of these will be ORWs and not affected by the 
procedures because no lowering of water quality is allowed for ORWs). 
EPA identified these facilities by overlaying PCS facilities with 
303(d) listed waters designated using GIS software. Table IV-1 
summarizes the potentially affected facilities by provision. The 
dischargers are grouped by discharger type (e.g., major or minor) and 
category (e.g., POTW or industry category). Note that there are some 
facilities affected by more than one provision.

     Table IV-1. Estimated Number of Facilities Potentially Affected by Each Provisions of the Proposed Rule
----------------------------------------------------------------------------------------------------------------
                                                                           Number of facilities
                                                        --------------------------------------------------------
                        Category                                                                Antidegradation
                                                              IGDO \1\       Temperature \2\          \3\
----------------------------------------------------------------------------------------------------------------
Major POTWs............................................                 29                  3                 14
Major Industrial.......................................                 14                  1                  8
Minor Dischargers......................................                149                 44                130
                                                        --------------------
    Total..............................................                192                 48               152
----------------------------------------------------------------------------------------------------------------
\1\ Estimated as facilities discharging to waters designated for salmonid spawning, except for portions of the
  Columbia River where spawning occurs.
\2\ Estimated as facilities discharging to waters designated for core juvenile rearing, or an extended (earlier,
  later, or both) spawning period, under the proposed rule.
\3\ Estimated as facilities discharging to waters not on the State's 303(d) list.

B. Method for Estimating Potential Compliance Costs

    EPA identified a total of 48 facilities (4 major and 44 minor) that 
may be potentially affected by the proposed uses and temperature 
criteria. EPA evaluated all four major facilities and a sample of minor 
facilities from this group for potential cost impacts associated with 
the proposed rule. For these sample facilities, EPA assumed that any 
discharge that results in a downstream temperature greater than 
0.14[deg]C/0.25[deg]F above the applicable criterion would require 
additional controls (current Oregon water quality standards state that 
a discharge may not cause an increase in the surface water temperature 
of greater than 0.14[deg]C/0.25[deg]F in waters exceeding the 
applicable criterion [OAR 340-041-0205 (b)(A)]).
    EPA evaluated the effect of the discharge on the receiving water 
using monthly effluent and receiving water data. When possible, EPA 
calculated the

[[Page 58779]]

average of the maximum 7-day moving averages for each month, or if 
daily temperature data were not available, EPA evaluated the average of 
the maximum monthly values. To determine the effect of the discharge on 
the downstream temperature, EPA calculated the temperature at the edge 
of the regulatory mixing zone (RMZ) assuming that the background stream 
temperature is the applicable criterion when the waterbody currently 
exceeds the criterion. For example, if the receiving water has a 
proposed designated use of core salmonid rearing and currently has a 
maximum temperature of 17[deg]C/62.6[deg]F in August, the effluent 
temperature used in the compliance analysis would be the maximum 
monthly effluent temperature between July and August, and the stream 
temperature would be 16[deg]C/61[deg]F. Otherwise, EPA used the maximum 
receiving water temperature (i.e., average of maximum 7-day moving 
average temperatures, average of maximum monthly temperatures) in those 
situations where the waterbody is currently attaining the criterion. In 
both cases, EPA calculated the dilution ratio from the 7Q10 stream flow 
(minimum 7-day average flow recurring once in 10 years) and the average 
dry weather design flow for the facility. EPA's proposed rule specifies 
that only 25 percent of the 7Q10 flow be used in the dilution 
calculation in waters not currently attaining the applicable 
temperature criterion. In many cases, facilities had already calculated 
dilution ratios through stream modeling (e.g., CORMIX) or mixing zone 
studies. In these cases, if less than 25 percent of the 7Q10 flow was 
used in the model, EPA used the facility-calculated value, otherwise, 
EPA calculated the dilution ratio assuming 25 percent of the stream 
flow is available for dilution.
    EPA estimated the most cost-effective control strategy for each 
facility to achieve compliance. To estimate the potential costs 
associated with the controls, EPA used temperature management plans 
(TMPs) from facilities that have already developed them to determine 
the necessary controls on point sources to reduce effluent 
temperatures. Possible controls include process optimization, pollution 
prevention, land application, and cooling towers. EPA determined costs 
for these controls from readily available documentation and updated 
these sources to 2003 dollars.
    There are no IGDO data available for any of the affected waters, 
primarily because methods to measure IGDO have only recently been 
developed. Therefore, EPA estimated compliance with current and 
proposed IGDO criteria based on an estimated 3.0 mg/L differential 
between the IGDO and dissolved oxygen (DO) in the overlying water. 
Studies cited (Koski, 1965; Hollender, 1981) in EPA's Ambient Water 
Quality Criteria for Dissolved Oxygen (EPA, 1986) indicate that 3.0 mg/
L is a good approximation of the differential between water column DO 
and IGDO. Therefore, EPA believes it is reasonable to assume that a 
water designated for bull trout juvenile rearing and spawning or salmon 
and steelhead spawning though fry emergence that has a water column DO 
concentration of 11.0 mg/L would achieve 8.0 mg/L IGDO. Using this 
differential, the current Oregon IGDO criterion of 6.0 mg/L corresponds 
to a minimum instream DO concentration of 9.0 mg/L. EPA's proposed IGDO 
criterion of 8.0 mg/L corresponds to a minimum instream DO 
concentration of 11.0 mg/L.
    Current Oregon water quality standards specify a minimum water 
column DO for protection of salmonid spawning is 11.0 mg/L, unless the 
minimum IGDO (measured as a spatial median) is 8.0 mg/L, then the 
minimum DO may be 9.0 mg/L. If conditions of barometric pressure, 
altitude, and temperature preclude attainment of 11.0 or 9.0 mg/L 
standards, then the minimum DO may be 95 percent of saturation.
    EPA's rule only changes the IGDO criterion, and not Oregon's 11.0 
mg/L (or 9.0 mg/L) instream DO criteria. Thus, if a stream is meeting 
the current Oregon water quality standards, based on EPA's Ambient 
Water Quality Criteria for Dissolved Oxygen (EPA, 1986), the stream 
would also meet the revised EPA criterion, and no costs would be 
incurred as a result of this part of the rule. If a stream is not 
meeting the current water quality standards, the costs of attaining 
compliance would be associated with existing Oregon water quality 
standards, not as a result of the proposed rule. Therefore, EPA 
estimated the cost of this provision to be zero.
    To develop an estimate of the incremental impact of the 
antidegradation provision of the proposed rule, EPA first estimated the 
number of facilities located on newly designated high-quality waters 
that might request to increase discharges during their permit term. EPA 
assumed that all waters not on the State's 303(d) list are high quality 
waters. EPA estimated that 22 major facilities and 130 minor facilities 
may discharge to high-quality waters. NPDES permits are issued for a 
period of five years, after which they must be renewed. Therefore, on 
average, one-fifth (20 percent) or approximately 30 of the 152 existing 
permit holders will renew their permits each year. Based on the 
frequency of past Oregon antidegradation reviews and EPA's past 
experience in calculating costs for its antidegradation rules for other 
States, EPA assumed that no more than five percent of facilities that 
discharge to high-quality waters would likely request an increase in an 
effluent limit to the extent that an antidegradation review would be 
required when they renew their permit. Given 30 permit renewals per 
year, less than two facilities would require an antidegradation 
analysis each year.
    Next, EPA estimated the costs of preparing an antidegradation 
analysis to justify the need to increase discharges for these 
facilities. Entities seeking an antidegradation review will incur costs 
to develop financial and economic and social impact analyses, and the 
State will incur costs to review the analyses and make a determination. 
EPA assumed that the cost incurred by facilities in complying with the 
rule is the cost of a preliminary engineering analysis, and the 
subsequent financial analysis for which EPA provides guidance and a 
workbook. To estimate the potential analytical costs, EPA first 
calculated the average capital costs to facilities it identified as 
requiring additional controls in economic analyses prepared for recent 
water quality standards actions, including establishing criteria for 
toxic pollutants and upgrading receiving water use classifications in 
the States of Alabama, Iowa, California, and Idaho (U.S. EPA, 2001a; 
2001b; 1999; and 1997). EPA's estimates of capital costs for these 
facilities average $1 million for major POTWs, $230,000 for minor 
POTWs, $2.4 million for major industrial facilities, and $1 million for 
minor industrial facilities. Thus, preliminary engineering analysis and 
financial analysis costs could range between $10,000 and $72,000 for 
major facilities, and between $2,300 and $30,000 for minor facilities 
(see Table IV-2). EPA did not estimate costs for installing additional 
control measures or limiting increased discharges because EPA would 
have to speculate on the multiple unknown factors including the type of 
facility, the pollutants being discharged, the water body in question, 
the requested increase in discharge, the control technologies currently 
being implemented, the alternative control technlogies considered, and 
the State's decision following review of the antidegradation analyses.

[[Page 58780]]



                    Table IV-2. Estimated Cost per Facility to Prepare Antidegradation Review
----------------------------------------------------------------------------------------------------------------
                                          Municipal facilities (POTWs)              Industrial facilities
                Cost                 ---------------------------------------------------------------------------
                                            Major              Minor              Major              Minor
----------------------------------------------------------------------------------------------------------------
Installed Controls \1\..............         $1,000,000           $230,000         $2,400,000         $1,000,000
Low Estimate of Review Cost \2\--(1%             10,000              2,300             24,000             10,000
 of Installed Capital Cost).........
High Estimate of Review Cost \2\--               30,000              6,900             72,000            30,000
 (3% of Installed Capital Cost).....
----------------------------------------------------------------------------------------------------------------
\1\ Average capital costs to facilities that EPA identified as requiring additional pollution controls in
  analyses of recent water quality standards actions, including establishing criteria for toxic pollutants and
  upgrading receiving water use classifications, in the States of Alabama, Iowa, California, and Idaho (U.S.
  EPA, 2001a; 2001b; 1999; 1997).
\2\ Use of 1 and 3 percent of Installed Capital Cost based on EPA's best professional judgment.

    Costs for the proposed antidegradation provision will include the 
cost of the State review. EPA assumed that the State's review of the 
engineering cost analysis and financial impact analysis could require 
up to 24 hours, and that the notification and response to comments 
activities will require an average of 100 hours. Thus, based on a 
national average hourly compensation rate of $42.24 for State and local 
government workers in professional speciality and technical 
occupations, the average cost per review is $5,200.

C. Results

    EPA estimated the potential costs associated with the temperature, 
IGDO, and antidegradation provisions of the proposed rule separately. 
For the temperature provision, there are 48 potentially affected 
facilities. EPA estimated costs for all affected major facilities 
individually, and estimated costs for affected minor facilities by 
extrapolating costs from a sample. EPA estimated that the potential 
total Statewide annual cost associated with proposed temperature 
criteria will be approximately $198,900.
    EPA estimated that the potential cost associated with the proposed 
IGDO criterion is zero. This estimate is based on compliance with 
current State standards.
    For the antidegradation provision, EPA estimated that the potential 
annual costs range from $22,500 to $50,900. This estimate is based on 
combined entity and State costs for two antidegradation reviews per 
year.

D. Total Statewide Costs Associated with NPDES Permitted Entities

    The following table summarizes the total estimated potential 
Statewide costs of today's proposed rule associated with NPDES 
permitted entities.

 Table IV-3. Total Estimated Annual Statewide Costs Attributable to the
                        Proposed Rule ($2003/yr)
------------------------------------------------------------------------
                                                       Estimated annual
                      Provision                            cost \1\
------------------------------------------------------------------------
Temperature Uses and Criteria.......................            $198,900
IGDO Criteria.......................................                  $0
Antidegradation Procedures..........................      $22,500-50,900
    Total...........................................   $221,400-249,800
------------------------------------------------------------------------
\1\ Costs are annualized at 7 percent over 20 years.

    EPA recognizes that the potential indirect costs to nonpoint 
sources associated with the State's implementation of these proposed 
water quality standards may be higher than the costs EPA has estimated 
since temperature exceedences on the affected water bodies could also 
result from nonpoint source activities. Major categories of sources 
that may be affected by the State's implementation of this proposed 
rule include forestry and agriculture, as well as dams. EPA has not 
quantified these costs.

E. Small Government and Business Analysis

    Today's proposed rule establishes no requirements applicable to 
small entities, and so is not susceptible to regulatory flexibility 
analysis as prescribed by the Regulatory Flexibility Act. EPA has 
nonetheless considered the potential effects of this rule on small 
entities to the extent that it can, and has included that analysis in 
the administrative record of this rulemaking. EPA evaluated the 
potential economic impacts for the facilities that discharge to waters 
of the State of Oregon and used this information to develop the cost 
estimate for the proposed rule. EPA estimates that, depending on 
Oregon's implementation, as many as 128 small municipal entities and 85 
business entities could be affected by one or more provisions of the 
proposed rule. Data are not available to determine if those 85 
businesses potentially affected by the proposed rule would be 
classified as small, or what percent of revenues the estimated costs 
would represent. Nonetheless, EPA's analysis indicates that, depending 
on Oregon's implementation, only 29 small municipal entities and 13 
business entities could incur costs under the temperature provision, 
and only 1 to 2 small municipal or business entities could incur 
antidegradation costs in an average year.
    EPA calculated the ratio of potential compliance costs to estimated 
revenues for the small municipalities using the annualized facility-
specific cost estimates described above, actual municipal revenues for 
facilities potentially affected by the temperature provision, and 
estimates of annual municipal revenues for facilities affected by other 
provisions. The estimates are based on 2002 municipal population data 
and a mean per capita municipal revenue estimate of $860 that EPA 
derived from the municipalities potentially affected by the temperature 
provision.
    Based on its estimated costs of the proposed rule, and possible 
Oregon implementation, EPA observed that three small municipal entities 
could incur costs that equal or exceed 1 percent of revenues. For two 
of these entities, costs may equal or exceed 3 percent of revenues (the 
ratios are 4.5 percent and 8.3 percent).

V. Alternative Regulatory Approaches and Implementation Mechanisms

A. Background

    Data and information may become available after the date of this 
rulemaking that will be material to water quality standards for Oregon. 
There are several mechanisms available to ensure that the water quality 
standards and their implementing mechanisms appropriately take into 
account such new information. These

[[Page 58781]]

mechanisms are described in sections B through E below.
    The State should be aware, however, that EPA considers designated 
use changes and site-specific criteria to be modifications to the 
State's water quality standards. Federal regulations at 40 CFR 
122.44(d)(1) require that NPDES permits include limitations necessary 
to achieve water quality standards adopted under section 303 of the 
CWA. Therefore, a designated use change or a site-specific criterion 
cannot be the basis for NPDES permit limitations until the State has 
adopted it as part of its water quality standards, has submitted it to 
EPA, and EPA has approved it. See 40 CFR 131.21(c) and (d). EPA would 
also need to withdraw any corresponding Federal use designation or 
criteria. As with any other revision to the State's water quality 
standards, EPA will review these revisions to determine whether they 
are scientifically-defensible in accordance with 40 CFR 
131.11(b)(1)(iii), or meet the requirements of 40 CFR 131.10(g), as 
applicable. EPA will also consider whether the appropriate procedural 
requirements have been met, such as public participation and 
certification by the appropriate legal authority within the State.
    While 40 CFR 131.13 allows States to adopt variances for State-
adopted water quality standards, States do not have authority to change 
Federal regulations. Thus, State procedures may not be used to modify 
Federally-promulgated water quality standards. Consequently, EPA has 
included in today's proposed rule a Federal variance provision allowing 
the Region 10 Administrator to grant water quality standards variances 
where a person submits data indicating that an EPA-designated use is 
not attainable for any of the reasons in 40 CFR 131.10(g). This process 
is discussed in greater detail in section V.C.

B. Process for Federal Agencies Responsible for Federally Owned or 
Operated Dams To Request EPA Modify Water Quality Standards

    The process EPA used to propose designations for the salmonid uses 
and setting the numeric criteria described above utilized the best 
scientifically credible data available to date on the water quality 
requirements of various life stages of salmonids. However, this data 
did not include the type of data that is generally considered in a 
waterbody-specific use attainability analysis. EPA recognizes that new 
and/or more accurate data may become available that would support 
changes to the standards on a particular water body, including data and 
information regarding the attainability of EPA's proposed use 
designations for specific waters. In the course of developing this 
proposal, EPA was approached by several Federal agencies that own or 
operate Federal dams with questions about the information requirements 
and the process for incorporating data on use attainability into the 
process for determining designated uses proposed by EPA in this rule. 
Specifically, these agencies indicated that they may submit information 
involving Federal dams during the public comment period for this rule 
or after promulgation. Also, they sought to better understand the 
information needs and process EPA would follow in considering a change 
in a designated use for water bodies in Oregon where Federal dams are 
operating.
    During the public comment period, EPA will review and consider the 
information and the need for changes in the standards prior to 
promulgation. EPA recognizes that the existence of Federally-owned or 
operated dams in a watershed may alter the thermal regime of the 
associated stream system, and that even after all feasible and 
practicable measures to reduce thermal impacts are implemented, in some 
cases, attainment of certain water quality standards for temperature 
may not be feasible. Water quality standards should be feasibly 
attainable given the existence and operation of these Federally owned 
or operated dams. Feasibility should include consideration of whether 
there are reasonable alternative operations, structural modifications, 
or maintenance approaches a Federally-owned or operated dam could 
implement and still fulfill its authorized purpose. In order to be 
responsive to the questions raised about how EPA would handle such 
information after the close of the comment period and after 
promulgation, EPA is proposing in this rule EPA's preferred process for 
Federal agencies that own or operate dams to petition EPA to revise 
standards for water bodies covered by this rule.
    EPA is mindful that the time constraints under which EPA must take 
final action on WQS by March 2, 2004, will, no doubt, limit the 
opportunities for Federal agencies which own or operate dams to develop 
and provide information to EPA and for EPA to fully consider any such 
information prior to the deadline for taking final action. Ideally, 
such information would be considered up-front in designating uses and 
establishing water quality criteria. In reality, precise information 
may not be available in advance because of lack of data on natural 
variability, varying weather and flow conditions and the difficulty in 
predicting the impacts on water quality of feasible management 
measures. Therefore, EPA is proposing to establish within the rule a 
process by which Federal agencies that own or operate dams may present 
information regarding the effect of the presence and operation of 
specific dams on the attainability of uses that EPA promulgates for 
specific waters, and petition EPA to amend standards if EPA, in 
coordination with the regulated agency, determines the uses are not 
attainable.
    EPA is including this provision for those Federally-owned or 
operated dams because EPA believes it is important to ensure that 
designated uses properly account for the presence of dams, whose 
purposes include, but are not limited to, flood control, irrigation, 
navigation, and power generation that Congress has specifically 
authorized. EPA wants to ensure that the use designations that it 
adopts under the CWA for waters in Oregon fully consider any available 
information regarding the effects of dams that have been specifically 
authorized by Congress to be constructed and operated on those same 
waters. A clear process in the rule for these Congressionally-
authorized dams will allow EPA to address expeditiously a request from 
another Federal agency regarding modification of a promulgated use 
designation based on the effects of the presence and operation of a 
particular dam.
    EPA's current WQS regulations at 40 CFR 131.10(g) list six factors 
that may be used as a basis for removing a designated use that is not 
an existing use if it can be demonstrated that attaining the designated 
use is not feasible because of one of those six factors. One of those 
factors specifically relates to dams. 40 CFR 131.10(g)(4) provides that 
a designated use may be removed if ``dams * * * preclude the attainment 
of the use, and it is not feasible to restore the water body to its 
original condition or to operate [the dam] in a way that would result 
in attainment of the use.'' EPA believes that it is important to 
establish a process in this regulation to clarify how a Federal agency 
that owns or operates a Federal dam may present information to EPA if 
the Federal agency believes that a standard promulgated as a result of 
this rulemaking is not attainable due to the presence and operation of 
a Congressionally-authorized dam and it is not feasible to operate the 
dam in a way that would result in attainment of the use.

[[Page 58782]]

    It should be noted that EPA's current regulations also provide that 
at a minimum uses are deemed attainable if they can be achieved by the 
application of technology-based effluent limitations on point source 
dischargers required under CWA section 301(b) and 306 and cost-
effective and reasonable best management practices for nonpoint source 
control. 40 CFR 131.10(d) and (h). Pursuant to this regulation, EPA 
would take into consideration the controls being implemented by other 
sources on a specific waterbody or segment in determining the 
attainability of any use.
Federal Agency Submission to EPA
    In proposed 40 CFR 131.39(g), EPA provides a process by which a 
Federal agency responsible for a Federally-owned or operated dam may 
petition EPA to revise a water quality standard.
Federal Agency Documentation
    First, proposed 40 CFR 131.39(g)(1) provides that the petition must 
be based on a demonstration that the operation of the dam precludes the 
attainment of the use, that reasonable alternatives are not feasible to 
restore the water to its original condition, and, that there are no 
feasible and practicable changes to the operation, maintenance or 
structure of the dam, consistent with the purposes for which it was 
authorized by Congress, that can be implemented that would result in 
attainment of the water's designated use. This language approximates 
the language in EPA's current regulation at 40 CFR 131.10(g)(4). As 
discussed below, in response to a petition, EPA will conduct a use 
attainability analysis (UAA) and determine whether the promulgated use 
is attainable. The information provided by the Federal agency with the 
petition will be critical to EPA's decision.
    EPA expects that this demonstration would include a description of 
the current function and purpose of the dam (and how well the dam is 
performing its intended function). Further, EPA expects that this 
demonstration will include a discussion of potential changes in 
operation or maintenance of the dam and potential structural 
modifications, accompanied by results of trial runs where practicable, 
an engineering analysis, and results of modeling. EPA also expects that 
the demonstration would show how much improvement towards attainment of 
the standard could be expected from feasible and practicable 
alterations. This information would be relevant to EPA should it decide 
to revise the standard. Federal agencies that own or operate dams in 
Oregon must provide EPA with the following information as specified in 
today's proposed rule at 40 CFR 131.39(g)(2):
    (1) The current purpose and function of the dam including 
information on how well the dam is performing in meeting the 
established purpose and function;
    (2) Any feasible, practicable alternatives to current operation and 
maintenance of the dam that could improve water quality, including 
coordination of operations between dams;
    (3) Any feasible, practicable structural modifications to the dam 
that could improve water quality; and
    (4) Any relevant studies of the above factors.
    In addition, Federal agencies that own or operate dams in Oregon 
are encouraged to consider and submit any results from the following 
analyses to expedite EPA's use attainability determination:
    [sbull] With regard to the analysis of any feasible, practicable 
alternatives to current operation and maintenance of the dam
    [sbull] Have alternative methods of operating turbines been 
utilized or explored to encourage better mixing where there is a 
horizontally- or vertically-stratified forebay?
    [sbull] Have modifications to flood control rule curves been used 
or explored to allow additional flows in the summer months without 
impacting refill?
    [sbull] Have modifications to upper reservoir refill probabilities 
been used or explored to allow additional flows in the summer months?
    [sbull] Have reductions in the cross-section areas of the water 
columns behind the dams been utilized or explored? [Such reductions 
could, in turn, reduce the resident time for water particles, which 
reduces exposure times and surface area, which also reduces exposure 
history. This is related to increasing velocity, which can be done 
either by increasing flows, or decreasing area. Q(flow) = V(velocity) x 
A(area)]
    [sbull] With regard to the analysis of any feasible, practicable 
structural modifications to the dam, have low level outlet controls 
been used or explored to allow selective withdrawals resulting in 
temperature improvements in the waterbody?
Federal Agency Public Process
    Second, proposed 40 CFR 131.39(g)(1)(iii) provides that the 
responsible Federal agency provide an opportunity for the affected 
jurisdictions and public to comment on a draft of the agency's 
demonstration and to submit any additional information or analyses 
(e.g., analyses of how trading could improve water quality) before it 
is submitted to EPA. EPA expects that the Federal agency would take 
these comments into consideration in preparing a final demonstration 
that it will submit to EPA in support of its petition to revise one or 
more water quality standards. The proposed rule would also require that 
the Federal agency submit to EPA the Federal agency's response to the 
comments that the agency received during its public comment process.
EPA's Process for Responding to Petitions
    Once the complete petition is submitted to EPA, 40 CFR 131.39(g)(3) 
of the proposed rule would provide that EPA will conduct a UAA, 
determine if a change in water quality standards is appropriate, and 
respond to the petitioning agency within nine months. In making such a 
determination, EPA will carefully consider all of the information 
provided by the Federal agency and any comments by the affected 
jurisdictions and public. 40 CFR 131.39(g)(4) would provide that if EPA 
determines after developing a UAA that the promulgated standards should 
be revised, EPA will propose to amend the promulgated standards through 
a Federal rulemaking and take final action within 15 months. EPA may 
also extend either of these deadlines if a large number of petitions 
are received during this time. If EPA determines that the standards do 
not need to be revised, proposed 40 CFR 131.39(g)(5) provides that EPA 
will respond to the petition by providing its reasons for not proposing 
to revise the standards.
    If EPA determines that a use revision is appropriate and the use 
revision may affect threatened or endangered species, EPA would need to 
consult with NOAA Fisheries and/or FWS under section 7 of the ESA. EPA 
is consulting with the Services regarding the promulgation of today's 
rule. EPA also consults with affected Tribes if designating a use that 
requires less stringent criteria.
    Federal agencies that own or operate dams have also expressed 
concern over the status and potential legal vulnerability of dams 
during the period that EPA is considering a petition submitted under 
this provision. EPA requests comment on how it might address this 
concern in the rule.
Availability of the Petition Process to Entities Besides Federally-
Owned or Operated Dams
    Of course, any person may petition EPA to revise a water quality 
standard that EPA promulgates. Any of the six

[[Page 58783]]

factors at 40 CFR 131.10(g) may serve as the basis for removing a 
designated use as long as it is demonstrated that it is not feasible to 
attain the use. As discussed above, EPA is proposing to include 
specific provisions in this rule related to the condition regarding 
dams in 40 CFR 131.10(g)(4) to address Federally-owned or operated dams 
in recognition of the specific congressional authorization for the 
construction and operation of such dams. It was recognized that the 
tight deadlines under which EPA must propose and promulgate water 
quality standards for temperature in Oregon waters may not provide 
adequate time for the other Federal agencies to gather information 
related to the possible effects of Federally-owned or operated dams on 
the attainability of EPA's water quality standards or for EPA to fully 
evaluate any information that may be generated. Therefore, EPA is 
proposing to set out a process, as previously described, by which the 
submission of such information by another Federal agency and 
consideration by EPA would take place.

C. Variances

    Water quality standards variances are a mechanism that can 
temporarily modify water quality standards. Today's rule contains a 
Federal variance procedure for the designated uses being proposed 
today. However, the procedures described later in this section can also 
be used by the State to develop variances for State-adopted water 
quality standards.
    EPA believes variances are particularly suitable when the cause of 
nonattainment is discharger-specific and it appears that the designated 
use in question will eventually be attained or demonstrated to be 
nonattainable. EPA has approved the granting of water quality standards 
variances to NPDES permitted entities by States in circumstances that 
would otherwise justify changing a use designation on the grounds of 
unattainability (i.e., one or more of the six circumstances contained 
in 40 CFR 131.10(g) is met). In contrast to a change in standards that 
removes a use designation for a water body, a water quality standards 
variance applies only to the NPDES permitted discharger to whom it is 
granted and only to the pollutant parameter(s) upon which the finding 
of unattainability is based, and only for a limited period of time. The 
underlying standard remains in effect for all other CWA purposes.
    The practical effect of such a variance is to allow an NPDES permit 
to be written using less stringent criteria, while encouraging ultimate 
attainment of the underlying standard. A water quality standards 
variance provides a mechanism for assuring compliance with sections 
301(b)(1)(C) and 402(a)(1) of the CWA, while granting temporary relief 
to point source dischargers.
    While 40 CFR 131.13 allows States to adopt variance procedures for 
State-adopted water quality standards, because States cannot amend 
Federal law, such State procedures may not be used to grant variances 
for Federally-adopted standards. EPA believes that it is appropriate to 
provide comparable Federal procedures here. Through today's proposed 
rule, the Region 10 Regional Administrator may grant water quality 
standards variances where a person submits data indicating that an EPA-
designated use proposed at 40 CFR 131.39(b) is not attainable for any 
of the reasons at 40 CFR 131.10(g).
    Today's proposed rule spells out the process for applying for and 
granting such variances. Authorizing the Regional Administrator to 
grant variances should expedite the processing of variance requests. 
That process is contained in proposed 40 CFR 131.39(h) of today's rule. 
EPA also proposes that the Regional Administrator provide public notice 
of the proposed variance and provide an opportunity for public comment. 
EPA understands that variance-related issues can often arise in the 
context of permit issuance. EPA Region 10 will seek to work closely 
with the State permitting authorities to ensure that variance requests 
will be considered in tandem with the State NPDES permitting process.
    The variance procedures proposed today requires an applicant for a 
water quality standards variance to submit a request to the Regional 
Administrator (or his/her delegatee) with supporting information. Under 
this rule, as in the national program, the burden is on the applicant 
to demonstrate to EPA's satisfaction that the designated use is 
unattainable for one of the reasons specified in 40 CFR 131.10(g). EPA 
believes that because a variance results in a temporary change to the 
designated use, the demonstrations needed to justify a variance should 
be analogous to those needed to justify removing the use entirely. A 
variance may not be granted if the use can be attained, at a minimum, 
by all dischargers implementing effluent limitations required under 
sections 301(b) and 306 of the CWA and the nonpoint sources 
implementing reasonable best management practices for nonpoint source 
control as required by the State. In addition, a variance may not be 
granted if it would likely jeopardize the continued existence of any 
threatened or endangered species listed under section 4 of the ESA or 
result in the destruction or adverse modification of such species' 
critical habitat.
    Under this rule, a variance may not exceed three years or the term 
of the NPDES permit, whichever is less. A variance may be renewed if 
the permittee again demonstrates that the use in question is still not 
attainable. Renewal of the variance may be denied if EPA finds that the 
conditions of 40 CFR 131.10(g) are not met.

D. Heat Load and Thermal Plume Provisions

1. Heat Load Limit
    Questions often arise regarding how to interpret water quality 
standards when implementing the standards under the CWA. EPA believes 
that with respect to this proposed rule, questions may arise during 
NPDES permitting or TMDL establishment as to whether the water quality 
temperature criteria proposed here would be attained in impaired waters 
by authorizing effluent limitations or establishing waste load 
allocations or load allocations that allow an insignificant addition of 
heat to impaired waters. In today's proposal, EPA is including a 
provision that would allow for insignificant additions of heat by 
anthropogenic sources to water bodies or segments that exceed the 
applicable temperature criterion. While this provision is not a water 
quality standard under CWA section 303(c), this provision will assist 
regulatory authorities in carrying out their responsibilities under 
sections 303(d) and 402 of the CWA. Specifically, EPA proposes that the 
addition of heat from anthropogenic sources will be determined to be 
insignificant if all such additions cumulatively, at the point of 
maximum impact, cause an instream temperature increase of 0.3[deg]C/
0.5[deg]F or less above the otherwise applicable criterion. In 
addition, no single point source may cause, by itself, an instream 
temperature increase of 0.3[deg]C/0.5[deg]F or more above the otherwise 
applicable criterion assuming complete mixing with 25 percent of the 
river flow.
    There are several approaches that the State may take to assure that 
these conditions are met. For example, to calculate the impact of 
single sources, the State may use a simple energy balance equation to 
calculate a point source effluent limitation that would meet the heat 
load limit, assuming the upstream temperature is at the otherwise 
applicable criterion, and calculating an end-of-pipe effluent limit 
that would result in an 0.3[deg]C/0.5[deg]F

[[Page 58784]]

increase above the applicable criterion after complete mixing of the 
effluent with 25 percent of the river flow. To calculate the impact of 
multiple sources, the State may conduct a modeling evaluation.
    EPA believes that this provision will continue to protect the uses 
proposed to be designated by this rule. Allowing sources to no more 
than an increase of 0.3[deg]C/0.5[deg]F is not significant in view of 
the accuracy of temperature measurement instruments and the variability 
of monitoring field protocol techniques. (``Water Quality Monitoring 
Technical Guide Book,'' Oregon Plan for Salmon and Watersheds, July 
1999, pp 6-3; ``Monitoring Guidelines to Evaluate Effects of Forestry 
Activities on Streams in the Pacific Northwest and Alaska,'' EPA/910/9-
91-001, May 1991. pp 73-76). Furthermore, the scientific studies 
assessing the effects of temperature on salmon species which form the 
basis for the Regional Temperature Guidance and this rulemaking, are at 
a level of resolution of 1[deg]C/2[deg]F (or more). For the previously 
stated reasons, allowing an increase of 0.3[deg]C/0.5[deg]F will 
protect the uses proposed in this rule.
    Even though EPA believes this incremental heating of 0.3[deg]C/
0.5[deg]F or less above the otherwise applicable criterion will have no 
adverse effect on the designated uses, even in impaired waters, such 
incremental heating would not be allowed by the water quality standards 
without this provision. EPA believes, however, that it is important for 
the water quality standards to allow such insignificant heat additions, 
as long as they meet the thermal plume provisions in proposed 40 CFR 
131.39(e)(2), because of their insignificant adverse effect on the 
designated uses, and the adverse economic and/or environmental impacts 
of either prohibiting such discharges or requiring that they be cooled 
prior to discharge.
2. Thermal Plume
    EPA's regulation at 40 CFR 131.13 recognizes that States have the 
discretion to adopt regulations authorizing mixing zones around point 
source outfalls, which are limited zones in which otherwise applicable 
criteria may be exceeded, subject to conditions that assure the 
protection of the designated use in the waterbody as a whole. In the 
case of temperature, areas surrounding point source outfalls could 
experience ``thermal plumes'' in which water temperatures exceed the 
otherwise applicable temperature criteria. In this rule, EPA proposes 
conditions on such thermal plumes to protect the designated uses by 
preventing instantaneous lethality, thermal shock, migration blockage, 
or adverse impact to salmon and trout spawning areas in order to 
protect the designated uses proposed in this rule.
    EPA is proposing that for any permitted point source discharge of 
heat that the discharge meet the conditions described in proposed 40 
CFR 131.39(e)(2). These provisions describe conditions that must be 
avoided in order to protect salmonids from adverse impacts. As such, 
EPA is proposing that these provisions apply to all NPDES-permitted 
dischargers, regardless of whether the permittee is discharging to a 
water body that is attaining or not attaining its temperature water 
quality criterion. In the former case (i.e., where a water body is 
meeting its water quality standards), these provisions would work in 
conjunction with the State's existing mixing zone policy contained in 
its regulation to govern the calculation of effluent limitations for 
point sources.
    The proposed regulation is designed to ensure that thermal plumes 
from point sources do not cause instantaneous lethal temperatures; 
thermal shock; migration blockage; adverse impact on spawning, egg 
incubation, and fry emergence areas; or the loss of localized cold 
water refugia. Based on the scientific literature's finding that 
certain conditions may cause adverse impacts in salmonids, EPA believes 
these provisions are appropriate to protect these species from 
conditions that may exist due to a point source discharge. The 
following paragraphs summarize the scientific literature and how the 
findings relate to EPA's proposed regulations.
    [sbull] Exposures of less than ten seconds at 32[deg]C/89.6[deg]F 
can cause instantaneous lethality. (Washington Department of Ecology, 
December 2002, ``Evaluating Standards for Protection of Aquatic Life in 
Washington's Surface Water Quality Standards, Temperature Criteria, 
Draft Discussion Paper and Literature Summary,'' pp. 105-108). 
Therefore, EPA has proposed that the maximum temperature within the 
plume after two seconds of travel from the point of discharge does not 
exceed 32[deg]C/90[deg]F.
    [sbull] Thermal shock, which leads to increased predation, can 
occur when salmon and trout exposed to near optimal temperatures (e.g., 
15[deg]C/58[deg]F) experience a sudden temperature increase to 26-
30[deg]C/79-86[deg]F for a short period of time. (Coutant, Charles, 
1973, Effect of thermal shock on vulnerability of juvenile salmonids to 
predation, J. Fish. Res. Board Can. 30(7):965-973.). Therefore, EPA is 
proposing that thermal plumes be conditioned to limit the cross-
sectional area of a river that exceeds 25[deg]C/77[deg]F to five 
percent of the river.
    [sbull] Adult migration blockage conditions can occur at 21[deg]C/
70[deg]F. See Table III-1. Therefore, EPA is proposing that the cross-
sectional area of a river at or above 21[deg]C/70[deg]F be limited to 
less than 25 percent or, if upstream temperature exceeds 21[deg]C/
70[deg]F, the thermal plume be limited such that 75 percent of the 
cross-sectional area of the river has less than a de minimis (e.g., 
0.3[deg]C/[deg]0.5F) temperature increase.
    Adverse impacts on salmon and trout spawning, egg incubation, and 
fry emergence can occur when the temperatures exceed 13[deg]C/55[deg]F. 
See Table III-1. Therefore, EPA is proposing that the thermal plume be 
limited so that temperatures exceeding 13[deg]C/55[deg]F do not occur 
in the vicinity of active spawning and egg incubation areas, or that 
the plume does not cause more than a de minimis increase in the river 
temperature in these areas.
    Determining whether or not a preliminary effluent limitation will 
result in localized impacts from the thermal plume can be achieved 
through plume modeling. The physical characteristics of the thermal 
plume (e.g., a three-dimensional profile of temperatures) can be 
estimated using a near-field dilution model and adequate input data to 
run the model (e.g., river and effluent temperatures and flows). If the 
model indicates that the preliminary effluent limitation is likely to 
result in any of the localized adverse impacts described above, the 
preliminary effluent limit must be lowered to ensure that such impacts 
are avoided or minimized.

E. EPA's Basis for Allowing Flexibility Due to Unusually Warm Weather 
Conditions

    EPA is proposing that a waterbody shall not be determined to be a 
water quality-limited segment for CWA section 303(d) listing purposes 
if the maximum 7DADM temperature for the year with the second highest 
maximum 7DADM from a complete data record of 10 years is at or below 
the applicable criterion. EPA recognizes that historically, there were 
years of drought and unusually high air temperatures. When those 
conditions occurred, water temperatures were also elevated. Further, 
EPA believes it is reasonable for a State or Tribe to decide not to 
apply the numeric temperature criteria during unusually warm conditions 
for purposes of determining if a waterbody is attaining criteria (i.e., 
for the purposes of making decisions under CWA section 303(d) or 
305(b)). EPA believes such a provision is justified because unusually

[[Page 58785]]

warm annual peaks in water temperature typically caused by drought 
conditions are a natural component of the environment and that these 
infrequent conditions should not drive attainment determinations. 
Salmonids may experience some adverse effects during these periods, but 
by definition, they would be infrequent. It is important to note, 
however, that NPDES-permitted facilities would continue to be subject 
to the same temperature effluent limits they would be subject to during 
normal temperature periods, because they should not be able to 
discharge more heat than they would otherwise be authorized to 
discharge simply due to a natural event.
    Even when accounting for unusually warm conditions in temperature 
standards, attainment determinations should be based on all climatic 
conditions except for those unusually warm and rare conditions in order 
to protect the salmonid designated uses. Thus, given that river 
temperatures exhibit year-to-year variation in their maximum 7DADM 
values, the average maximum 7DADM value from a yearly series, as a 
statistical matter, would need to be lower than the numeric criteria in 
order to meet the criteria nine out of ten years. Therefore, in most 
years, the maximum 7DADM temperature would also need to be lower than 
the numeric criteria in order to meet the criteria in the warm years. 
EPA took this into consideration when it formulated its proposed 
numeric criteria.

F. Total Maximum Daily Loads and Impaired Water Listings

    A TMDL is a tool created by the CWA that expresses the total amount 
of a given pollutant that a particular water body may receive and still 
achieve applicable water quality standards. Section 303(d) of the CWA 
and its implementing regulations at 40 CFR part 130 establish the 
requirements for TMDLs. The TMDL process can broaden the opportunity 
for public participation, expedite water quality-based NPDES 
permitting, and lead to technically-sound and legally-defensible 
decisions for attaining and maintaining water quality standards. In 
addition, the TMDL process provides a mechanism for integrating the 
management of both point and nonpoint pollution sources that together 
may contribute to a water body's impairment. (See Guidance for Water 
Quality-Based Decisions: The TMDL Process, EPA 440-4-91-001, April 
1991.)
    If Oregon lists waters subject to today's proposed rule on its CWA 
section 303(d) list(s) because data or information indicate that water 
quality standards have not been achieved, EPA recognizes that this 
listing decision does not mean that a TMDL will immediately be 
developed. Rather, CWA section 303(d)(1) specifically provides States 
with the discretion to establish a priority ranking for TMDL 
development for listed waters, and then to establish TMDLs in 
accordance with that ranking. EPA notes that even if Oregon establishes 
a TMDL for a water body designated today for salmonid lifestage uses, 
the question of implementing the TMDL with respect to nonpoint sources 
and point sources not required to obtain an NPDES permit is entirely a 
matter of State law.
    As discussed elsewhere in today's proposal, EPA strongly encourages 
the State of Oregon to adopt the appropriate uses for all of the waters 
subject to this rulemaking. Once EPA approves the State's adoption of a 
new use designation for a water body, and withdraws that water body 
from the Federal regulation, the State's use designation will be the 
applicable use for that water body for purposes of compiling the CWA 
section 303(d) list. Oregon will be required to list that water body 
under CWA section 303(d) if data and information show that the use is 
impaired or the water body exceeds the applicable water quality 
criteria for temperature or IGDO for the protection of the associated 
salmonid uses.
    For waters that have salmonid use designations (either Federal or 
State) at the time Oregon assembles its CWA section 303(d) list(s), EPA 
notes that Oregon need not include a water on its list(s) if it lacks 
data and information to determine whether the use is being attained, or 
if the data and information it has is insufficient to make that 
determination. See 40 CFR 130.7(b)(5); ``2004 Integrated Water Quality 
Monitoring and Assessment Report Guidance.'' While EPA expects Oregon 
to follow the requirements, if any, of its assessment and listing 
methodology, EPA also recognizes that it is possible that at the time 
Oregon compiles its 2004 CWA section 303(d) list, it will not have data 
or information for all of the waters designated by this rule for 
salmonid life stage uses. Therefore, it is possible that many of these 
waters will not appear on Oregon's next CWA section 303(d) list(s).

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Executive Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to E.O. 12866 review.

B. Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et. seq. It does not include any information collection, reporting 
or recordkeeping requirements. Burden means the total time, effort, or 
financial resources expended by persons to generate, maintain, retain, 
or disclose or provide information to or for a Federal agency. This 
includes the time needed to review instructions; develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information

[[Page 58786]]

unless it displays a currently valid OMB control number. The OMB 
control numbers for EPA's regulations in 40 CFR are listed in 40 CFR 
part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 
601 et. seq.), generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, a small entity is defined as: (1) A small business 
according to RFA default definitions for small business (based on SBA 
size standards); (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this rule will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule would not impose any requirements on small entities.
    The RFA requires analysis of the impacts of a rule on the small 
entities subject to the rule's requirements. See United States 
Distribution Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996). 
Today's proposed rule establishes no requirements applicable to small 
entities, and so is not susceptible to regulatory flexibility analysis 
as prescribed by the RFA. (``[N]o [regulatory flexibility] analysis is 
necessary when an agency determines that the rule will not have a 
significant economic impact on a substantial number of small entities 
that are subject to the requirements of the rule,'' United Distribution 
at 1170, quoting Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C. 
Cir. 1985) (emphasis added by United Distribution court).)
    Under the CWA water quality standards program, States must adopt 
water quality standards for their waters and must submit those water 
quality standards to EPA for approval; if the Agency disapproves a 
State standard and the State does not adopt appropriate revisions to 
address EPA's disapproval, EPA must promulgate standards consistent 
with the statutory requirements. EPA also has the authority to 
promulgate water quality standards in any case where the Administrator 
determines that a new or revised standard is necessary to meet the 
requirements of the Act. These State standards (or EPA-promulgated 
standards) are implemented through various water quality control 
programs including the NPDES program, which limits discharges to 
navigable waters except in compliance with an NPDES permit. The CWA 
requires that all NPDES permits include any limits on discharges that 
are necessary to meet applicable water quality standards.
    Thus, under the CWA, EPA's promulgation of water quality standards 
establishes standards that the State implements through the NPDES 
permit process. The State has discretion in developing discharge limits 
as needed to meet the standards. While the State's implementation of 
Federally promulgated water quality standards may result in new or 
revised discharge limits being placed on small entities, the standards 
themselves do not apply to any discharger, including small entities.
    Today's proposed rule, as explained earlier, does not itself 
establish any requirements that are applicable to small entities. As a 
result of this action, the State of Oregon will need to ensure that 
permits it issues include any limitations on discharges necessary to 
comply with the standards established in this rule. In doing so, the 
State will have a number of choices associated with permit writing. 
While Oregon's implementation of the rule may ultimately result in some 
new or revised permit conditions for some dischargers, including small 
entities, EPA's action today does not impose any of these as yet 
unknown requirements on small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local or 
Tribal governments or the private sector. The rule imposes no 
enforceable duty on the State or any local or Tribal government or the 
private sector; rather, this rule promulgates criteria and designated 
uses for certain waterbodies in Oregon, which constitute water quality 
standards for those waterbodies. The State may use these resulting 
water quality standards in implementing its water quality control 
programs. Today's proposed rule does not regulate or affect any entity 
and, therefore, is not subject to the requirements of sections 202 and 
205 of the UMRA.
    EPA has determined that this proposed rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. The rule imposes no enforceable requirements on any party, 
including small governments. Thus, this proposed rule is not subject to 
the requirements of section 203 of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State

[[Page 58787]]

and local officials in the development of regulatory policies that have 
Federalism implications.'' ``Policies that have Federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    This proposed rule does not have Federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The rule will not affect the 
nature of the relationship between EPA and States generally, for the 
rule only applies to waterbodies in Oregon. Further, the rule will not 
substantially affect the relationship of EPA and the State of Oregon, 
or the distribution of power or responsibilities between EPA and the 
various levels of government. The proposed rule will not alter the 
State's authority to issue NPDES permits or the State's considerable 
discretion in implementing these water quality standards. Finally, this 
proposed rule will not preclude Oregon from adopting water quality 
standards that meet the requirements of the CWA. Thus, Executive Order 
13132 does not apply to this proposed rule.
    Although section 6 of Executive Order 13132 does not apply to this 
rule, EPA worked closely with the State of Oregon in developing it. In 
the spirit of Executive Order 13132, and consistent with EPA policy to 
promote communications between the EPA and State and local governments, 
EPA specifically solicits comments on this proposed rule from State and 
local officials.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on Tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes as specified in Executive Order 13175. 
Today's rule proposes water quality standards for waters in the State 
of Oregon. These standards do not establish any requirements that are 
directly applicable to any entity, including Tribes. In addition, this 
proposed rule expressly excludes waters in Indian country. Thus, 
Executive Order 13175 does not apply to this rule.
    Although Executive Order 13175 does not apply to this rule, EPA 
sent letters to 12 potentially interested tribal governments and held a 
conference call to provide additional information, answer questions, 
and initiate a dialogue regarding any issues or concerns the Tribes may 
have regarding this proposed rule. EPA expects to continue this 
dialogue on its proposal to establish water quality standards in Oregon 
to ensure that EPA's final action takes Tribal government concerns into 
account. In the spirit of Executive Order 13175 and consistent with EPA 
policies to promote coordination and consultation with tribal 
governments, EPA specifically solicits additional comment on this 
proposed rule from Tribal officials.

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

    Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to 
any rule that: (1) Is determined to be ``economically significant'' as 
defined under E.O. 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This proposed rule is not subject to the Executive Order because it 
is not economically significant as defined in E.O. 12866, and because 
it does not concern an environmental health or safety risk that the 
Agency has reason to believe may have a disproportionate effect on 
children.

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

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995
    (NTTAA) Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA 
to use voluntary consensus standards in its regulatory activities 
unless to do so would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(e.g., materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by voluntary 
consensus standards bodies. The NTTAA directs EPA to provide Congress, 
through the Office of Management and Budget, explanations when the 
Agency decides not to use available and applicable voluntary consensus 
standards.
    This rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards. 
EPA welcomes comments on this aspect of the rulemaking and invites the 
public to identify potentially applicable voluntary consensus standards 
and to explain why such standards should be used in this regulation.

List of Subjects in 40 CFR Part 131

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

    Dated: October 1, 2003.
Marianne Lamont Horinko,
Acting Administrator.
    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR part 131 as follows:

PART 131--Water Quality Standards

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

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

Subpart D--[Amended]

    2. Section 131.39 is added to read as follows:

[[Page 58788]]

Sec.  131.39  Oregon.

    (a) Definitions.
    (1) Natural condition means water temperatures that would exist in 
the absence of human activities that alter water temperature.
    (2) Seven-day average of daily maximum, or 7DADM, means the average 
of daily maximum temperatures over a seven-day period.
    (3) Cold water refugia means waters, defined either spatially or 
temporally, that are more than 2[deg]C/4[deg]F colder than the daily 
maximum temperature at the nearest location in the main river channel.
    (b) Designated Uses for Salmonids. The maps at http://www.epa.gov/r10earth/federaloregonwqs.htm identify the salmonid designated uses 
for: bull trout juvenile rearing and spawning, salmon and steelhead 
core juvenile rearing, salmon and trout juvenile rearing and migration, 
salmon and steelhead migration, and salmon and steelhead spawning 
through fry emergence in each of the indicated water bodies or 
segments. The salmon and steelhead spawning through fry emergence use 
is designated only for the time period indicated in the map legends 
(fall through either May 15 or June 15); all other uses apply 
throughout the year. [You may also view a copy of the maps at EPA 
Region 10's Oregon Operations Office, 811 SW. 6th Avenue, Portland, 
Oregon, 97204.] Where EPA designates bull trout rearing and spawning, 
EPA also designates salmon and steelhead core juvenile rearing. Where 
EPA designates salmon and steelhead core juvenile rearing, EPA also 
designates salmon and trout juvenile rearing and migration. Where EPA 
designates salmon and trout juvenile rearing and migration, EPA also 
designates salmon and steelhead migration.
    (c) Temperature Criteria for Salmonid Uses. The following water 
quality criteria for temperature, with temperatures expressed as a 
7DADM, apply in water bodies or segments designated for the following 
uses, except as provided in paragraph (d) of this section:
    (1) Bull Trout Juvenile Rearing and Spawning: 12[deg]C/54[deg]F.
    (2) Salmon and Steelhead Core Juvenile Rearing: 16[deg]C/61[deg]F.
    (3) Salmon and Trout Juvenile Rearing and Migration: 18[deg]C/
64[deg]F.
    (4) Salmon and Steelhead Migration: 20[deg]C/68[deg]F. In addition, 
the river must have well-distributed cold water refugia. Well-
distributed cold water refugia means cold water refugia that are 
sufficiently distributed so as to allow salmon and steelhead to migrate 
through a river segment or rear without significant adverse effects 
from high water temperatures.
    (5) Salmon and Steelhead Spawning through Fry Emergence: 13[deg]C/
55[deg]F.
    (d) Alternative Temperature Criteria for Salmonid Uses. The 
following criteria, where applicable, apply instead of the criteria 
provided in paragraph (c) of this section:
    (1) Natural Conditions. Where EPA identifies a water body or 
segment where the water temperature under natural conditions exceeds 
the applicable criterion set forth in paragraph (c) of this section, 
the natural condition so estimated shall be the applicable water 
quality criterion. This determination must be based on a 
scientifically-defensible method utilizing best available data. Where 
the natural temperature conditions so estimated exceed 20[deg]C/
68[deg]F, the river must have well-distributed cold water refugia. 
Well-distributed cold water refugia means cold water refugia that are 
sufficiently distributed so as to allow salmon and steelhead to migrate 
through a river segment or rear without significant adverse effects 
from high water temperatures.
    (2) Existing Cold Waters. In a water body or segment in which 
salmonid species that are listed as threatened or endangered under the 
Endangered Species Act are present, and where available data and 
information within the 10-year period preceeding the date of 
publication of the final rule in the Federal Register reflect the 
temperature in the water body and demonstrate that the warmest summer 
maximum 7DADM temperature is colder than the applicable numeric 
criterion. In these cases, the summer maximum 7DADM temperature shall 
be the applicable water quality criterion, unless a complete data 
record of 10 years is available, in which case the maximum 7DADM 
temperature for the year with the second highest maximum 7DADM shall be 
the applicable criterion.
    (e) Temperature Standards Implementation. (1) Heat Load Limit. In 
water bodies that exceed the applicable temperature criteria, 
attainment determinations of these water quality standards for purposes 
of NPDES permitting and TMDL establishment shall allow for 
insignificant additions of heat by anthropogenic sources to water 
bodies or segments that exceed the applicable temperature criteria set 
forth in paragraphs (c) and (d) of this section, subject to the 
conditions in paragraph (e)(2) of this section. For the purposes of 
this paragraph, such additions of heat may be deemed insignificant only 
if all such additions cumulatively, at the point of maximum impact, 
cause the water temperature to exceed the applicable criterion by 
0.3[deg]C/0.5[deg]F or less, assuming complete mixing. In addition, in 
water bodies that exceed the applicable temperature criterion, no 
single NPDES point source may cause, by itself, a temperature increase 
of 0.3[deg]C/0.5[deg]F or more above the applicable criterion assuming 
complete mixing with 25 percent of the river flow.
    (2) Thermal Plume Impacts. In addition to otherwise applicable 
numeric or narrative criteria, the following conditions may not be 
exceeded as a result of a discharge from a NPDES point source 
discharge, or a combination of NPDES point sources discharges:
    (i) Lethality. The maximum temperature within the thermal plume 
caused by a point source, or a combination of point sources, may not 
exceed 32[deg]C/90[deg]F after two seconds of plume travel from the 
point of discharge.
    (ii) Thermal Shock. No more than five percent of the cross-
sectional area of a river or creek may exceed 25[deg]C/77[deg]F.
    (iii) Migration Blockage.
    (A) If the temperature immediately upstream of a point source 
discharge, or a combination of point source discharges, is less than 
21[deg]C/70[deg]F, then no more than 25 percent of the cross-sectional 
area of the receiving water may exceed 21[deg]C/70[deg]F.
    (B) If the temperature immediately upstream of a point source 
discharge, or a combination of point source discharges, is at or above 
21[deg]C/70[deg]F, then no more than 25 percent of the cross-sectional 
area of the receiving water may be more than 0.3[deg]C/0.5[deg]F warmer 
than the upstream temperature.
    (iv) Spawning Impacts. In active spawning or egg incubation areas:
    (A) Water temperatures may not exceed 13[deg]C/55[deg]F if they 
would not have done so in the absence of point source discharges; and
    (B) Where water temperatures would have exceeded 13[deg]C/55[deg]F 
in the absence of point source discharges, water temperatures may not 
exceed 0.3[deg]C/0.5[deg]F above the temperatures they would have 
achieved in the absence of point source discharges.
    (v) Cold Water Refugia Impacts. A thermal plume shall not increase 
the temperature of spatial cold water refugia by more than 0.3[deg]C/
0.5[deg]F.
    (3) Unusually Warm Weather Conditions. A water body shall not be 
water quality-limited for CWA section 303(d) listing purposes if the 
maximum 7DADM temperature for the year with the second highest maximum 
7DADM

[[Page 58789]]

from a complete data record of 10 years is at or below the applicable 
criterion.
    (f) Numeric Intergravel Dissolved Oxygen (IGDO) Criterion for 
Salmonid Uses. (1) In water bodies or segments where the bull trout 
juvenile rearing and spawning or salmon and steelhead spawning though 
fry emergence designated use applies in the State of Oregon, and during 
the applicable time periods, IGDO shall be at least 8.0 mg/L, measured 
as a spatial median, except as provided in paragraph (f)(2) of this 
section.
    (2) Where barometric pressure, altitude, and air temperature 
preclude attainment of the intergravel dissolved oxygen criterion set 
forth in paragraph (f)(1) of this section, then the criterion shall be 
not less than 95 percent of the maximum IGDO level attainable given the 
barometric pressure, altitude, and air temperature.
    (g) Process for Federal Agencies Responsible for Federally-Owned or 
Operated Dams to Request that EPA Modify its Water Quality Standards 
for Oregon. (1) A Federal agency responsible for a Federally-owned or 
operated dam may petition EPA to revise a water quality standard in 
this section. In developing and submitting the petition to EPA, the 
Federal agency must ensure that:
    (i) The petition includes a description of the current function and 
purpose of the dam.
    (ii) The petition is based on a demonstration that normal operation 
of the dam precludes attainment of the use, that reasonable 
alternatives are not feasible to restore the water to its original 
condition, and that there are no feasible and practicable changes to 
operation, maintenance or structure of the dam that can be implemented 
that would result in attainment of the water's designated use.
    (iii) The Federal agency provides an opportunity for affected 
jurisdictions and the public to comment on a draft of the demonstration 
before it is submitted to EPA. The Federal agency must provide EPA with 
a response to the comments.
    (2) In developing the demonstration under paragraph paragraph 
(g)(1) of this section, the Federal agency must address each of the 
following:
    (i) The current purpose and function of the dam including 
information on how well the dam is performing in meeting the 
established purpose and function.
    (ii) Any feasible, practicable alternatives to current operation 
and maintenance of the dam that could improve water quality, including 
coordination of operations between dams.
    (iii) Any feasible, practicable structural modifications to the dam 
that could improve water quality.
    (iv) Any relevant studies of the above factors.
    (3) If such a petition is submitted, EPA will conduct a use 
attainability analysis (UAA) as defined in Sec.  131.3(g) and determine 
within nine months of the Federal agency's submission whether a 
modification to the water quality standard is justified. EPA may extend 
this deadline if a large number of such petitions are submitted during 
the same time period.
    (4) If EPA determines that the use designation should be revised, 
EPA will propose for public comment a rule to revise the applicable use 
designation and take final action within 15 months of making the 
determination in paragraph (g)(3) of this section.
    (5) If EPA determines that the use designation should not be 
revised, EPA will respond to the petition, providing EPA's reasons for 
not proposing to revise the use designation.
    (h) Variances. (1) The Regional Administrator, EPA Region 10, is 
authorized to grant variances from the water quality standards in 
paragraphs (b) through (d) and (f) of this section where the 
requirements of this paragraph (h) are met. A water quality standard 
variance applies only to the permittee requesting the variance, and 
only to the pollutant or pollutants specified in the variance; the 
underlying water quality standard otherwise remains in effect.
    (2) A water quality standard variance shall not be granted if:
    (i) Standards will be attained by all dischargers implementing 
effluent limitations required under sections 301(b) and 306 of the CWA 
and by nonpoint sources implementing cost-effective and reasonable best 
management practices required by the State; or
    (ii) The variance would likely jeopardize the continued existence 
of any threatened or endangered species listed under Section 4 of the 
Endangered Species Act, or result in the destruction or adverse 
modification of such species' critical habitat.
    (3) Subject to paragraph (h)(2) of this section, a water quality 
standards variance may be granted if the applicant demonstrates to EPA 
that attaining the water quality standard is not feasible because:
    (i) Naturally occurring pollutant concentrations prevent the 
attainment of the use; or
    (ii) 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 water conservation 
requirements to enable uses to be met; or
    (iii) 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
    (iv) Dams, diversions or other types of hydrologic modifications 
preclude the attainment of the use, and it is not feasible to restore 
the water body to its original condition or to operate such 
modification in a way which would result in the attainment of the use; 
or
    (v) 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
    (vi) Controls more stringent than those required by sections 301(b) 
and 306 of the CWA would result in substantial and widespread economic 
and social impact.
    (4) Procedures. An applicant for a water quality standards variance 
shall submit a request to the Regional Administrator of EPA Region 10. 
The application shall include all relevant information showing that the 
requirements for a variance have been satisfied. The burden is on the 
applicant to demonstrate to EPA's satisfaction that the designated use 
is unattainable for one of the reasons specified in paragraph (h)(3) of 
this section. If the Regional Administrator preliminarily determines 
that grounds exist for granting a variance, he shall provide public 
notice of the proposed variance and provide an opportunity for public 
comment. Any activities required as a condition of the Regional 
Administrator's granting of a variance shall be included as conditions 
of the NPDES permit for the applicant. These terms and conditions shall 
be incorporated into the applicant's NPDES permit through the permit 
reissuance process or through a modification of the permit pursuant to 
the applicable permit modification provisions of Oregon's NPDES 
program.
    (5) A variance may not exceed 3 years or the term of the NPDES 
permit, whichever is less. A variance may be renewed if the applicant 
reapplies and demonstrates that the use in question is still not 
attainable. Renewal of the variance may be denied if the applicant

[[Page 58790]]

did not comply with the conditions of the original variance, or 
otherwise does not meet the requirements of this section.
    (i) Antidegradation Implementation Methods. (1) What is an existing 
use for purposes of Sec.  131.12(a)(1)? An existing use is a use 
actually attained in the waterbody on or after November 28, 1975, as 
defined in Sec.  131.3(e).
    (2) How is Sec.  131.12(a)(1) implemented? Existing uses must be 
protected when authorizing any discharge or conducting any assessment 
pursuant to the Clean Water Act.
    (3) What is a high quality water for purposes of Sec.  
131.12(a)(2)? High quality waters are those which have water quality 
that meets or is better than all applicable water quality standards, 
including all water quality criteria.
    (4) What does not constitute a lowering of water quality for 
purposes of Sec.  131.12(a)(2)? For purposes of Sec.  131.12(a)(2), 
there is no lowering of water quality in connection with:
    (i) a pollutant concentration increase when there is no overall 
increase in the total mass load of the pollutant on at least an annual 
basis; or
    (ii) a de minimis change in temperature (i.e., a 7DADM stream 
temperature increase 0.3[deg]C/0.5[deg]F or less across the watershed 
above an applicable temperature criteria.)
    (5) What information must be considered before a lowering of water 
quality is allowed under Sec.  131.12(1)(2)?
    (i) No other reasonable alternatives exist except to lower water 
quality.
    (ii) The action is necessary and justifiable for economic and 
social development benefits and outweighs the environmental costs of 
lowered water quality.
    (iii) All water quality standards will be met and beneficial uses 
protected.
    (6) What process must be followed in determining whether to allow a 
lowering of water quality?
    (i) In order to demonstrate the necessity and importance of the 
proposed activity in a high quality water, the discharger/applicant/
source must provide the State with enough information to allow for a 
financial impact analysis that assesses whether allowing an activity 
that lowers water quality has socioeconomic benefits that outweigh the 
environmental costs;
    (ii) After the permitting authority considers whether the activity 
will likely cause a lowering of water quality and whether the 
discharger/applicant/source has demonstrated the necessary 
justification, the permitting authority will issue a preliminary 
decision/recommendation on whether to allow or deny the proposed permit 
or certificate; and
    (iii) This decision/recommendation will be noted prior to the 
intergovermental coordination and public notice phases of the 
antidegradation review.
    (7) What process should be used by the State of Oregon in 
identifying Outstanding Resource Waters (ORWs) for purposes of Sec.  
131.12(a)(3)?
    (i) The State may designate high quality waterbodies to be 
classified as ORWs in order to protect the water quality parameters 
that affect ecological integrity of critical habitat or special water 
quality values that are vital to the unique character of those 
waterbodies.
    (ii) The State of Oregon will develop a screening process and 
establish a list of nominated waterbodies for ORWs designation in the 
Biennial Water Quality Status Assessment Report (305(b) Report). The 
priority waterbodies for nomination include: those in State and 
National Parks, National Wild and Scenic Rivers, State Scenic 
Waterways, those in State and National Wildlife Refuges, and those in 
Federally designated wilderness areas.
    (iii) The State will publish a list of water bodies which are 
proposed for designation as ORWs as appropriate at the time of each 
triennial water quality standards review.
    (iv) When designating ORWs, the State shall establish the water 
quality values to be protected and provide a process for determining 
what activities are allowed that would not affect the outstanding 
resource values.
    (8) What is the significance of an ORW designation?
    (i) After the designation, any regulatory authority that is 
required to follow water quality standards in authorizing an activity 
shall not allow activities that may lower water quality below the level 
established except on a short-term basis to respond to emergencies or 
to otherwise protect human health and welfare.
    (ii) [Reserved]

[FR Doc. 03-25525 Filed 10-9-03; 8:45 am]
BILLING CODE 6560-50-P