[Federal Register Volume 81, Number 189 (Thursday, September 29, 2016)]
[Proposed Rules]
[Pages 66900-66911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23432]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2016-0405; FRL-9953-19-OW]
RIN 2040-AF62


Federal Baseline Water Quality Standards for Indian Reservations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The Environmental Protection Agency (EPA) is considering 
establishing federal baseline water quality standards (WQS) for certain 
Indian reservation waters to narrow a long-standing gap in coverage of 
Clean Water Act (CWA) protections. Currently, fewer than 50 of over 300 
tribes with reservations have WQS effective under the CWA; most of the 
reservations with existing CWA-effective WQS have obtained the coverage 
through treatment in a manner similar to a state (TAS) under CWA 
section 518. In advance of any potential rulemaking to address this gap 
of CWA coverage, EPA specifically invites comments on whether to 
establish such federal baseline WQS for Indian reservation waters that 
do not yet have WQS under the CWA and, if so, what those WQS should be 
and how they should be implemented. Federal baseline WQS would define 
water quality goals for unprotected reservation waters and serve as the 
foundation for CWA actions to protect human health and the environment. 
Such WQS, if established, would apply only to those waters not already 
covered by existing CWA-effective WQS and would be superseded by any 
WQS subsequently adopted by an authorized tribe and approved by EPA 
under CWA section 303(c).

DATES: Comments must be received on or before December 28, 2016. EPA 
intends to hold two public webinars to discuss the ANPRM during the 
public comment period. If you are interested, see EPA's Web site at 
https://www.epa.gov/wqs-tech/advance-notice-proposed-rulemaking-federal-baseline-water-quality-standards-indian for the dates and times 
of the webinars and instructions on how to register and participate.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2016-0405, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Mary Lou Soscia, Region 10, 
Environmental Protection Agency, 805 SW. Broadway, Suite 500, Portland, 
OR 97205; telephone number: (503) 326-5873; email address: 
soscia.marylou@epa.gov.

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

I. Who may be interested in this ANPRM?
II. Background
    A. What is the role of WQS under the CWA?
    B. What is the ``gap'' in WQS protection for waters on Indian 
reservations?
    C. How has EPA tried to address the gap of CWA coverage 
previously?
    D. Why is EPA publishing this ANPRM?
III. What would be included in the federal baseline WQS effort?
    A. To what waters would the potential federal baseline WQS 
apply?
    B. Which waters should be excluded from the potential federal 
baseline WQS?
    C. What designated uses should be considered in proposing 
potential federal baseline WQS?
    D. What water quality criteria should be considered in proposing 
potential federal baseline WQS?
    1. Narrative Water Quality Criteria
    2. Numeric Water Quality Criteria
    a. Aquatic Life Protection
    b. Human Health Protection
    E. What approaches should the potential federal baseline WQS 
take with regard to antidegradation requirements?
    1. Antidegradation Policy
    2. Antidegradation Implementation Methods
    F. How could wetlands be addressed in the potential federal 
baseline WQS?
    G. Which general provisions should be included in the potential 
federal baseline WQS?
    1. Mixing Zone Authorizing Provision

[[Page 66901]]

    2. Compliance Schedule Authorizing Provision
    3. WQS variance authorizing provision
    H. Can tribes adopt WQS of their own?
IV. Statutory and Executive Order Review

I. Who may be interested in this ANPRM?

    Tribes, states, local governments, and citizens concerned with 
water quality, and how water quality may be defined and protected on 
Indian reservations, may be interested in this ANPRM. Entities 
discharging pollutants to waters of the United States may be indirectly 
affected by a rulemaking resulting from this ANPRM since WQS are used 
to develop National Pollutant Discharge Elimination System (NPDES) 
permit limits and serve as a basis for Clean Water Act (CWA) section 
404 permit decisions. WQS are also the basis for assessing water 
quality, identifying impaired waters and developing total maximum daily 
loads (TMDLs) under CWA sections 305(b) and 303(d). Potentially 
affected entities include:

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                                                        Examples of
                     Category                       potentially affected
                                                          entities
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States, Tribes, and Territories..................  Tribes currently
                                                    without CWA-
                                                    effective WQS and
                                                    tribes and states
                                                    near or bordering
                                                    Indian reservations
                                                    that do not have WQS
                                                    effective under the
                                                    CWA.
Federal Agencies.................................  Federal agencies with
                                                    projects or other
                                                    activities near
                                                    surface waters on
                                                    Indian reservations.
Industry.........................................  Industries
                                                    discharging
                                                    pollutants to
                                                    surface waters on
                                                    Indian reservations,
                                                    or that may affect
                                                    surface waters on
                                                    Indian reservations.
Municipalities...................................  Publicly-owned
                                                    treatment works and
                                                    stormwater outfalls
                                                    discharging
                                                    pollutants to
                                                    surface waters on
                                                    Indian reservations,
                                                    or that may affect
                                                    surface waters on
                                                    Indian reservations.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by a 
potential federal baseline WQS rule resulting from this ANPRM. This 
table lists the types of entities that EPA is now aware could 
potentially be affected by such action. Other types of entities not 
listed in the table could also be affected. If you have questions 
regarding the effect of this action on a particular entity, please 
consult the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.

II. Background

A. What is the role of WQS under the CWA?

    The CWA--initially enacted as the Federal Water Pollution Control 
Act Amendments of 1972 (Pub. L. 92-500) and subsequent amendments--
establishes the basic structure in place today for regulating pollutant 
discharges into the waters of the United States. In the CWA, Congress 
established the national objective to ``restore and maintain the 
chemical, physical, and biological integrity of the Nation's waters,'' 
and to achieve ``wherever attainable, an interim goal of water quality 
that provides for the protection and propagation of fish, shellfish, 
and wildlife and for recreation in and on the water'' (sections 101(a) 
and 101(a)(2)).
    The CWA establishes the basis for the current WQS regulation and 
program. Section 301 of the CWA provides that: ``the discharge of any 
pollutant by any person shall be unlawful'' except in compliance with 
specific requirements of Title III and IV of the CWA, including 
industrial and municipal effluent limitations specified under CWA 
section 304 and ``any more stringent limitation, including those 
necessary to meet water quality standards, treatment standards, or 
schedules of compliance established pursuant to any [s]tate law or 
regulation.'' Section 303(c) of the CWA addresses the development of 
state \1\ and authorized tribal WQS and provides for the following:
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    \1\ ``State'' in the CWA and this document refers to the 50 
states, the District of Columbia, and the five United States 
territories: The Commonwealth of Puerto Rico, the U.S. Virgin 
Islands, Guam, American Samoa, and the Commonwealth of the Northern 
Mariana Islands. ``Authorized tribe'' refers to those federally 
recognized Indian tribes with authority to administer CWA WQS 
program in a manner similar to a state under CWA Section 518.
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    (1) WQS shall consist of designated uses and water quality criteria 
based upon such uses;
    (2) States and authorized tribes shall establish WQS considering 
the following possible uses for their waters--protection and 
propagation of fish, shellfish and wildlife, recreational purposes, 
public water supply, agricultural and industrial water supplies, 
navigation, and other uses;
    (3) State and authorized tribal WQS must protect public health or 
welfare, enhance the quality of water, and serve the purposes of the 
CWA;
    (4) States and authorized tribes must review their WQS at least 
once every three years; and
    (5) EPA must review any new or revised state and authorized tribal 
WQS, and is also required to promulgate federal WQS where EPA finds 
that new or revised state or authorized tribal WQS are not consistent 
with applicable requirements of the CWA or in situations where the 
Administrator determines that federal WQS are necessary to meet the 
requirements of the CWA.
    EPA established regulatory requirements in 1975,\2\ 1983,\3\ 
1991,\4\ 2000,\5\ and 2015 \6\ to implement CWA section 303(c), now 
found in the WQS regulation at 40 CFR part 131. The WQS regulation 
includes general provisions, requirements for establishing WQS, 
procedures for review and revision of WQS, and the text of federal WQS 
that EPA has promulgated for specific waters of the United States.
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    \2\ In 1975, EPA established the initial WQS regulation at 40 
CFR 130.17. See 40 FR 55334, Nov. 20, 1975.
    \3\ In 1983, EPA established the core of the current WQS 
regulation by strengthening the previous provisions and moving them 
to a new 40 CFR part 131. See 54 FR 51400, November 8, 1983.
    \4\ In 1991, EPA added 40 CFR 131.7 and 131.8 to extend the 
ability to participate in the WQS program to eligible Indian tribes, 
pursuant to CWA section 518 which was enacted in 1987. See 56 FR 
64893, December 12, 1991. See also EPA's revised interpretation of 
CWA section 518 (81 FR 30183, May 16, 2016).
    \5\ In 2000, EPA promulgated 40 CFR 131.21(c), commonly known as 
the ``Alaska Rule,'' to clarify that new and revised WQS adopted by 
states and authorized tribes and submitted to EPA after May 30, 
2000, become applicable WQS for CWA purposes only when approved by 
EPA. See 65 FR 24641, April 27, 2000.
    \6\ In 2015, EPA updated six key areas of the WQS regulation to 
provide a better-defined pathway for states and authorized tribes to 
improve water quality, protect high quality waters, increase 
transparency and enhance opportunities for meaningful public 
engagement at the state, tribal and local levels. See 80 FR 51019, 
August 21. 2015.
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    CWA-effective WQS are the foundation of the water quality-based 
pollution control program mandated by the CWA and serve a dual purpose. 
First, WQS define the goals for a water body by designating its uses, 
setting criteria to protect those uses, and establishing 
antidegradation requirements. Second, WQS are a basis for water 
quality-based limits in NPDES permits (CWA sections 301(b)(1)(C) and 
402), as the measure to assess whether waters are impaired (CWA section

[[Page 66902]]

303(d)(1)(A)), for assessing and reporting on water quality biannually 
under CWA section 305(b), and as the target for a TMDL or ``pollution 
budget'' to aid in the restoration of impaired waters (CWA section 
303(d)(1)(C)). Under CWA section 401, WQS serve as a basis for 
granting, granting with conditions, or denying state, authorized 
tribal, or federal certifications for federal licenses or permits for 
activities that may result in a discharge to waters covered by such 
WQS.

B. What is the ``gap'' in WQS protection for waters on Indian 
reservations?

    The federal government has recognized 567 tribes. Over 300 of these 
tribes have reservation lands such as formal reservations, Pueblos, and 
informal reservations (i.e., lands held in trust by the United States 
for tribal governments that are not designated as formal reservations). 
Under principles of federal law, states generally lack authority to 
regulate on Indian reservations. See, e.g., Alaska v. Native Village of 
Venetie Tribal Government, 522 U.S. 520, 527 n.1 (1998). EPA has 
generally excluded such lands from state programs it has approved under 
the CWA (and other environmental laws administered by EPA).\7\ Thus, 
state WQS under EPA-authorized state CWA programs generally do not 
apply on Indian reservations.
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    \7\ As noted in this section, there are a few instances where 
EPA has approved state WQS for particular reservations based on 
regulatory authority granted to the state in a separate federal law.
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    In the absence of applicable state or federal WQS, the principal 
mechanism for establishing WQS for Indian reservation waters has been 
through the authority provided by CWA section 518. That section 
provides that, where a tribe is interested in administering the CWA WQS 
program, the tribe must (a) become authorized and (b) adopt and submit 
WQS to EPA for approval. To become authorized, the tribe must seek 
eligibility for TAS--consistent with the requirements of CWA section 
518(e) and 40 CFR 131.8. Section 518(e) of the CWA establishes 
eligibility criteria for TAS, including requirements that the tribe 
have a governing body carrying out substantial governmental duties and 
powers; that the functions to be exercised by the tribe pertain to the 
management and protection of water resources within the borders of an 
Indian reservation; and that the tribe be reasonably expected to be 
capable of carrying out the functions to be exercised in a manner 
consistent with the terms and purposes of the CWA and applicable 
regulations. In 1991, EPA issued a final rule to implement CWA section 
518(e) for the WQS program. EPA's regulation at 40 CFR 131.8 uses the 
eligibility criteria contained in CWA section 518 and establishes 
procedures for EPA Regional Administrators to receive and take action 
on tribal applications, so they are treated in a similar manner as a 
state for CWA purposes. To adopt WQS and have them approved by EPA, an 
authorized tribe must meet the same requirements applicable to states 
in 40 CFR 131 subparts B and C.
    Most of the Indian reservations that are currently covered by CWA-
effective WQS involve authorized tribes that have developed and adopted 
WQS that were approved by EPA (and made effective for CWA purposes). 
Currently, 53 of the over 300 federally recognized tribes with 
reservation lands have been authorized to administer a WQS program. Of 
these authorized tribes, 42 have had their WQS approved by EPA.\8\
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    \8\ EPA maintains a current list of authorized tribes and tribal 
WQS approvals at: https://www.epa.gov/wqs-tech/epa-approvals-tribal-water-quality-standards.
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    Another way to establish CWA-effective WQS for Indian reservation 
waters is for EPA to promulgate federal WQS on a tribe-by-tribe, 
reservation-by-reservation basis. EPA has promulgated such federal WQS 
for one tribe, the Confederated Tribes of the Colville Reservation in 
Washington. See 40 CFR 131.35 (54 FR 28622, July 6, 1989).\9\ There are 
also uncommon circumstances where a separate federal law grants a 
particular state the authority to regulate the environment on an Indian 
reservation. Where EPA expressly approves such a state's authority and 
the state's WQS for waters of an Indian reservation, such WQS will 
apply under the CWA for those waters. To date, EPA has approved three 
states (Washington, South Carolina, and Maine) to administer WQS on 
reservations or parts of reservations of six Indian tribes.
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    \9\ When establishing federal WQS for waters of the United 
States, EPA uses authority provided by the CWA to promulgate federal 
WQS where the EPA Administrator determines that new or revised WQS 
are necessary to meet the requirements of the CWA (see CWA section 
303(c)(4)(B) and 40 CFR 131.22(b)).
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    For various reasons, many tribes with reservation lands have been 
unable to apply, or have chosen not to apply, for TAS to administer a 
WQS program under the CWA. Some tribes have lacked resources to develop 
WQS to implement a WQS program while other tribes are focusing on 
addressing other environmental priorities first. Some tribes may be 
concerned that they cannot meet eligibility requirements, or that 
applying for program authorization could raise jurisdictional or other 
legal issues. Some tribes may have adopted water quality standards 
under tribal law and believe that such water quality standards are 
adequate to protect their water resources without being approved under 
the CWA. However, a tribe must obtain TAS and EPA must approve their 
water quality standards for those standards to be effective for CWA 
purposes.
    Thus, except for the 42 authorized tribes with EPA-approved WQS in 
effect, the one instance where EPA has promulgated federal WQS (for the 
Colville Reservation), and six tribes for which EPA has approved states 
(Washington, South Carolina, and Maine) to adopt WQS on reservations or 
parts of reservations, there is a gap in water quality protection under 
the CWA for waters on Indian reservations.

C. How has EPA tried to address the gap of CWA coverage previously?

    Between 1998 and 2003, EPA consulted widely with tribes, states, 
and others on the possibility of EPA promulgating certain federal WQS 
referred to as ``core WQS'' for Indian country waters without CWA-
effective WQS. On January 18, 2001, EPA Administrator Carol Browner 
signed a proposed rule to promulgate the core WQS under CWA section 
303(c). On January 22, 2001, EPA withdrew that proposal to allow 
additional review. Eventually, EPA Administrator Christine Whitman 
requested that EPA staff conduct additional outreach and consultation 
with tribes and states and issue an ANPRM before proposing a core WQS 
rule. Between 2001 and 2003, EPA began working on the ANPRM to invite 
comments and views on a variety of broad, possible approaches for 
establishing federal core WQS for waters in Indian country. Ultimately, 
EPA did not issue the core WQS ANPRM, nor did it reissue the proposed 
rule.

D. Why is EPA publishing this ANPRM?

    EPA is publishing this ANPRM to initiate an informed dialogue with 
tribes, states, the public, and other stakeholders regarding whether 
EPA should initiate a rulemaking to establish federal baseline WQS for 
Indian reservations currently lacking such WQS and, if so, what 
approach EPA should take regarding key policy issues raised by such a 
rulemaking.
    Federal baseline WQS--which could include designated uses, 
narrative and numeric criteria, antidegradation requirements, and other 
WQS policies such as a mixing zone policy, a compliance schedule 
authorizing

[[Page 66903]]

provision, and a WQS variance procedure--can provide an important tool 
for tribes and EPA to use in making defensible, site-specific decisions 
that protect reservation waters. The WQS being considered would provide 
adequate coverage in each category, as a starting point. To be most 
effective, CWA-effective WQS should be tailored to the individual 
circumstances of the authorized tribe and its waters, likely through 
the development of additional or refined criteria and uses. EPA's 
preference is for tribes to utilize the TAS and WQS submittal process 
to develop such tailored WQS. EPA remains committed to assisting tribes 
in reaching this goal.
    The primary benefit of federal baseline WQS would be to ensure that 
Indian reservation waters that are without CWA-effective WQS have 
direct water quality-based protection under the CWA. Many of the CWA's 
mechanisms for protecting water quality, such as water quality-based 
effluent limits in NPDES discharge permits, rely on WQS as the 
foundation for water quality-based decisions. Without applicable WQS, 
these mechanisms may be limited.
    This ANPRM seeks input on key issues related to whether and how to 
fill the gap of WQS coverage in Indian reservation waters. In 
preparation for this ANPRM effort and consistent with EPA's Policy on 
Consultation and Coordination with Indian tribes, from August through 
November 2015 and from June through August 2016, EPA consulted and 
coordinated with officials from more than 130 tribes from around the 
United States. During that time, EPA received considerable input from 
tribal officials, most of it positive and supportive of this effort. 
EPA plans to continue consultation and coordination with tribal 
officials to address some of the tribes' questions and concerns, most 
of which center on implementation of any federal baseline WQS.
    As mentioned previously, WQS would inform permit decisions and 
other implementation actions. Recognizing tribes potentially affected 
by this effort may have limited resources and experience with WQS 
development, administration, and implementation, EPA would work with 
the affected tribal government(s) through opportunities for 
coordination and consultation, as appropriate, in interpreting and 
applying any final federal baseline WQS rule.
    EPA invites comment from all Indian tribes, especially tribes with 
reservation land that do not have CWA-effective WQS and members of 
those tribes, on whether establishing federal baseline WQS is an 
appropriate step in advancing the federal trust responsibility to 
federally recognized tribes, and enhancing tribal government 
sovereignty through protection of reservation water quality. EPA is 
interested also in any input regarding whether there are any concerns 
that would warrant not including a particular tribe in any final 
federal baseline WQS rule. While EPA is considering proposing to apply 
these WQS to all Indian reservations without CWA-effective WQS, in 
order to meet the goals of the CWA and better protect Indian 
reservation waters, EPA invites comment on other options.
    This ANPRM is part of a broader effort to narrow gaps in CWA-
effective WQS coverage in Indian country. On May 16, 2016, EPA revised 
the interpretation of CWA section 518 to streamline the process for 
tribes to apply for TAS for CWA regulatory programs, including the WQS 
program.\10\ At the same time as EPA considers--through this ANPRM--
whether and how to establish federal WQS for waters on Indian 
reservations, EPA continues to encourage, work closely with, and 
provide support to eligible tribes that wish to seek TAS and develop 
their own WQS for approval under the CWA. EPA continues to recognize 
that the appropriate place for a tribe to fully realize its unique 
objectives for WQS continues to be through seeking TAS for the purpose 
of administering WQS under the CWA.\11\ EPA remains committed to 
helping tribes navigate the TAS and WQS adoption processes. In 
practice, implementation of any final federal baseline WQS could also 
provide individual tribes valuable understanding and experience in how 
WQS function under the CWA to protect Indian reservation waters.
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    \10\ See 81 FR 30183 (May 16, 2016).
    \11\ Recognizing the importance of protecting waters on which 
tribes rely, EPA is also preparing a final rule to establish 
procedures for tribes to obtain TAS to administer the water quality 
restoration provisions of CWA section 303(d) to identify impaired 
waters on their reservations and to establish total maximum daily 
loads, which serve as plans for attaining and maintaining applicable 
WQS.
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    EPA expects that this reinterpretation of CWA section 518 will 
better position tribes to seek TAS, establish their own WQS, and 
facilitate tribal involvement in the protection of reservation water 
quality as intended by Congress. To help facilitate the TAS application 
and WQS adoption processes, EPA is developing new guidance, including 
creating draft TAS applications and WQS language for use by eligible 
tribes.\12\
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    \12\ ``Eligible tribes'' are those tribes that EPA has approved 
for TAS under the requirements of CWA section 518(e) and 40 CFR 
131.8.
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    EPA expects to continue to provide such support even if EPA were to 
promulgate any final federal baseline WQS rule. In addition, as 
described in sections III.A and III.B of this document, EPA would 
expect that any final federal baseline WQS that may be put in place 
would no longer apply to the waters on Indian reservations of a tribe 
once the tribe has been authorized to administer a CWA WQS program and 
the tribe's own WQS are in place and approved by EPA.

III. What would be included in the federal baseline WQS effort?

    EPA seeks input on which components of WQS to include in any 
federal baseline WQS effort--if it determines that such an effort is 
necessary--to ensure that the water quality of waters on Indian 
reservations is protected under the CWA. The range of WQS components 
that could be included are outlined in 40 CFR part 131, and include: 
Designated uses, narrative and numeric criteria, antidegradation 
requirements, and other WQS policies such as a mixing zone policy, a 
compliance schedule authorizing provision, and a WQS variance 
procedure. While EPA shares the ultimate goal of having WQS tailored to 
the particular circumstances of each Indian reservation, given the 
challenges of such an approach in a national federal rule, tailoring 
opportunities may be limited. However, where flexibility under the CWA 
and the national WQS regulation exists, any final federal baseline WQS 
could allow for actions based on such WQS (e.g., NPDES permitting, 
TMDLs) to reflect local considerations and consultation with the 
affected tribe(s).
    EPA invites input on how EPA should approach establishing any 
federal baseline WQS. For instance, should EPA establish one set of WQS 
that apply universally to the reservation waters covered by any final 
federal baseline WQS rule? Alternatively, should EPA pursue 
establishing federal baseline WQS that offer limited tailoring 
opportunities by establishing cultural and traditional designated uses 
that account for unique practices observed by particular tribes (see 
section III.C of this document), criteria that account for higher fish 
consumption patterns of particular tribes by establishing human health 
criteria using a limited range of fish consumption rates (see section 
III.D

[[Page 66904]]

of this document), and establish greater protection for high quality 
and Outstanding National Resource Waters of particular importance to 
the tribe through the antidegradation provisions (see section III.E of 
this document)? These components are further discussed below.
    In addition, EPA seeks input on whether and how to make any 
potential federal baseline WQS consistent with the requirements of 40 
CFR part 132. In 1995, EPA published a final rule at 40 CFR part 132, 
60 FR 15366 (March 23, 1995) that implements the CWA section 118 
requirement for EPA to publish water quality guidance on minimum WQS, 
including antidegradation policies, and implementation procedures for 
the Great Lakes System, and that states and authorized tribes adopt 
WQS, antidegradation policies, and implementation procedures consistent 
with the guidance. EPA invites comments on whether any potential 
federal baseline WQS should ensure that decisions for reservation 
waters in the Great Lakes System (as defined in 40 CFR 132.2) are 
consistent with the WQS, antidegradation policies, and implementation 
procedures for the Great Lakes System in 40 CFR part 132, in addition 
to any final federal baseline WQS, even in cases where tribes have not 
adopted WQS under CWA sections 303(c) and 518.

A. To what waters would the potential federal baseline WQS apply?

    In this ANPRM, EPA invites comment on the potential scope of any 
federal baseline WQS. Such WQS could apply to any or all waters of the 
United States that are, or after the effective date of a final baseline 
WQS rule become, located within the exterior boundaries of an Indian 
reservation except: (1) Indian reservation waters for which EPA has 
promulgated other federal WQS; and (2) Indian reservation waters where 
EPA has expressly found that a tribe or state has jurisdiction to adopt 
WQS, and tribal or state WQS are effective under the CWA. Consistent 
with EPA's long-standing approach, waters of Indian reservations would 
include waters located within the boundaries of Pueblos as well as 
lands held in trust by the United States for an Indian tribe even if 
the land has not been formally designated as a reservation. See, e.g., 
56 FR 64881 (December 12, 1991); see also Oklahoma Tax Commission v. 
Citizen Band Potawatomi Indian Tribe of Oklahoma, 505 U.S. 505, 511 
(1991); HRI v. EPA 198 F.3d 1224 (10th Cir. 2000); Arizona Public 
Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000).
    Indian reservations are a subset of the broader geographic area 
that comprises Indian country as a whole. Indian country is defined at 
18 U.S.C. 1151 as: (a) All land within the limits of any Indian 
reservation under the jurisdiction of the United States Government, 
notwithstanding the issuance of any patent, and, including rights-of-
way running through the reservation; (b) all dependent Indian 
communities within the borders of the United States whether within the 
original or subsequently acquired territory thereof, and whether within 
or without the limits of a state; and (c) all Indian allotments, the 
Indian titles to which have not been extinguished, including rights-of-
way running through the same.

B. Which waters should be excluded from the potential federal baseline 
WQS?

    The objective of any federal baseline WQS would be to address the 
gap in CWA-effective WQS coverage, but it may be appropriate to exclude 
from any such WQS areas certain waters where other tribal or 
reservation-specific CWA WQS apply. EPA invites comments on whether 
federal baseline WQS, if promulgated, should automatically not apply to 
the following categories of Indian reservation waters:

--Indian Reservation waters for which EPA has promulgated other, 
reservation-specific federal WQS. Currently, EPA has promulgated WQS 
for only one Indian reservation, the reservation of the Confederated 
Tribes of the Colville Reservation (see 40 CFR 131.35).
--Indian reservation waters where EPA has explicitly found that a tribe 
or state has jurisdiction to adopt WQS, and the tribe or state has 
adopted WQS that are in effect for CWA purposes in accordance with 
EPA's WQS regulation at 40 CFR part 131. Currently only 42 tribes have 
such WQS, but more could reach this status in the future. There are 
also three instances where EPA has approved states to adopt WQS on 
reservations or parts of reservations of six Indian tribes.

    EPA invites comments on the automatic exclusions described in this 
section and on whether other automatic exclusions should be considered. 
In addition, EPA invites comment on whether the application of any 
exclusion to tribes should be immediate once the Regional Administrator 
or appropriate delegate approves an authorized tribe's own WQS for CWA 
purposes.

C. What designated uses should be considered in proposing potential 
federal baseline WQS?

    The first key component of WQS is designated uses. EPA's WQS 
regulation requires states, and authorized tribes, as well as EPA per 
40 CFR 131.22(c), to specify goals and expectations for how each water 
body is to be used. Designated uses communicate to the public a state 
or authorized tribe's environmental management objectives and water 
quality goals for its waters. Clear and accurate designated uses are 
essential in maintaining the actions necessary to restore and protect 
water quality and meet the requirements of the CWA. EPA's implementing 
regulation distinguishes between two broad categories of designated 
uses: Uses specified in CWA section 101(a)(2) and a non-101(a)(2) use. 
The states and authorized tribes must take these uses into 
consideration when designating waters. EPA invites comments on which 
designated uses should be established in any federal baseline WQS and 
whether and how to differentiate designated uses for different waters 
on Indian reservations that would be covered by such federal baseline 
WQS.
    For the federal baseline WQS effort, EPA is considering including 
designated uses consistent with the uses specified in section 101(a)(2) 
of the CWA. These uses provide for the protection and propagation of 
fish, shellfish, and wildlife, and recreation in and on the water, 
including the protection of human health when consuming fish, 
shellfish, and other aquatic life. Since 1983, EPA's WQS regulation has 
interpreted and implemented the CWA through requirements that WQS 
protect these CWA section 101(a)(2) uses unless states and authorized 
tribes, or EPA by extension, demonstrate that those uses are infeasible 
to attain through a use attainability analysis consistent with EPA's 
regulation at 40 CFR 131.10, effectively creating a rebuttable 
presumption of attainability. Where such uses do not appropriately 
reflect tribe-specific or site-specific conditions, EPA, in 
consultation with tribes, could subsequently modify, sub-categorize, or 
remove such designated uses consistent with EPA's WQS requirements. For 
more information on CWA section 101(a)(2) uses, please refer to EPA's 
Water Quality Standards Handbook, Chapter 2 Designated Uses.\13\ EPA 
requests comment on such an approach and any other alternative 
approach.
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    \13\ https://www.epa.gov/sites/production/files/2014-10/documents/handbook-chapter2.pdf.
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    During the tribal consultation process, many tribes stressed the 
value and

[[Page 66905]]

importance of protecting water quality at levels appropriate for use in 
various cultural and traditional activities of individual tribes. EPA 
does not anticipate proposing to specifically define what cultural and 
traditional uses are for purposes of this effort, because they can 
include a wide variety of uses specific to the ceremonies and 
traditions of each tribe and require different protections. EPA 
anticipates that, in some cases, the cultural and traditional uses 
would be adequately protected under the categories of the CWA section 
101(a)(2) uses. For example, full body immersion in the water and other 
fishing-related cultural or traditional practices may, in some 
instances, be covered by the CWA section 101(a)(2) uses. However, such 
practices that require protection of aquatic plants used for basket 
weaving or water quality for ceremonial washings (uses that tribes 
suggested be protected during the 2015 consultation and coordination 
effort) may not be adequately covered by the CWA section 101(a)(2) 
uses.
    Accordingly, EPA seeks input on whether, and if so, how to include 
protection of specific or general cultural and traditional uses 
explicitly within the scope of the federal baseline WQS. Such a use 
designation would be accompanied by water quality criteria sufficient 
to protect the cultural and traditional uses of the tribe's reservation 
waters. To protect these types of uses, EPA could rely on a combination 
of numeric and narrative criteria. EPA, in consultation with tribes, 
could determine at the implementation stage which criteria are 
applicable to protect the cultural or traditional uses specific to a 
tribe's reservation waters. Tribal treaty or other reserved rights to 
fish, hunt, and/or gather on Indian reservations could generally be 
encompassed by this designated use, to the extent they are not 
encompassed by the other CWA section 101(a)(2) designated uses (e.g., a 
designated use of ``fishing'' or ``fish harvesting'' could encompass 
fish and shellfish consumption, and could also encompass sustenance or 
subsistence fish and shellfish consumption, depending on the reserved 
right). EPA seeks comment on the express inclusion of language 
designating cultural and traditional uses in the potential federal 
baseline WQS and any desired impacts of such a designation.
    EPA could also propose to designate a public water supply use for 
Indian reservation waters covered by the potential federal baseline 
WQS. A public water supply use is a use specified in CWA section 
303(c)(2)(A), and is considered by EPA to be a non-101(a)(2) use, which 
means that it is unrelated to the protection or propagation of fish, 
shellfish, wildlife or recreation in or on the water. This designation 
reflects the requirements in CWA section 303(c) and EPA's implementing 
regulation at 40 CFR 131.10(a) that when states or authorized tribes, 
and EPA per 40 CFR 131.22(c), are establishing WQS, the waters' use and 
value for public water supplies shall be taken into consideration, and 
that WQS protect the public health or welfare, enhance the quality of 
water, and serve the purposes of the CWA. Inclusion of a public water 
supply use designation could help to reinforce EPA's objective to 
establish baseline human health goals that serve as the basis for CWA 
protection. Many states have established such a use on large numbers of 
their water bodies, and EPA anticipates that many tribes will similarly 
desire such a use to be established on some or most of their waters to 
help ensure safe drinking water. On the other hand, designating a 
public water supply use for Indian reservation waters could result in a 
designation on a water body where such a use is not attainable or 
otherwise not appropriate. In such instances, EPA could provide a 
mechanism for the tribe or other parties to provide information for EPA 
to consider in deciding whether to remove that designation.\14\ For 
more information on non-101(a)(2) uses, please refer to EPA's Water 
Quality Standards Handbook, Chapter 2 Designated Uses.
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    \14\ EPA would remove the designation in a manner similar to how 
states and authorized tribes can remove such non-101(a)(2) uses in 
accordance with EPA's regulation at 40 CFR 131.10(k)(3).
---------------------------------------------------------------------------

    EPA is seeking comment on whether the public water supply use is an 
applicable or suitable use that should be proposed for Indian 
reservation waters. Options could include not promulgating this use at 
all for Indian reservation waters, promulgating for all Indian 
reservation waters, promulgating for some Indian reservation waters, or 
not promulgating the use for those specific Indian reservation waters 
identified as unsuitable for such a use prior to finalization of any 
potential federal baseline WQS rule.
    As noted previously, EPA recognizes that it is possible that 
designated uses set forth in any federal baseline WQS may not 
ultimately reflect tribe-specific or site-specific conditions or the 
actual attainability of certain uses. In such circumstances, EPA could 
subsequently modify, sub-categorize, or remove designated uses that 
would be established in the potential federal baseline WQS or add 
additional uses in order to provide limited tailoring of the federal 
baseline designated uses. This could be accomplished through subsequent 
federal promulgations consistent with EPA's regulation at 40 CFR part 
131.\15\ In undertaking any such modification or tailoring, EPA would 
expect to work in consultation with tribes to assemble information to 
develop requisite analyses required by the regulation. EPA could also 
consider ways to streamline any subsequent federal rulemakings, 
including ``batching'' designated use modifications that pertain to 
multiple tribes and delegating such rulemaking authority to the EPA 
Regional Administrators. EPA solicits comment on this potential 
approach to appropriately modifying or tailoring any potential federal 
baseline WQS to address site-specific issues.
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    \15\ Consistent with 40 CFR 131.10, (1) a revision to a use 
specified in CWA section 101(a)(2) or a sub-category of such a use 
requires a use attainability analysis and identification of the 
highest attainable use and associated criteria; and (2) a revision 
to a non-101(a)(2) use, such as public water supply, requires a use 
and value demonstration as described in 40 CFR 131.10(a).
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    EPA continues to encourage tribes who are interested in 
establishing WQS that reflect site-specific, tailored designated uses 
better suited to particular Indian reservations to obtain TAS for WQS 
and adopt their own WQS for EPA review and approval.

D. What water quality criteria should be considered in proposing 
potential federal baseline WQS?

    EPA's current WQS regulation at 40 CFR 131.11 requires adoption of 
water quality criteria that protect designated uses. Such criteria must 
be based on sound scientific rationale, must contain sufficient 
parameters to protect the designated use, and may be expressed in 
either narrative or numeric form. (See 40 CFR 131.11(a) and (b).) In 
adopting water quality criteria, states and authorized tribes should 
establish numeric values based on CWA section 304(a) criteria, CWA 
section 304(a) criteria modified to reflect site-specific conditions, 
or other scientifically defensible methods. (See 40 CFR 131.11(b).) As 
discussed more fully below, CWA section 303(c)(2)(B) requires states 
and authorized tribes to adopt numeric criteria for priority toxic 
pollutants for which EPA has developed CWA section 304(a) recommended 
criteria. CWA section 304(a)(1) requires EPA to develop and publish, 
and from time to time update, criteria for water quality accurately 
reflecting the latest

[[Page 66906]]

scientific knowledge regarding concentrations of specific chemicals or 
levels of parameters in water that protect aquatic life and human 
health. Water quality criteria recommendations developed under CWA 
section 304(a)(1) are based on sound scientific rationale, are 
protective of the designated use(s), and are based solely on data and 
scientific judgments on the relationship between pollutant 
concentrations and environmental and human health effects. CWA section 
304(a)(1) criteria do not reflect consideration of economic impacts or 
the technological feasibility of meeting the chemical concentrations in 
ambient water. EPA's regulation at 40 CFR 131.11(b)(2) provides that 
states and authorized tribes should also establish narrative criteria 
where numeric criteria cannot be determined or to supplement numeric 
criteria. Per 40 CFR 131.22(c), these requirements apply equally to EPA 
when promulgating federal WQS. Narrative criteria are descriptions of 
the conditions necessary to attain a water body's designated use, while 
numeric criteria are values expressed as levels, concentrations, 
toxicity units or other numbers that quantitatively define the desired 
condition of the water body.\16\ Most state and authorized tribal WQS 
include both narrative and numeric water quality criteria.
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    \16\ See EPA's Water Quality Standards Handbook, Chapter 3, 
section 3.5.2. https://www.epa.gov/sites/production/files/2014-10/documents/handbook-chapter3.pdf.
---------------------------------------------------------------------------

1. Narrative Water Quality Criteria
    In considering potential approaches to narrative criteria that 
could be included in any proposed federal baseline WQS, EPA could look 
to the Quality Criteria for Water, 1986 (``Gold Book''). EPA could 
establish a narrative water quality criterion that provides that waters 
must be free from toxic, radioactive, conventional, non-conventional, 
deleterious, or other polluting substances in amounts that will prevent 
attainment of the designated uses specified above. EPA could also 
establish narrative criteria that provide that all waters must be free 
from substances attributable to wastewater or other dischargers that: 
(1) Settle to form objectionable deposits; (2) float as debris, scum, 
oil, or other matter to form nuisances; (3) produce objectionable 
color, odor, taste, or turbidity; (4) injure or are toxic or produce 
adverse physiological responses in humans, animals or plants; and/or, 
(5) produce undesirable or nuisance aquatic life, including excess 
algae. Such narrative criteria would be considered when identifying the 
level of protection sufficient to protect any designated uses 
established in federal baseline WQS, as outlined in section III.C and 
consistent with 40 CFR 122.44(d), when making WQS implementation 
decisions. EPA notes that all states have narrative criteria for the 
protection of designated uses.
    EPA could also include narrative criteria that are specifically 
intended to protect a designated use that includes water-based 
activities essential to maintaining cultural and traditional practices 
that might not be adequately covered by the numeric criteria included 
in the federal baseline WQS. For example, during consultation with EPA, 
some tribes expressed an interest in protecting wild rice for 
consumption and reeds for basket weaving. To help better protect those 
resources, EPA could include a narrative criterion that provides that 
water quality associated with certain designated uses be free from 
pollutants in amounts that prevent the growth of aquatic plants 
regularly harvested by tribes for cultural or traditional activities.
    EPA seeks input on whether to include narrative criteria in any 
proposed federal baseline WQS and, if so, how best to approach the 
development of such criteria. Specifically, EPA solicits comment on the 
inclusion of the narrative criteria discussed above, particularly those 
intended to protect cultural and traditional uses, as well as other 
suggestions regarding how to protect a tribe's cultural and traditional 
practices.
    In addition, EPA invites comments on how to establish a narrative 
criterion specifically intended for the protection of downstream 
waters. Pursuant to CWA sections 303 and 101(a), the federal regulation 
at 40 CFR 131.10(b) requires that ``In designating uses of a water body 
and the appropriate criteria for those uses, the [s]tate shall take 
into consideration the water quality standards of downstream waters and 
shall ensure that its water quality standards provide for the 
attainment and maintenance of the water quality standards of downstream 
waters.'' This provision requires states and authorized tribes, and EPA 
per 40 CFR 131.22(c), to consider and ensure the attainment and 
maintenance of downstream WQS during the establishment of designated 
uses and water quality criteria in upstream waters.
    EPA's current policy on downstream protection is described in a 
document entitled, Protection of Downstream Waters in Water Quality 
Standards: Frequently Asked Questions (June 2014) and includes 
descriptions of numeric and narrative approaches to ensure the 
maintenance and attainment of downstream WQS.\17\ Options to address 
downstream protection include, but are not limited to, downstream 
protection values developed in tandem with upstream criteria, use of 
water quality modeling to ensure upstream criteria are protective of 
downstream WQS, numeric criteria, and customized narratives. States and 
authorized tribes have reasonable discretion in choosing their 
preferred approach to downstream protection based on their individual 
circumstances. As described in that document, EPA has developed a set 
of four customizable templates\18\ for narrative downstream protection 
criteria to assist states and authorized tribes with developing a 
downstream protection narrative criterion. These templates may be used 
to develop a ``broad narrative'' criterion that provides basic legal 
coverage under 40 CFR 131.10(b) (e.g., applies to all waters in the 
reservation) as well as a variety of ``tailored narratives'' that can 
be developed to address specific water bodies, pollutants, and/or water 
body types.
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    \17\ https://nepis.epa.gov/Exe/ZyPDF.cgi/P100LIJF.PDF?Dockey=P100LIJF.PDF.
    \18\ https://www.epa.gov/wqs-tech/templates-narrative-downstream-protection-criteria-state-water-quality-standards.
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    EPA invites comment on consideration of a downstream protection 
narrative criterion and seeks input on suggested narrative language, 
which may be informed through use of the customizable templates. EPA 
solicits any additional suggestions for other options.
2. Numeric Water Quality Criteria
    As noted previously, in accordance with 40 CFR 131.11(b), states 
and authorized tribes, and EPA per 40 CFR 131.22(c), should establish 
numeric water quality criteria, unless numeric criteria cannot be 
established. At minimum, and as noted above, pursuant to CWA section 
303(c)(2)(B), numeric water quality criteria must be established for 
the CWA section 307(a)(1) toxic pollutants.19 20 For 
regulatory purposes, EPA has translated the 65 compounds and families 
of compounds listed under CWA section 307(a) (which potentially include 
thousands of specific compounds) into 126 specific toxic substances, 
which are

[[Page 66907]]

often referred to as the ``priority toxic pollutants.''
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    \19\ The CWA section 307(a)(1) list of toxic pollutants is 
codified at 40 CFR 401.15.
    \20\ Where numeric criteria are not available for such priority 
toxic pollutants, CWA section 303(c)(2)(B) requires adoption of 
water quality criteria based on biological monitoring or assessment 
methods consistent with EPA guidance published pursuant to CWA 
section 304(a)(8).
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    EPA seeks input on whether to establish numeric criteria for any 
federal baseline WQS for all parameters for which EPA has published CWA 
section 304(a) criteria recommendations, or for some other set of 
parameters. These include criteria recommendations for both priority 
toxic pollutants discussed previously as well as many other pollutants 
and parameters. EPA also invites comments on additional options to 
consider when establishing numeric criteria, as well as alternative 
approaches to numeric criteria that could help form the basis for any 
federal baseline WQS.
a. Aquatic Life Protection
    For the federal baseline WQS effort, EPA could include numeric 
criteria for the protection of aquatic life for all pollutants for 
which EPA has published CWA section 304(a)(1) criteria recommendations. 
EPA has established recommended aquatic life criteria under CWA section 
304(a) for 60 pollutants; for a full listing and description of these 
criteria see https://www.epa.gov/wqc/national-recommended-water-quality-criteria-aquatic-life-criteria-table.\21\
---------------------------------------------------------------------------

    \21\ These criteria were derived by EPA using its Guidelines for 
Deriving Numerical National Water Quality Criteria for the 
Protection of Aquatic Organisms and Their Uses. https://www.epa.gov/wqc/guidelines-deriving-numerical-national-water-quality-criteria-protection-aquatic-organisms-and
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    Regarding criteria for temperature, EPA recognizes that temperature 
varies significantly, not only nationally but on a regional and local 
scale. For instance, temperature requirements for a warm water fishery 
differ from temperature requirements protective of a cold water 
fishery, and different stages of aquatic life may in turn need 
different protective WQS. The appropriate temperature WQS to protect 
aquatic life, therefore, may vary among and within reservations 
depending on the location of the reservations and the species endemic 
to the waters. Due to the broad applicability of the potential federal 
baseline WQS to Indian reservations across the United States, EPA is 
interested in obtaining comment on recommended approaches for 
addressing temperature that would be protective of the federally 
promulgated designated uses included in any potential federal baseline 
WQS rule. Specifically, EPA solicits comment on using a narrative 
temperature criterion to account for significant variability in 
temperature requirements of aquatic species in different regions, 
different water bodies, and different temperature sensitivities among 
species to protect and restore the natural thermal regime (spatial, 
temporal, seasonal, diurnal) that is protective of the most thermally 
sensitive species. The translation of this temperature narrative 
criterion would be conducted during CWA implementation (such as permit, 
assessment, TMDL programs) to protect the specific aquatic life uses at 
a site.
    Similarly, the appropriate criteria for nutrients may vary among 
and within reservations depending on the location of the reservations. 
EPA invites comments on whether and how to include numeric and/or 
narrative nutrient criteria in any potential federal baseline WQS rule 
given the resource implications in developing appropriate numeric 
nutrient criteria for such a large number of water bodies over such a 
broad geographic area. EPA solicits comment on other potential 
approaches to addressing nutrients in any potential federal baseline 
WQS rule.
    EPA invites comments on the numeric aquatic life criteria that 
could be included in any potential federal baseline WQS rule. EPA also 
invites comments on additional options to consider when establishing 
numeric criteria for the protection of aquatic life, as well as 
alternative approaches to numeric criteria for the protection of 
aquatic life that could help form the basis for any federal baseline 
WQS.
b. Human Health Protection
    For the federal baseline WQS effort, EPA could include numeric 
criteria for the protection of human health for all pollutants for 
which EPA has published CWA section 304(a) criteria recommendations. 
EPA has published recommended human health criteria under CWA section 
304(a) for 122 pollutants; for a full listing and description of these 
criteria, see https://www.epa.gov/wqc/national-recommended-water-quality-criteria-human-health-criteria-table.
    To derive criteria for the protection of human health, EPA looks 
first to its 2000 Human Health Methodology.\22\ Human health criteria 
are based on two types of biological endpoints: (1) Carcinogenicity and 
(2) systemic toxicity (i.e., all adverse effects other than cancer). 
EPA takes an integrated approach and considers both cancer and non-
cancer effects when deriving human health criteria. Where sufficient 
data are available, EPA derives criteria using both carcinogenic and 
non-carcinogenic toxicity endpoints and chooses the lower value. Human 
health criteria for carcinogenic effects are calculated using the 
following input parameters: Cancer slope factor, cancer risk level, 
body weight, drinking water intake rate, fish consumption rate, and a 
bioaccumulation factor(s). Human health criteria for non-carcinogenic 
and nonlinear carcinogenic effects are calculated using a reference 
dose in place of a cancer slope factor and cancer risk level, as well 
as a relative source contribution, which is intended to ensure that an 
individual's total exposure from all sources does not exceed the 
criteria. Each of these inputs is discussed in more detail in this 
section and in EPA's 2000 Human Health Methodology.
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    \22\ USEPA. 2000. Methodology for Deriving Ambient Water Quality 
Criteria for the Protection of Human Health. U.S. Environmental 
Protection Agency, Office of Water, Washington, DC EPA-822-B-00-004. 
https://www.epa.gov/wqc/human-health-water-quality-criteria.
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    As discussed in this section, EPA seeks additional comment on two 
of the human health criteria input parameters: The cancer risk level 
and the fish consumption rate, which may vary depending on policy 
decisions, other applicable federal laws, and data availability.
    EPA invites comments on the human health criteria that could be 
included in any federal baseline WQS rule. EPA also invites comments on 
alternative approaches to numeric criteria for the protection of human 
health that could help form the basis for any federal baseline WQS.
Cancer Risk Level
    EPA's CWA section 304(a) national recommended human health criteria 
generally assume that carcinogenicity is a ``non-threshold 
phenomenon,'' which means that there are no ``safe'' or ``no-effect'' 
levels because even extremely small doses are assumed to cause a finite 
increase in the incidence of cancer. Therefore, EPA calculates CWA 
section 304(a) human health criteria for carcinogenic effects as 
pollutant concentrations corresponding to lifetime increases in the 
risk of developing cancer.\23\ EPA calculates its CWA section 304(a) 
human health criteria values at a 10-\6\ (one in one 
million) cancer risk level and recommends cancer risk levels of 
10-\6\ or 10-\5\ (one in one hundred thousand) 
for the general population. EPA notes that states and authorized tribes 
can also choose other risk levels, such as 10-\7\ (one in 
ten million), when deriving human health criteria.
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    \23\ As noted above, EPA recommends the criteria derived for 
non-carcinogenic effects if it is more protective (lower) than that 
derived for carcinogenic effects.
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    If the pollutant is not considered to have the potential for 
causing cancer in

[[Page 66908]]

humans (i.e., systemic toxicants), EPA assumes that the pollutant has a 
threshold below which a physiological mechanism exists within living 
organisms to avoid or overcome the adverse effects of the pollutant.
    For the federal baseline WQS effort, EPA could calculate human 
health criteria using the 10-\6\ (one in one million) cancer 
risk level to ensure that the resulting criteria are sufficiently 
protective and based on a sound scientific rationale. EPA invites 
comments on this approach and seeks input on other potential options, 
such as 10-\5\ or 10-\7\.
Fish Consumption Rate
    As noted previously, the fish consumption rate is one of the input 
parameters used to calculate human health criteria. EPA generally 
recommends selecting a fish consumption rate that is based upon local 
data and, where sufficient data are available, selecting a fish 
consumption rate that reflects consumption that is not suppressed by 
fish availability or concerns about the safety of available fish.\24\ 
However, given the broad geographic scope of this potential federal 
baseline WQS rule, it could be challenging to identify reservation-, 
water-, or even region-specific fish consumption rates based on 
available data. EPA current thinking is to propose a more limited set 
of options to address fish consumption rate in any potential numeric 
human health criteria that may be proposed as part of a federal 
baseline WQS regulation. Some potential options include:
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    \24\ USEPA. January 2013. Human Health Ambient Water Quality 
Criteria and Fish Consumption Rates: Frequently Asked Questions. 
https://www.epa.gov/wqc/human-health-ambient-water-quality-criteria-and-fish-consumption-rates-frequently-asked.

--EPA's national default fish consumption rate of 22 g/day, which is a 
90th percentile value found to be reasonable and adequately 
representative of the general population of fish consumers based on the 
2003-2010 data from the National Health and Nutrition Examination 
Survey (NHANES).\25\
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    \25\ EPA's national fish consumption rate is based on the total 
rate of consumption of fish and shellfish from inland and nearshore 
waters (including fish and shellfish from local, commercial, 
aquaculture, interstate, and international sources). USEPA. January 
2013. Human Health Ambient Water Quality Criteria and Fish 
Consumption Rates: Frequently Asked Questions. https://www.epa.gov/wqc/human-health-ambient-water-quality-criteria-and-fish-consumption-rates-frequently-asked.
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--EPA's national default subsistence value of 142 g/day, representing 
subsistence fishers whose daily consumption is greater than the general 
population, as presented in EPA's 2000 Human Health Methodology.
--160 g/day, which provides for half of the USDA's recommended daily 
protein intake from all sources to come from fish consumption (which 
would assume the other half would come from sources other than fish and 
shellfish).
--175 g/day, the 95th percentile value of the data from surveyed tribal 
members in the Fish Consumption Survey of the Umatilla, Nez Perce, 
Yakama, and Warm Springs Tribes of the Columbia River Basin (Columbia 
River Inter-Tribal Fish Commission (CRITFC), 1994).\26\

    \26\ Accounts for consumption of fish from inland and nearshore 
waters, as well as anadromous fish.
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    EPA could consider proposing an approach in which it assigns, as a 
default, human health criteria based on one of the four fish 
consumption rate options above to all reservations, and allow affected 
tribal governments, should they so request in comments, to select one 
of the other three options above for their reservations, based on any 
applicable rights reserved in treaties or other federal law, and 
available data and information. In such a case, EPA could promulgate 
reservation-specific human health criteria based on one of the other 
three alternative fish consumption rates for such reservation(s). EPA 
invites comments this approach, as well as comments on additional 
options to consider when establishing numeric criteria for the 
protection of human health as part of the federal baseline WQS effort.
    During consultation, EPA heard a number of tribes suggest that 
their own specific survey data be used in calculating the fish 
consumption rate for human health criteria for a specific reservation. 
EPA recognizes why such an approach may be attractive to tribes, but 
has concerns that attempting to provide individual, reservation-
specific tailoring opportunities could present a very large workload 
that could substantially delay proposal and finalization of any federal 
baseline WQS effort. EPA notes that an alternative approach to fully 
tailor WQS to a particular reservation is through the TAS and WQS 
adoption processes. EPA requests comment on these considerations and 
how they should be addressed in any potential federal baseline WQS 
regulation.

E. What approaches should the potential federal baseline WQS take with 
regard to antidegradation requirements?

    Maintaining high water quality is critical to supporting economic 
and community growth and sustainability. Protecting high water quality 
also provides a margin of safety that will afford the water body 
increased resilience to potential future stressors, including climate 
change. While preventing degradation and maintaining a reliable source 
of clean water involves costs, it can be more effective and efficient 
than investing in long-term restoration efforts or remedial actions.
    Antidegradation requirements are an essential component of WQS and 
play a critical role in maintaining and protecting the valuable water 
resources. Although designated uses and criteria are the primary tools 
used to achieve the goals of the CWA, antidegradation requirements 
complement these by providing a framework for making decisions 
regarding changes in water quality. In the 1987 amendments to the CWA, 
Congress expressly affirmed the principle of antidegradation that is 
reflected in section 101 of the Act to ``maintain the chemical, 
physical and biological integrity of the Nation's waters.'' In the 1987 
amendments, Congress incorporated a reference to antidegradation 
policies in CWA section 303(d)(4)(B), thus confirming that an 
antidegradation policy is an integral part of the CWA and explaining 
the relationship between the antidegradation policies and other 
regulatory programs under the CWA.
    The federal antidegradation regulation requires development and 
adoption of an ``antidegradation policy'' and development of 
``antidegradation implementation methods.'' 40 CFR 131.12. The intent 
of an antidegradation policy is to ensure that in all cases, at a 
minimum: (1) Water quality necessary to support existing uses is 
maintained; (2) that where water quality is better than the minimum 
level necessary to support protection and propagation of fish, 
shellfish and wildlife, and recreation in and on the water, that water 
quality is also maintained and protected unless, through a public 
process, some lowering of water quality is deemed to be necessary to 
accommodate important economic or social development in the area in 
which the water is located; and (3) waters identified as Outstanding 
National Resource Waters are protected. For the purposes of EPA's 
national WQS regulation, ``antidegradation policies'' must be in rule 
or other legally binding

[[Page 66909]]

form, and must be consistent with the requirements of 40 CFR 131.12(a). 
``Antidegradation implementation methods'' refer to any additional 
documents and/or provisions developed by a state or authorized tribe, 
and EPA per 40 CFR 131.22(c), which describes methods for implementing 
its antidegradation policy, whether or not the state or authorized 
tribe formally adopts the methods in regulation or other legally 
binding form. EPA's initial thinking is that any proposed federal 
baseline WQS would include both an antidegradation policy and 
antidegradation implementation methods. EPA seeks input on establishing 
antidegradation requirements for any federal baseline WQS, whether 
antidegradation implementation methods should be included in rule, as 
well as alternative approaches that could help form the basis for any 
federal baseline WQS.
1. Antidegradation Policy
    The antidegradation policy provisions of any federal baseline WQS 
rule would have to be consistent with the federal antidegradation 
policy at 40 CFR 131.12(a).\27\ Such provisions would establish 
baseline levels of water quality protection for Indian reservation 
waters, as required, by the CWA and federal WQS regulation. EPA notes 
that the language in any federal baseline WQS rule would need to be 
slightly different from 40 CFR 131.12(a) in order to make the policy 
easier to understand in the federal baseline WQS context.
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    \27\ 40 CFR 131.12(a) outlines the required contents of state 
and authorized tribal antidegradation policies; 40 CFR 131.22(c) 
makes clear that in promulgating WQS, EPA is subject to the same 
policies, procedures, analyses, and public participation 
requirements established for states and authorized tribe in the 
national WQS regulation (e.g., the requirements at 40 CFR 
131.12(a)).
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    When identifying high quality (or Tier 2) waters, EPA's initial 
thinking is that high quality waters could be identified, at the time a 
lowering of water quality is proposed, on a parameter-by-parameter 
basis. The national WQS regulation allows states and authorized tribes, 
and EPA per 40 CFR 131.22(c), to utilize either a parameter-by-
parameter basis or a water body-by-water body basis to identify high 
quality waters (see 40 CFR 131.12(a)(2)(i)). Under the parameter-by 
parameter approach, states, authorized tribes (and EPA where necessary) 
determine whether water quality is better than the applicable criteria 
for a specific parameter or pollutant that would be affected by a new 
discharge or an increase in an existing discharge of the pollutant. For 
example, if zinc levels were 20 milligrams per liter (mg/L) and the 
applicable criterion was 120 mg/L, that water body would be a high 
quality water for zinc, but might not necessarily be high quality for 
another parameter. Determining which parameters are at a quality higher 
than necessary to support the CWA section 101(a)(2) uses is generally 
made at the time of a permit application for a new discharge or an 
increase in an existing discharge of the pollutant in question. The 
parameter-by-parameter basis is straightforward, may result in more 
Tier 2 protections being afforded to more waters, and lends itself to 
greater public transparency. EPA seeks input on identifying high 
quality waters using the parameter-by-parameter basis in any federal 
baseline WQS rulemaking.
    EPA's initial thinking is that water bodies could be identified 
that are of exceptional recreational, ecological, or other significance 
(e.g., Outstanding National Resource Waters). This provision would be 
consistent with 40 CFR 131.12(a)(3), and in effect, could establish the 
highest level of protection by prohibiting the lowering of water 
quality. Any proposed federal baseline WQS could outline a nomination 
process to identify Indian reservation waters that warrant protection 
as an Outstanding National Resource Water. Such a process could specify 
that any interested party may nominate a specific water for such 
protection and that the Regional Administrator, in consultation with 
the appropriate tribal government(s), will make the final decision to 
assign the water as an Outstanding National Resource Water. A decision 
to assign a water as an Outstanding National Resource Water is subject 
to the public participation requirements of 40 CFR part 25, although a 
public hearing is not required.
    EPA invites comments on the antidegradation policy outlined in this 
section and how this could be reflected in any potential federal 
baseline WQS proposal. EPA also seeks input on any additional options 
to consider when establishing an antidegradation policy for any 
potential federal baseline WQS rule.
2. Antidegradation Implementation Methods
    Consistent with 40 CFR 131.12(b), methods to implement the 
antidegradation policy must be developed, provide an opportunity for 
public involvement, and be made available to the public. While 
antidegradation implementation methods are not required to be contained 
in regulation, EPA is considering whether to include antidegradation 
implementation methods as a section of any proposed federal baseline 
WQS regulation. Because the antidegradation implementation methods 
would inform permit decisions and other implementation actions, EPA's 
current view is that for public transparency and for consistency in 
implementation, any federal baseline WQS effort should include 
antidegradation implementation methods in regulation. EPA invites 
comments on whether and how EPA could establish antidegradation 
implementation methods for any potential federal baseline WQS 
rulemaking. EPA also seeks input on any additional options to consider 
when establishing antidegradation implementation methods for any 
potential federal baseline WQS rule.
    The WQS regulation at 40 CFR 131.12 does not specify minimum 
elements that must be included in antidegradation implementation, 
however, EPA provided a list of the areas that antidegradation 
implementation methods would need to address, at a minimum, to be 
consistent with the national WQS regulation (see 78 FR 58530, September 
4, 2013). The list of minimum elements includes: (1) Scope and 
applicability; (2) Existing uses protection; (3) High quality water 
protection, including how high quality waters are to be identified, and 
the analyses and procedures that must be met to determine whether to 
allow a lowering of high quality waters; (4) Outstanding National 
Resource Water protection; and (5) Thermal Discharges.\28\ The federal 
baseline WQS effort could establish antidegradation implementation 
methods for each of these minimum elements.
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    \28\ EPA is not requesting comment on EPA's interpretation of 
CWA section 316 or the implementing regulation at 40 CFR 124.66.
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    EPA invites comments on the components and contents of the 
antidegradation implementation methods that could be established to 
meet the minimum elements, as well as any additional options to 
consider when establishing antidegradation implementation methods for 
any potential federal baseline WQS rule.

F. How could wetlands be addressed in the potential federal baseline 
WQS?

    The national WQS regulation at 40 CFR 131.3(i) defines WQS as 
``provisions of [s]tate \29\ or Federal law

[[Page 66910]]

which consist of a designated use or uses for the waters of the United 
States and water quality criteria for such waters based upon such uses. 
WQS are to protect the public health or welfare, enhance the quality of 
water and serve the purposes of the Act.'' Wetlands that are ``waters 
of the United States'' can be covered by federal WQS that help to 
provide a mechanism for their protection. A number of states have 
established WQS for wetlands, and EPA recently worked together with the 
Association of Clean Water Administrators to establish a template to 
assist states and authorized tribes in establishing narrative WQS for 
wetlands.
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    \29\ EPA's regulation, at 40 CFR 131.3(j), defines ``state'' to 
include the ``50 States, the District of Columbia, Guam, the 
Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the 
Commonwealth of the Northern Mariana Islands, and Indian Tribes that 
EPA determines to be eligible for purposes of the water quality 
standards program.''
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    Wetlands often need specialized WQS because they have different 
functions and different vulnerability and wetland-specific WQS can 
provide robust protection for wetlands and their functions. Wetlands 
exist as ecosystems along the margins (land-sea, land-lake, land-river) 
and in depressional landscapes (e.g., prairie potholes in the Midwest 
and kettle-hole wetlands in the northern United States). By season and 
location, wetlands experience variable water depth and velocity, soil 
type and saturation levels, vegetation, nutrient levels, sediment type, 
and oxygen demand, both within a given wetland and among wetland types.
    EPA seeks comment on whether to include specific WQS provisions for 
the protection of wetlands WQS and, if so, suggestions for language, 
considerations, and approaches for doing so. Such wetland-specific WQS 
could include specific designated uses, narrative criteria, and 
antidegradation requirements developed from EPA's online template, see 
https://www.epa.gov/wqs-tech/templates-developing-wetland-water-quality-standards.

G. Which general provisions should be included in the potential federal 
baseline WQS?

    As specified in 40 CFR 131.13--131.15, WQS can generally include 
certain discretionary policies that generally affect how WQS are 
applied or implemented. Most common among such provisions are those 
addressing mixing zones, compliance schedules authorizing provisions, 
and WQS variances. EPA requests input on whether it would be 
appropriate to include such provisions in any proposed federal baseline 
WQS regulation and, if so, which provisions and how they should be 
framed. EPA requests specific comment on inclusion of the following 
three WQS provisions that EPA is considering to ensure effective 
implementation of any potential federal baseline WQS proposal.
1. Mixing Zone Authorizing Provision
    Should EPA consider inclusion of a provision in the potential 
federal baseline WQS rule, if promulgated, to allow EPA to establish 
mixing zones in permitting scenarios on a case-by-case basis after 
consultation with the appropriate tribal government(s)?
    EPA's guidance on mixing zones has been detailed in a number of 
Agency publications, including EPA's Water Quality Standards Handbook, 
Chapter 5, General Policies and the Technical Support Document for 
Water Quality-based Toxics Control (TSD), March 1991, p33-34, 70-78.
    EPA invites comments on whether to include a mixing zone 
authorizing provision in any potential federal baseline WQS rule, as 
well as any additional options to consider when establishing a mixing 
zone authorizing provision.
2. Compliance Schedule Authorizing Provision
    Should EPA consider inclusion of a compliance schedule authorizing 
provision in the potential federal baseline WQS rule, if promulgated, 
to allow compliance schedules to be included in NPDES permits on a 
case-by-case basis when appropriate after consultation with the 
appropriate tribal government(s)? Such authorizing provision would 
allow for compliance schedules to be included in NPDES permits to allow 
permittees additional time to achieve compliance with effluent 
limitations implementing the requirements of the CWA and applicable 
regulations.
    By including such a provision, the potential federal baseline WQS 
would authorize EPA to include a compliance schedule, when appropriate 
and consistent with 40 CFR 122.47, in a NPDES permit for a new, 
recommencing or existing discharger to Indian reservation waters of the 
United States. Where it did so, the discharger to whom a permit was 
issued or reissued on or after the effective date of the final rule 
would have to comply with the permit limitations and requirements by 
the compliance schedule date. A new source or new discharger to Indian 
reservation waters of the United States would not be eligible for a 
compliance schedule unless it meets the requirements of 40 CFR 
122.47(a)(2). If a new source or new discharger is not granted a 
compliance schedule, it must comply with any water quality-based 
effluent limitation in a permit issued on or after the effective date 
of the final rule upon commencing discharge.
    EPA invites comment on the inclusion of a compliance schedule 
authorizing provision as part of any potential federal baseline WQS 
rule, as well as any additional options to consider when establishing a 
compliance schedule authorizing provision.
3. WQS Variance Authorizing Provision
    Should EPA consider inclusion of a provision that would establish a 
process for EPA to issue WQS variances on a case-by-case basis after 
consultation with the appropriate tribal government(s)?
    A WQS variance is a time-limited designated use and criterion 
(i.e., interim requirements) that is targeted to a specific 
pollutant(s), source(s), and/or water body segment(s) that reflects the 
highest attainable condition during the specified time period. As such, 
a WQS variance requires a public process and EPA review and approval 
under CWA section 303(c). While the underlying designated use and 
criterion reflect what is ultimately attainable, the WQS variance 
reflects the highest attainable condition for a specific timeframe and 
is, therefore, less stringent. The interim requirements specified in 
the WQS variance apply only for CWA section 402 permitting purposes and 
in issuing certifications under section 401 of the CWA for the 
pollutant(s), permittee(s), and/or water body or waterbody segment(s) 
covered by the WQS variance.
    Such interim requirements may be adopted based on documentation 
demonstrating the need for a WQS variance consistent with 40 CFR 
131.14(b)(2). Where the underlying designated use and criterion are not 
being met, WQS variances that reflect a less stringent, time-limited 
designated use and criterion would allow dischargers additional time to 
implement adaptive management approaches to improve water quality, but 
still retain the underlying designated use as a long term goal for the 
water body. WQS variances can apply to individual dischargers, multiple 
dischargers, and to entire water bodies or segments.
    A WQS variance serves as the basis for the water quality-based 
effluent limit in NPDES permits. However, the interim requirements do 
not replace the underlying designated use and criteria

[[Page 66911]]

for the water body as a whole for all CWA purposes. A WQS variance is 
designed to lead to improved water quality over the duration of the WQS 
variance and, in some cases, full attainment of designated uses due to 
advances in treatment technologies, control practices, or other changes 
in circumstances, thereby furthering the objectives of the CWA. For 
more information on WQS variances, please refer to EPA's final 
rulemaking to update the national WQS regulation.\30\
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    \30\ 80 FR 51019, August 21, 2015. https://www.gpo.gov/fdsys/pkg/FR-2015-08-21/pdf/2015-19821.pdf.
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    EPA's current regulation allows for adoption of a WQS variance, 
consistent with 40 CFR 131.14, as part of a state or authorized tribe's 
WQS. EPA would consider establishing WQS variances to EPA's promulgated 
federal baseline designated uses and criteria on a case-by-case basis 
in consultation with tribes. Recognizing such tribes may have limited 
resources and minimal to no expertise with WQS development and 
administration, EPA could work in consultation with the affected tribal 
government(s) to assemble documentation to justify a WQS variance and 
meet the requirements of 40 CFR 131.14, as appropriate.
    EPA invites comments on the inclusion of a WQS variance authorizing 
provision as outlined in this section, any additional options to 
consider when establishing a WQS variance provision for any potential 
federal baseline WQS rule, and on the implementation of the WQS 
variance provision.

H. Can tribes adopt WQS of their own?

    In any final federal baseline WQS rule, EPA could include an 
explicit section to make clear that a tribe approved for TAS 
eligibility under CWA section 518 would continue to be able to adopt 
WQS of its own and submit them to EPA for approval, even after baseline 
WQS became effective. The tribe would need to apply to EPA for TAS to 
administer the WQS program. If EPA determines the tribe is eligible to 
administer the program, using the eligibility criteria and procedures 
in 40 CFR 131.8, then EPA would review the WQS adopted and submitted by 
the tribe to EPA. At that point, EPA reviews the submission under the 
process it regularly uses for tribes and states to ensure they are 
consistent with the requirements of the CWA and EPA's implementing 
regulation at 40 CFR part 131, and can approve in whole or in part.\31\ 
For any such WQS that are approved, the corresponding federal baseline 
WQS rule would no longer apply to such tribe's reservation waters 
because such waters would fall within the categories of waters excluded 
from any federal baseline WQS rule, namely reservation waters with CWA-
effective WQS. Therefore, the federal baseline WQS would not affect a 
tribe's ability to apply to administer its own WQS program and adopt 
WQS under 40 CFR 131.8.
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    \31\ CWA section 303(c)(2) requires states and authorized tribes 
to submit new and revised WQS to EPA for review. EPA is required to 
review and approve or disapprove the WQS pursuant to CWA section 
303(c)(3). EPA's goal is to work closely and collaboratively with 
states and authorized tribes throughout the WQS development and 
revision process.
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    EPA invites comments on the inclusion of a section making clear 
that tribes, at any time, may seek TAS and, if approved by EPA, submit 
their own WQS for CWA purposes as outlined in this section.

IV. Statutory and Executive Order Review

A. Statutory and Executive Order Reviews

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), this is a ``significant 
regulatory action'' because the action raises novel legal or policy 
issues. Accordingly, EPA submitted this action to the Office of 
Management and Budget (OMB) for review under Executive Order 12866 and 
any changes made in response to OMB recommendations have been 
documented in the docket for this action. Because this action does not 
propose or impose any requirements, and instead seeks comments and 
suggestions for the Agency to consider in possibly developing a 
subsequent proposed rule, the various statutes and Executive Orders 
that normally apply to rulemaking do not apply in this case. Should EPA 
subsequently determine to pursue a rulemaking, EPA will address the 
statutes and Executive Orders as applicable to that rulemaking.

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

    This ANPRM seeks input on key issues related to whether and how to 
fill the gap of WQS coverage in Indian reservation waters. In 
preparation for this ANPRM effort, EPA consulted and coordinated with 
tribal officials, consistent with EPA's Policy on Consultation and 
Coordination with Indian tribes. EPA initiated consultation in the Fall 
of 2015, from August through November, and then continued consultation 
in the Summer of 2016, from June to August. During that time, EPA 
received considerable input from tribal officials, most of it 
supportive of this effort. The types of questions posed by tribal 
officials are reflected in this ANPRM for further discussion and public 
comment. EPA will continue to consult, coordinate, and engage tribes, 
to permit them to have meaningful and timely input into development of 
any potential federal baseline WQS rulemaking.
    EPA invites comment from tribes on whether establishing federal 
baseline WQS is an appropriate step in advancing the federal trust 
responsibility to federally recognized tribes, and enhancing tribal 
government sovereignty through protection of reservation water quality. 
EPA is interested in any input regarding whether there are any concerns 
that would warrant not including a tribe in any final federal baseline 
WQS rule. While EPA is considering proposing to apply these WQS to all 
Indian reservations without CWA-effective WQS, in order to meet the 
goals of the CWA and better protect Indian reservation waters, EPA 
invites comment on other options.

List of Subjects in 40 CFR Part 131

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

    Dated: September 19, 2016.
Gina McCarthy,
Administrator.
[FR Doc. 2016-23432 Filed 9-28-16; 8:45 am]
 BILLING CODE 6560-50-P