[Federal Register Volume 88, Number 87 (Friday, May 5, 2023)]
[Proposed Rules]
[Pages 29496-29526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09311]
[[Page 29495]]
Vol. 88
Friday,
No. 87
May 5, 2023
Part IV
Environmental Protection Agency
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40 CFR Parts 131, 230 and 233
Federal Baseline Water Quality Standards for Indian Reservations;
Proposed Rule
Federal Register / Vol. 88, No. 87 / Friday, May 5, 2023 / Proposed
Rules
[[Page 29496]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 131, 230, and 233
[EPA-HQ-OW-2016-0405; FRL-5868-03-OW]
RIN 2040-AF62
Federal Baseline Water Quality Standards for Indian Reservations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
establish Federal water quality standards (WQS) for Indian reservation
waters that currently do not have WQS in effect under the Clean Water
Act (CWA or the Act), with limited exceptions. These WQS (referred to
as baseline WQS) would establish human health and environmental
objectives as the basis for CWA protections. EPA would implement the
baseline WQS, in consultation with Tribes, in a manner that would
address location-specific water quality conditions and Tribal
circumstances, as appropriate, and consistent with all relevant public
participation requirements to ensure transparency for stakeholders.
Tribes are encouraged to seek authority to administer their own WQS
program under the Act's provision for eligible Tribes to be treated in
a similar manner as states (TAS). Baseline WQS would not apply in
instances where Tribes with TAS authority have EPA-approved WQS now or
in the future. EPA will continue to work closely with, and offer
support to, Tribes that wish to develop their own WQS under the CWA.
DATES: Comments must be received on or before August 3, 2023.
Public Hearings: The first public hearing will be on Tuesday, June
27 from 2 p.m. to 4 p.m. ET. The second public hearing will be on
Wednesday, July 12 from 2 p.m. to 4 p.m. ET.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2016-0405, at https://www.regulations.gov (our preferred method), or
the other methods identified in this ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA will publish
all comments 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 https://www.epa.gov/dockets/commenting-epa-dockets.
EPA is offering two online public hearings so that interested
parties may provide oral comments on this proposed rule. The first
public hearing will be on Tuesday, June 27 from 2 p.m. to 4 p.m. ET.
The second public hearing will be on Wednesday, July 12 from 2 p.m. to
4 p.m. ET. EPA plans to make a transcript of the public hearings
available to the public in the rulemaking docket. EPA will respond to
substantive comments received as part of developing the final rule and
will include comment responses in the rulemaking docket. For more
details on the public hearings and a link to register, please visit
https://www.epa.gov/wqs-tech/promulgation-tribal-baseline-water-quality-standards-under-clean-water-act.
FOR FURTHER INFORMATION CONTACT: James Ray, U.S. EPA, Office of Science
and Technology, Standards and Health Protection Division, 1200
Pennsylvania Avenue NW (MC 4305T), Washington, DC 20460, (202) 566-
1433, [email protected]. Additional information is also available
online at https://www.epa.gov/wqs-tech/promulgation-tribal-baseline-water-quality-standards-under-clean-water-act.
SUPPLEMENTARY INFORMATION: This proposed rule is organized as follows:
I. General Information
Does this action apply to me?
II. Background
A. Role of Water Quality Standards Under the Clean Water Act
B. Clean Water Act-Effective Water Quality Standards Currently
Applicable in Indian Country
III. EPA's Rationale for Proposing Baseline Water Quality Standards
A. Status of Water Quality Standards Protection in Indian
Country
B. Benefits of EPA Promulgating Baseline Water Quality Standards
for Indian Reservations Where Clean Water Act-effective Water
Quality Standards are not in Place
C. History of EPA's Efforts to Establish Baseline Water Quality
Standards
D. EPA's Authority for Establishing Baseline Water Quality
Standards
IV. Where the Proposed Baseline Water Quality Standards Would Apply
A. Waters to Which the Proposed Baseline Water Quality Standards
Would Apply and Waters That Would Be Automatically Excluded
B. Additional Option for Case-by-Case Exclusions From
Application of the Baseline Water Quality Standards
V. Proposed Baseline Water Quality Standards
A. Proposed Baseline Designated Uses
B. Proposed Baseline Water Quality Criteria
C. Proposed Baseline Antidegradation Policy and Implementation
Procedures
D. Other Proposed Water Quality Standards Provisions of Baseline
Water Quality Standards
VI. Proposed Procedure To Revise a Designated Use, add a Designated
Use, or Establish a Water Quality Standards Variance After the
Proposed Rule is Final
VII. Implementation of Baseline Water Quality Standards in Clean
Water Act Programs
A. Section 402 NPDES Discharge Permits
B. Section 404 Permits for Discharges of Dredged or Fill
Material
C. Section 401 Certifications
D. Section 303(d) Impaired Water Listings and Total Maximum
Daily Loads
VIII. Effective Date of the Baseline Water Quality Standards
IX. Conditions Under Which Baseline Water Quality Standards Would no
Longer Apply
X. Economic Analysis
A. Identifying Affected Entities
B. Method for Estimating Costs
C. Results
XI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review;
Executive Order 13563: Improving Regulation and Regulatory Review;
and Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
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 and Safety Risks)
H. Executive Order 13211 (Actions That Significantly Affect
Energy Supply, Distribution, or Use)
I. National Technology Transfer and Advancement Act of 1995
J. Executive Order 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations)
I. General Information
Does this action apply to me?
Tribes,\1\ states, local governments, and citizens concerned with
water
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quality and how water quality may be defined and protected on Indian
reservations may be interested in this rulemaking. Entities discharging
pollutants to waters of the United States may be indirectly affected by
this rulemaking since water quality standards (WQS) are used to develop
National Pollutant Discharge Elimination System (NPDES) permit limits
and serve as a basis for Clean Water Act (CWA) section 402 permit
decisions. WQS also form the basis for assessing water quality,
identifying impaired waters, and developing total maximum daily loads
(TMDLs). See CWA sections 305(b) and 303(d). In CWA section 404
permits, WQS are used during the review of permits authorizing the
discharge of dredged or fill material. Categories and entities that may
be affected include the following:
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\1\ ``Tribe'' means an Indian or Alaska Native Tribe, band,
nation, pueblo, village, community, or other entity that the
Secretary of the Interior acknowledges to exist as an Indian Tribe
pursuant to the Federally Recognized Indian Tribe List Act of 1944,
25 U.S.C. 479a.
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Category Examples of potentially affected entities
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States, Tribes, and Federally recognized Tribes with Indian
Territories. reservations currently without CWA-
effective WQS and states and authorized
Tribes near or bordering such
reservations.
Federal Agencies............ Federal agencies with projects or other
activities that may affect surface waters
on Indian reservations currently without
CWA-effective WQS.
Industry.................... Industries discharging pollutants that may
affect surface waters on Indian
reservations currently without CWA-
effective WQS.
Municipalities.............. Publicly owned treatment works and
stormwater outfalls discharging
pollutants that may affect surface waters
on Indian reservations currently without
CWA-effective WQS.
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This table is not exhaustive, but rather it provides a guide that
identifies entities that could be affected by this proposed rule. 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. Role of Water Quality Standards Under the Clean Water Act
The CWA establishes the basic structure for regulating pollutant
discharges into 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.
The CWA also sets forth the interim goal of achieving water quality,
wherever attainable, that provides for both (i) the protection and
propagation of fish, shellfish, and wildlife and (ii) recreation in and
on the water (sections 101(a) and 101(a)(2)). 33 U.S.C. 1251(a),
(a)(2). To help achieve these goals, the CWA created two complementary
structures for regulating discharges in CWA section 402 NPDES permits:
first, technology-based effluent limitations (TBELs) that set a floor
of performance for categories of dischargers, and second, water
quality-based effluent limitations (WQBELs) that are established where
TBELs are insufficient to meet applicable WQS or site-specific water
quality goals. 33 U.S.C. 1342(a). TBELs in NPDES permits are derived
from secondary treatment standards, which are minimum requirements for
municipal wastewater treatment plants (CWA sections 301, 33 U.S.C.
1311), effluent limitations guidelines, which are national regulatory
standards for industrial wastewater discharged to surface waters and
municipal sewage treatment plants (CWA sections 304 and 1314), and new
source performance standards, which are standards for water pollution
discharges of industrial wastewater to surface waters (CWA section 306,
33 U.S.C. 1316) promulgated by EPA. If TBELs are not sufficient to meet
the WQS in the receiving water, the CWA (section 301(b)(1)(c), 33
U.S.C. 1311(b)(1)(c)) and EPA's NPDES regulation, 40 CFR 122.44(d),
require that the permit writer develop more stringent, WQBELs.
WQS are the foundation of the water quality-based pollution control
programs required by the CWA. Under CWA section 303(c) and EPA's
regulation at 40 CFR part 131, WQS consist of designated uses for water
bodies, water quality criteria to protect those uses, and an
antidegradation policy to maintain water quality. 33 U.S.C. 1313(c).
Such standards serve as a description of the desired water quality for
particular water bodies. In addition, they serve as the basis for
several CWA programs, including:
WQBELs issued through state or National Pollutant
Discharge Elimination System (NPDES) Program under section 402, 33
U.S.C. 1342;
Section 303(d), 33 U.S.C. 1313(d), water body assessments
and determinations of TMDLs;
Section 401, 33 U.S.C. 1341, certifications of Federal
licenses and permits; and
Section 404, 33 U.S.C., 1344, permits for dredged or fill
material.
CWA section 303(c) gives states the primary responsibility to
establish, review, and revise WQS applicable to their waters. In 1987,
Congress amended the CWA to add section 518, the CWA provision for
eligible Indian Tribes to be treated in a similar manner as states, or
TAS. 33 U.S.C. 1377. In CWA section 518, Congress expressly delegated
authority to Indian Tribes to administer CWA regulatory programs over
their entire reservations, including over nonmember activities on fee
lands within the reservation of the applicant Tribe, subject to certain
eligibility requirements. For a Tribe to be eligible to obtain TAS
authority and administer a CWA program, the Tribe must be federally
recognized and maintain governmental authority over a reservation,
among other requirements.\2\
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\2\ Under CWA section 518 and EPA's implementing regulation at
40 CFR 131.8(a), four requirements must be satisfied before EPA can
approve a Tribe's application for treatment in a similar manner as a
state for purposes of administering water quality standards under
CWA section 303(c).
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EPA's use of ``Tribe'' in the context of this proposed rule refers
to ``Tribal government authority'' that serves as the ultimate
decision-maker for the Tribe.
Pursuant to CWA section 518, Tribes can obtain TAS under the CWA
for water resources on their reservation. See 33 U.S.C. 1377(e)(2)
(referring to waters ``within the borders of an Indian reservation'');
81 FR 30183, 30191, May 16, 2016. Many named Indian reservations were
established through Federal treaties with Tribes, Federal statutes, or
Executive orders of the President. Such reservations are often referred
to as formal reservations. EPA's longstanding approach under the CWA
and other statutes administered by EPA is that, in accordance with
judicial precedent, the term ``reservation'' includes both formal
reservations and
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informal reservations such as trust land that has been validly set
apart for use by a Tribe even if such trust land is located outside of
the exterior boundaries of a formally designated reservation. See 56 FR
64876, 64881, December 12, 1991; see also Oklahoma Tax Commission v.
Citizen Band Potawatomi Indian Tribe of Oklahoma, 508 U.S. 114, 123
(1991) (``Congress has defined Indian country broadly to include formal
and informal reservations, dependent Indian communities, and Indian
allotments, whether restricted or held in trust by the United
States''); HRI v EPA 198 F.3d 1224 (10th Cir. 2000) (same); Arizona
Public Service Co. v EPA, 211 F.3d 1280 (D.C. Cir. 2000) (Upholding
EPA's interpretation of ``reservation'' in the Clean Air Act as
including tribal trust lands and pueblos, and noting that ``[t]his view
is consonant with other Federal court holdings that an Indian
reservation includes trust lands.''). An Indian Tribe that obtains EPA
approval for TAS to administer a WQS program over its reservation is
referred to as an ``authorized Tribe.''
CWA section 303(c) also provides for EPA to promulgate Federal WQS
in two situations. First, EPA must act if it determines that a state's
or authorized Tribe's new or revised WQS is not consistent with the
requirements of the Act, and the state or authorized Tribe fails to
submit a modified standard within 90 days. In that case, section
303(c)(4)(A) requires EPA to propose and promulgate a revised or new
standard for the waters involved, unless prior to promulgation, the
state or authorized Tribe adopts a WQS that EPA determines to be
consistent with the Act. Second, section 303(c)(4)(B) grants the EPA
Administrator discretion to promulgate standards in any case where the
Administrator determines that a revised or new standard is necessary to
meet the requirements of the Act. A determination pursuant to section
303(c)(4)(B) is referred to as an ``Administrator's Determination.''
See 40 CFR 131.22(b).
B. Clean Water Act-Effective Water Quality Standards Currently
Applicable in Indian Country
``Indian country'' is defined by Federal statute at 18 U.S.C.
1151.\3\ Pursuant to that definition, Indian country includes all
territory within an Indian reservation (including land owned in fee
simple by non-Indians). It also includes ``dependent Indian
communities'' (DICs) and Indian allotments, the titles to which have
not been extinguished, regardless of whether those lands are located
within a reservation. EPA generally directly implements Federal
environmental programs in Indian country where it has not approved a
non-Federal entity to implement the program.\4\ See EPA's 1984 Indian
Policy (``EPA Policy for the Administration of Environmental Programs
on Indian Reservations,'' EPA, November 8, 1984); see also Phillips
Petroleum Co. v. EPA, 803 F.2d 545, 556 (10th Cir. 1986) (holding that
EPA had authority to prescribe regulations in Indian country, and
noting that the court's conclusion was ``also consistent with the
presumption that Congress intends a general statute applying to all
persons to include Indians and their property interests.''); 40 CFR
144.2 (Underground Injection Control Program); 40 CFR 123.1(h)
(National Pollution Discharge Elimination System Program); 40 CFR
71.4(b) (Clean Air Act Title V Permit Program); 40 CFR 281.12(a)(2)
(Underground Storage Tanks Program). Because EPA-approved state WQS
generally do not apply in Indian country, in the absence of Federal WQS
or EPA-approved Tribes' WQS, no CWA-effective WQS apply in the many
Indian country waters where Tribes have not yet obtained TAS and
established EPA-approved WQS.\5\
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\3\ 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. Indian reservations are thus a subset of the
broader geographic area that comprises Indian country as a whole.
\4\ In a few instances, EPA has determined that, due to unique
jurisdictional frameworks enacted by Congress, certain states have
jurisdiction to administer WQS on Indian reservations under the CWA.
These include the reservations, including trust lands, of all four
Tribes in Maine (Houlton Band of Maliseet Indians, Mi'kmaq Nation,
Passamaquoddy Tribe, and Penobscot Nation), the reservation of the
Catawba Indian Nation in South Carolina, non-Indian fee lands of the
Puyallup Reservation in Washington, and reservation lands (excluding
Tribal trust lands, Indian allotments, and certain Tribal fee lands)
in Oklahoma. See, e.g., Letter from H. Curtis Spalding, Regional
Administrator, EPA Region 1, to Patricia W. Aho, Commissioner, Maine
Department of Environmental Protection, ``Re: Review and Decision on
Water Quality Standards Revisions'' (February 2, 2015), Attachment A
at 2; Letter from Daniel Opalski to Laura Watson, Director,
Washington Department of Ecology, Re: Clean Water Act Section 401
Implementation within the Puyallup Tribe of Indians 1873 Survey Area
(August 9, 2021) (Noting that the State of Washington is authorized
``to administer all Clean Water Act delegated and authorized
programs on non-trust lands, as defined in the 1988 Lands Claims
Settlement Agreement,'' pursuant to the Puyallup Tribe of Indians
Settlement Act of 1989, 25 U.S.C. 1773); EPA, 87 FR 3673, Air Plan
Approval; South Carolina; Catawba Indian Nation Portion of the
Charlotte-Gastonia-Rock Hill Area Limited Maintenance Plan for the
1997 8-Hour Ozone NAAQS (January 25, 2022) (``Pursuant to the
Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120 . . .
`all state and local environmental laws and regulations apply to the
[Catawba Indian Nation] and Reservation and are fully enforceable by
all relevant state and local agencies and authorities.'''); Letter
from Andrew R. Wheeler to The Honorable J. Kevin Stitt, Governor of
the State of Oklahoma, Re: Approval of State of Oklahoma Request
Under Section 10211(a) of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act of 2005 (October 1, 2020). (On December
22, 2021, EPA publicized a ``Notice of Proposed Withdrawal and
Reconsideration of October 1, 2020 SAFETEA Decision and Opportunity
for Comment.'' EPA's reconsideration is currently ongoing, and
Oklahoma's approval to administer WQS in the stated areas of Indian
reservations remains in place during that process.)
\5\ Some Tribes may have WQS effective under Tribal law. Such
standards are not effective for CWA purposes, however, until they
are approved by EPA. 40 CFR 131.21.
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The Federal Government has recognized 574 Tribes.\6\ More than 300
of these Tribes have formal and/or informal reservations: e.g., named
formal reservations, Pueblos, Rancherias, and lands held in trust by
the United States for Tribal governments that are not designated as
formal reservations. With few exceptions,\7\ any of these Tribes may
apply to EPA under CWA section 518 to administer specific environmental
programs, including WQS, for water resources within the boundaries of
the Tribe's reservation. As explained in section II.A. of this
preamble, waters within the boundaries of a Tribe's reservation also
refers to waters on Tribal trust lands not formally designated as
reservations.
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\6\ See Indian Entities Recognized by and Eligible to Receive
Services from the United States Bureau of Indian Affairs: Notice,
Department of the Interior, 86 FR 7554 (January 29, 2021).
\7\ See supra note 4.
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EPA has approved TAS applications for 84 Tribes to administer the
CWA section 303(c) program. Tribes with an approved TAS application may
adopt WQS under section 303(c) of the CWA and submit them to EPA for
review pursuant to CWA section 303(c) and EPA's implementing
regulation. To date, 47 of the 84 Tribes have submitted Tribal WQS that
EPA has approved in this manner. EPA's website, EPA Actions on Tribal
Water Quality Standards and Contacts \8\ lists these Tribes and the
dates their TAS authority and WQS were approved. EPA updates this list
continually. EPA also provides technical assistance to Tribes in
developing TAS applications and WQS.\9\
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\8\ https://www.epa.gov/wqs-tech/epa-actions-tribal-water-quality-standards-and-contacts.
\9\ https://www.epa.gov/wqs-tech/water-quality-standards-tools-tribes.
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In one instance, EPA has promulgated Federal WQS for an Indian
reservation. In 1986, the Confederated Tribes of the Colville
Reservation (CTCR) in Washington requested EPA to promulgate the CTCR's
WQS as Federal standards for waters of the reservation. The CTCR was
concerned that their WQS could not otherwise be recognized under the
CWA at that time. After EPA received the request from the CTCR,
Congress passed the CWA amendments of 1987 to add the TAS provisions of
section 518 described in section II.A of this preamble. Despite the
pending opportunity to qualify for TAS for purposes of administering a
WQS program, the CTCR supported EPA's promulgation of Federal WQS for
the reservation. EPA finalized the CTCR promulgation in 1989 at 40 CFR
131.35. In 2018, the CTCR obtained TAS authority to administer a WQS
program and is in the process of developing its own Tribe-adopted WQS
for CWA purposes.
III. EPA's Rationale for Proposing Baseline Water Quality Standards
A. Status of Water Quality Standards Protection in Indian Country
As mentioned in section II.B of this preamble, while more than 300
Tribes with Indian reservations are eligible to apply for TAS, only 84
Tribes have applied and been approved to administer a WQS program. Of
these 84 Tribes, only 47 Tribes to date have adopted WQS and submitted
them to EPA for review and approval under the CWA. EPA has generally
excluded Indian reservations from state WQS approvals, subject to
limited exceptions.\10\ EPA estimates that about 76,000 miles of rivers
and streams and 1.9 million acres of lakes, reservoirs, and other open
surface waters within Indian reservations currently lack CWA-effective
WQS; these reservations are home to approximately 550,000 people.\11\
As a result, 50 years after enactment of the CWA, the majority of
Indian reservations do not have this foundational protection laid out
by Congress in the CWA for their waters.
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\10\ See supra note 4.
\11\ See EPA's draft analysis, Analysis of Tribal Reservation
Lands without Applicable WQS (Draft), in the docket for this
rulemaking.
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Tribal interest in obtaining TAS and adopting their own WQS has
increased in recent years, especially after EPA's action in 2016 to
revise its interpretation of CWA section 518, which streamlined aspects
of a Tribe's TAS application.\12\ A total of 27 of the 84 Tribes with
TAS for the WQS program have been approved in the six years since then.
Nonetheless, acquiring TAS authorities and adopting WQS is a time and
resource-intensive process. At the current pace, it could take more
than a decade for CWA-effective WQS to be put in place for all Indian
reservations.
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\12\ See Revised Interpretation of Clean Water Act Tribal
Provision, final interpretive rule, 81 FR 30183, May 16, 2016.
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The lack of CWA-effective WQS for most Indian reservations means
that those waters do not have the human health and environmental
objectives in place that form the basis for CWA protections. WQS are
central to implementing the water quality framework of the CWA.
Although it is EPA's preference for Tribes to obtain TAS and develop
WQS tailored to the Tribes' individual environmental goals and
reservation waters, EPA's promulgation of baseline WQS would safeguard
water quality until Tribes obtain TAS and adopt CWA WQS themselves.
B. Benefits of EPA Promulgating Baseline Water Quality Standards for
Indian Reservations Where Clean Water Act-Effective Water Quality
Standards Are Not in Place
EPA is proposing a national rule to establish baseline WQS to
safeguard water quality for certain Indian reservation waters. The
proposed rule will ensure that the core CWA framework to protect water
quality is in place for these waters until the Tribe applies for TAS to
administer a WQS program and adopts its own Tribal WQS consistent with
CWA section 303(c). EPA is proposing to establish the following WQS:
designated uses consistent with the CWA protection and
restoration goals for aquatic life and users of surface water;
a designated use that protects cultural and traditional
uses;
water quality criteria to protect those uses;
an antidegradation policy with associated implementation
procedures; and
general WQS polices such as a mixing zone policy and
compliance schedule authorizing provision.
EPA recognizes that WQS specific to the site-specific chemical,
physical and biological conditions of each reservation might be more
desirable than Federal baseline WQS. However, developing WQS tailored
to each reservation, and potentially to different categories of waters
within each reservation, would further delay needed protections.
Instead, EPA is relying on its role as both the promulgating entity and
the primary implementing authority to allow a degree of site-specific
tailoring within the regulatory construct of the WQS during subsequent
implementation of the proposed rule. This tailoring would be
accomplished by use of the narrative criteria and binding translation
procedures identified in the rule. For example, a particular Tribe's
fish consumption rates could be used during the implementation stage as
part of the calculation to set the appropriate human health criteria
value for its waters.
Because no Tribes have yet applied for TAS to administer the CWA
section 402 NPDES permitting program, EPA is typically the NPDES
permitting authority in Indian country. In the absence of CWA-effective
WQS for these waters, EPA permit writers have utilized various tools to
write protective NPDES permits, such as relying on downstream state WQS
to inform relevant permit limits. However, these mechanisms are limited
in their ability to protect Tribal waters reflecting Tribal priorities.
C. History of EPA's Efforts To Establish Baseline Water Quality
Standards
EPA has been working with Tribes on the concept of promulgating
baseline WQS for over two decades. Between 1998 and 2003, EPA consulted
with Tribes, and sought input from states and the public on the
possibility of EPA promulgating certain Federal WQS referred to as
``core water quality standards'' for Indian country waters without CWA-
effective WQS. On January 18, 2001, EPA Administrator Carol Browner
determined, pursuant to CWA section 303(c)(4)(B), that new or revised
WQS were necessary for certain Indian country waters lacking CWA-
effective WQS. Pursuant to the Determination, Administrator Browner
signed a proposed rule to promulgate the core WQS under CWA section
303(c).\13\ Specifically, the Determination provides as follows:
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\13\ Federal Water Quality Standards for Indian Country and
Other Provisions Regarding Federal Water Quality Standards. 2001:
https://19january2017snapshot.epa.gov/sites/production/files/2016-08/documents/federal_wqs_for_indian_country_proposal_signed_1-18-01.pdf.
[E]xcept where the Tribe wants to have its Indian country waters
excluded from this rule and the Tribe and/or EPA has or intends to
develop a plan for establishing water quality standards under the
Clean Water Act within a reasonable time, and for off-reservation
allotments . . . the EPA Administrator finds under the Clean Water
Act sections 303(c)(4)(B) and 501(a) that
[[Page 29500]]
water quality standards are necessary to meet the requirements of
the Clean Water Act for all Indian country waters where EPA has not
either (1) promulgated other Federal water quality standards or (2)
explicitly found State or Tribal jurisdiction to adopt water quality
standards (and Tribal or State standards are in effect) under the
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Clean Water Act.
The proposed rule excepted waters from the Determination where a
Tribe demonstrated to the Regional Administrator that it had a plan in
place, was working to develop such a plan, or the Tribe and Regional
Administrator have agreed on a plan for adopting CWA-effective WQS
within a ``reasonable amount of time.'' On January 22, 2001, EPA
withdrew that proposal prior to its publication in the Federal Register
to allow additional review.
In 2015, EPA renewed its efforts to engage in rulemaking to provide
WQS protections in Indian country, focusing on Indian reservation
waters that did not have CWA-effective WQS in place. In 2016, EPA
published an advance notice of proposed rulemaking (ANPRM) to initiate
a formal dialogue with Tribes, states, the public, and other
stakeholders regarding whether EPA should initiate a rulemaking and, if
so, what approach EPA should take regarding key policy issues raised by
such a rulemaking. 81 FR 66900, September 29, 2016. EPA engaged in
extensive consultation and coordination with Tribes leading up to the
publication of the ANPRM in the Federal Register. EPA provided a public
comment period on the ANPRM and received comments from 12 Tribal
governments and associations; 11 state officials, agencies, and
associations; 11 private citizens; and the Domestic Energy Producers
Alliance. Refer to Docket ID No. EPA-HQ-OW-2016-0405 to view comments
submitted to EPA on the ANPRM and EPA's website at https://www.epa.gov/wqs-tech/advance-notice-proposed-rulemaking-federal-baseline-water-quality-standards-indian.
As a general summary, most comments associated with the ANPRM from
Tribal governments expressed support for promulgation of baseline WQS
at the time. However, some Tribes expressed concerns with this effort,
perceiving it as an infringement on Tribal sovereignty, and requested
that EPA not promulgate baseline WQS for Tribes who did not want to be
covered by a WQS baseline rule. Comments raised the need for baseline
WQS to accommodate regional tailoring, fish consumption rates
reflecting individual Tribes' consumption rates, inclusion of
protections for cultural and traditional uses, and reliance on
antidegradation policies to ensure protection of high quality waters.
States raised concerns about EPA's CWA authority and resources to
promulgate and effectively implement baseline WQS on Indian
reservations. States also commented that baseline WQS might differ from
neighboring states' standards and potentially affect upstream
dischargers.
On June 11, 2021, EPA sent a ``Notification of Consultation and
Coordination'' letter to all 574 federally recognized Tribes to
initiate a 90-day pre-proposal Tribal consultation and coordination
period that began on June 15, 2021, and ended on September 13, 2021. In
addition to two national Tribal listening sessions, EPA presented at 16
meetings with Tribal staff and leadership, held four staff-level
coordination/engagement meetings, and held four government-to-
government meetings. EPA continued outreach and engagement with Tribes
at national and regional Tribal meetings after the end of the
consultation period. For more information on the comments raised during
these meetings and the comment letters received, please refer to EPA's
Summary Report of Tribal Consultation and Coordination for the Proposed
Rule: Federal Baseline Water Quality Standards for Indian Reservations
available in the docket associated with this rulemaking. In addition,
on September 15, 2021, EPA consulted with state representatives from
the Association of Clean Water Administrators (ACWA) to hear their
initial views on the proposed regulatory changes. Participants raised
questions about EPA's implementation of baseline WQS under the CWA,
EPA's prioritization of Tribes obtaining TAS to administer their own
WQS programs, the ability of baseline WQS to be tailored to reflect
regional and location-specific information, and how EPA would reconcile
differences between downstream Federal baseline WQS and upstream state
WQS.
This proposed rule builds upon the prior initiatives and the
comments and feedback provided to date which directly inform the
baseline WQS articulated in this proposed rule.
D. EPA's Authority for Establishing Baseline Water Quality Standards
Section 303(c)(4)(B) of the CWA provides that the Administrator
shall promptly prepare and publish proposed regulations setting forth a
revised or new WQS for the navigable waters in any case where the
Administrator determines that a revised or new standard is necessary to
meet the requirements of the CWA. As explained in section III.C. of
this preamble, in 2001 the EPA Administrator made an Administrator's
Determination that new or revised WQS are necessary for certain Indian
country waters.
EPA is not proposing to amend the Administrator's Determination.
This remains the source of authority for EPA's proposal of WQS for
Indian country waters that lack such standards. As explained further
below in section IV.B of this preamble, this proposed rule would
effectuate a significant portion of that Determination, recognizing
that Tribes' individual circumstances may vary and focusing initially
on Indian reservation waters where EPA and the relevant Tribes agree
that baseline WQS are appropriate at this time. This approach would
ensure that the Tribes themselves have a role in determining the
application of this rule, so that EPA may appropriately target
resources to those Indian reservation waters where the agency and the
Tribes determine the need for baseline WQS is most pressing. EPA will
continue to monitor the development of WQS for Indian reservation
waters and consider future action to effectuate the remainder of the
Determination. This is discussed further in section IV.B of this
preamble.
IV. Where the Proposed Baseline Water Quality Standards Would Apply
A. Waters to Which the Baseline Water Quality Standards Would Apply and
Waters That Would be Automatically Excluded
EPA is proposing to promulgate baseline WQS for all waters of the
United States in Indian country, with the following automatic
exclusions:
(1) The baseline WQS would not apply to Indian reservation
waters for which EPA has promulgated other Federal WQS. Currently,
EPA has promulgated WQS for only one Tribe, the Confederated Tribes
of the Colville Reservation (see 40 CFR 131.35). If EPA were to
promulgate other Federal WQS for other Tribes in the future,
consistent with applicable regulations, that rulemaking would result
in the new Federal WQS being CWA-effective, rather than the baseline
WQS.
(2) The baseline WQS would not apply to Indian reservation
waters where EPA has explicitly found that a state has jurisdiction
to adopt WQS or authorized a Tribe to adopt WQS pursuant to the TAS
regulation and where EPA has approved the applicable state or Tribal
WQS. As mentioned previously, 47 Tribes have adopted WQS approved by
EPA and there are four instances where EPA found states have
jurisdiction to administer WQS under the CWA on reservations or
parts of reservations.
(3) The baseline WQS would not apply to Indian country waters in
off-reservation allotments or dependent Indian communities (DICs),
which are included in the definition of Indian country under 18
U.S.C. 1151.
[[Page 29501]]
The first two exclusions flow directly from the Administrator's
Determination, excerpted in section III.C of this preamble, where the
agency explicitly found that standards are not necessary for Indian
country waters where EPA has (1) promulgated other Federal water
quality standards, or (2) found that a state or Tribe has jurisdiction
to adopt WQS and EPA has approved the applicable state or Tribal WQS.
The third exclusion also flows from the Administrator's
Determination, which excepted off-reservation allotments from the scope
of the Determination. EPA believes that the third exclusion, which also
adds an exception for DICs, is warranted because of the infeasibility
of covering these waters at this time. As noted in section II.A of this
preamble, Indian country includes ``allotments,'' which are lands held
in trust by the Federal Government or under a restriction on alienation
for the benefit of individuals. Allotments may be within the boundaries
of a Tribe's reservation, and thus subject to this proposed rule along
with other Indian reservation waters,\14\ or outside of a Tribe's
reservation boundaries. There are likely many thousands of off-
reservation allotments, many of which are scattered throughout the
United States. The Department of the Interior's Bureau of Indian
Affairs and Bureau of Land Management are in the process of identifying
and locating off-reservation allotments in several geographical areas
around the country. Until this information is confirmed, EPA is
concerned that it would not be practical to ensure uniform
implementation of the baseline WQS and would ensure that persons
affected by this proposed rule have a meaningful opportunity to comment
and engage in the process. Thus, EPA is not currently considering a new
Administrator's Determination regarding off-reservation allotments.\15\
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\14\ As explained in section II.A of this preamble, Indian
reservation refers to both formal reservations and Tribal trust
lands.
\15\ The Administrator's Determination, see section III.C of
this preamble, explicitly carved out off-reservation allotments due
to ``gaps in information regarding such allotments[.]'' [Federal
Water Quality Standards for Indian Country and Other Provisions
Regarding Federal Water Quality Standards. 2001: https://19january2017snapshot.epa.gov/sites/production/files/2016-08/documents/federal_wqs_for_indian_country_proposal_signed_1-18-01.pdf].
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As noted in section II.A. of this preamble, the definition of
Indian country also includes ``dependent Indian communities'' (DICs).
While the term ``dependent Indian communities'' is not further defined
in the statutory definition of Indian country, the Supreme Court has
held that the term dependent Indian communities ``refers to a limited
category of Indian lands that are neither reservations nor allotments,
and that satisfy two requirements--first, they must have been set aside
by the Federal Government for the use of the Indians as Indian land;
second, they must be under Federal superintendence.'' Alaska v. Native
Village of Venetie, 118 S. Ct. 948 (1998). Given the lack of
information regarding the location of dependent Indian communities, the
application of baseline standards to these areas at this time raises
similar implementation concerns as allotments. As explained further in
section IV.B of this preamble, in this proposed rule the agency is
acting on a significant portion of a nationwide Administrator's
Determination and has chosen to focus this initial effort on waters
where the agency is best positioned to implement the baseline WQS in
collaboration with Tribal partners. Thus, the agency is not currently
proposing new or revised WQS for DICs.
EPA invites comment on the automatic exclusions included in the
proposal. EPA specifically invites comment on whether dependent Indian
communities should be excluded and whether EPA's concerns, outlined
above, are warranted.
B. Additional Option for Case-by-Case Exclusions From Application of
the Baseline Water Quality Standards
Section 131.XX(a)(4) of the proposed rule enables the Regional
Administrator to exclude additional waters on a case-by-case basis
informed by consultation with Tribes. The Administrator's Determination
explicitly excluded waters where ``the Tribe and/or EPA has or intends
to develop a plan for establishing water quality standards under the
Clean Water Act within a reasonable time.'' Thus, in this proposed
rule, consistent with the Administrator's Determination, the agency is
providing that Tribes may seek exclusion from coverage due to ongoing
efforts toward establishing WQS. In addition, EPA is providing an
option for Tribes to seek exclusion from coverage in the absence of
such a plan to establish WQS at this time, upon approval by the
relevant EPA Regional Administrator. As noted above, in this proposed
rule the agency has chosen to focus this initial effort on Indian
reservation waters where Tribes are best positioned to work with the
agency to implement WQS.
Although it is important that WQS be established for all Indian
reservation waters currently lacking WQS effective under the CWA, EPA
recognizes that Tribes' individual circumstances may vary. After
consulting over many years with Tribes, and most recently engaging in
coordination and consultation with Tribes to inform this proposal (see
EPA's Summary Report of Tribal Consultation and Coordination for the
Proposed Rule: Federal Baseline Water Quality Standards for Indian
Reservations available in the docket associated with this rulemaking),
EPA understands that, while some Tribes are presently working toward
seeking TAS for WQS and/or the adoption of WQS for submittal to EPA,
other Tribes may not be in a position to do so at this time. EPA also
recognizes that some Tribes may need additional time to gather more
information about baseline WQS and prepare for the partnership
opportunities the WQS would afford.
To accommodate these considerations, EPA is proposing to allow
Tribes to work with the appropriate Regional Administrator to seek an
exclusion from the applicability of baseline WQS under this rule. This
approach is consistent with the exception in the Administrator's
Determination for Tribes that have a plan in place for establishing WQS
for EPA approval or are working on a plan and do not yet have EPA-
approved WQS for EPA in effect. Specifically, Tribes with such a plan
in place or that are working on a plan are not subject to the
Administrator's Determination. Similar to its approach to DICs, the
agency is proposing to add an exception for coverage under this
proposed rule to allow for potential exclusion from coverage for Tribes
that do not yet have EPA-approved WQS but demonstrate to the Regional
Administrator that baseline WQS are not consistent with Tribal
priorities at this time. This approach would ensure that the Tribes
themselves have a role in determining the application of this rule.
Allowing Tribes to be excluded from applicability of the baseline WQS
at this time will also enable EPA staff to appropriately target current
resources toward working with those Tribes that are ready to partner
with EPA in implementing baseline WQS in the near term. EPA will
continue to work with those Tribes that are excluded from coverage at
this time on ensuring that water quality on their Indian reservations
is protected consistent with the CWA.
To seek exclusion from the scope of coverage of the baseline WQS
rule, a Tribe should communicate with the Regional Administrator,
explaining the basis of the Tribes' request to be excluded from
coverage at this time and providing any supporting information,
including, where applicable, plans for
[[Page 29502]]
developing WQS and the associated timeline for doing so. The timeframe
for a Tribe seeking to be excluded to communicate to the Regional
Administrator begins upon publication of this proposed rule in the
Federal Register and ends no later than 90 days after the final rule is
published in the Federal Register. See the discussion of the effective
date of the final rule in section VIII of this preamble.
The Regional Administrator, informed by consultation with the
Tribe, would approve or disapprove a Tribe's exclusion from the
baseline WQS rule. In making a decision regarding exclusion from the
initial coverage of the baseline standards, in the absence of a plan to
develop Tribal CWA-effective WQS, the Regional Administrator would
consider the impacts that exclusion from the baseline WQS rule would
have on reservation water quality, including potential impacts to
overburdened communities. The Regional Administrator would document the
decision for the record.
Under this proposed rule, EPA would maintain a publicly available
list, on a dedicated website, of all Tribes with Indian reservations
for purposes of this proposed rule and would indicate which of those
Tribes are covered by baseline WQS, which are excluded from coverage at
this time, and which Tribes already have CWA-effective WQS in place.
A Tribe whose waters are excluded from baseline WQS coverage under
the option described above may at any later time request the Regional
Administrator to rescind the exclusion. Rescinding the exclusion will
result in baseline WQS becoming applicable for waters of the Tribe. The
Regional Administrator would document this decision for the record, and
the Tribe would be listed as covered by baseline WQS on the website
above.
EPA invites comments on the above proposed approach for EPA to
allow exclusions from coverage by the baseline WQS.
V. Proposed Baseline Water Quality Standards
The CWA specifies that WQS shall protect public health or welfare,
enhance the quality of water, and serve the purposes of the Act. To
``serve the purposes of the Act'' (as defined in sections 101(a)(2),
and 303(c) of the Act), WQS must provide, wherever attainable, water
quality for the protection and propagation of fish, shellfish, and
wildlife, and recreation in and on the water, and must consider the use
and value of the waters for those uses and for public water supplies,
industrial purposes, and navigation. (40 CFR 131.2). Per 40 CFR
131.22(c), when EPA promulgates WQS, it is subject to the ``same
policies, procedures, analyses, and public participation requirements
established for States in these regulations.'' The following sections
describe the designated uses, water quality criteria, antidegradation
implementation methods, and certain other WQS provisions that EPA
proposes to promulgate as the applicable baseline WQS for the Indian
reservation waters discussed in section IV of this preamble.
Consistent with the EPA Policy on Consultation and Coordination
with Indian Tribes,\16\ the proposed rule would require the Regional
Administrator to initiate Tribal consultation with a Tribe(s) when
taking actions under this proposed rule that may affect Tribal
interests. See proposed 40 CFR 131.XX(b). That is, the Regional
Administrator would notify the Tribe(s) of the opportunity for
government-to-government consultation when taking actions under the
baseline WQS rule.
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\16\ The EPA Policy on Consultation and Coordination with Indian
Tribes (https://www.epa.gov/sites/default/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf) applies to agency
actions and decisions that ``may affect tribal interests.'' Under
Executive Order 13175 (Consultation and Coordination with Indian
Tribal Governments) agencies must have an accountable process to
ensure meaningful and timely input by tribal officials in the
development of regulatory policies that ``have substantial direct
effects on one or more Indian tribes, on the relationship between
the Federal Government and Indian tribes, or on the distribution of
power and responsibilities between the Federal Government and
Tribes.'' See Section XI.F of this preamble for a discussion of E.O.
13175.
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EPA defines consultation in its 2011 EPA Policy on Consultation and
Coordination with Indian Tribes as ``a process of meaningful
communication and coordination between EPA and tribal officials prior
to EPA taking actions or implementing decisions that may affect
tribes.'' As a process, consultation includes several methods of
interaction that may occur at different levels. The appropriate level
of interaction is determined by past and current practices, policy
adjustments, the continuing dialogue between EPA and Tribal
governments, and program and regional office consultation procedures
and plans. EPA would seek information and input regarding
implementation of baseline WQS in accordance with the 2011 EPA Policy
on Consultation and Coordination with Tribes, the 2016 EPA Policy on
Consultation and Coordination with Indian Tribes: Guidance for
Discussing Tribal Treaty Rights,\17\ applicable EPA regional
consultation procedures,\18\ or any other applicable EPA Tribal
consultation policies in effect at the time the proposed rule would be
applied. EPA would consider all relevant information obtained through
consultation to help ensure that EPA is fully informed before taking a
WQS action for Tribes covered by the final baseline WQS rule.
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\17\ Available online at https://www.epa.gov/tribal/epa-policy-consultation-and-coordination-indian-tribes-guidance-discussing-tribal-treaty.
\18\ Available online at https://www.epa.gov/tribal/forms/consultation-and-coordination-tribes.
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EPA would attempt to honor consultation requests from Tribal
governments considering the nature of the activity, past consultation
efforts, available resources, timing considerations, and all other
relevant factors. EPA would generally agree to consult when such a
request for consultation is made by a Tribal government, assuming the
proposed action may affect the Tribe.
If a Tribe wishes to consult, EPA would follow the EPA Policy on
Consultation and Coordination with Indian Tribes, and consultation
procedures established by the relevant EPA regional office. If a Tribe
declines consultation or prefers coordination without government-to-
government consultation, the EPA Region would document this in the file
associated with the Regional Administrator's action and consultation
efforts would be concluded. If the Tribe does not respond, and
reasonable efforts to reach out to the Tribe are unsuccessful, the EPA
Region would document this in the file associated with the action and
would conclude efforts to initiate consultation. Even if the EPA Region
concludes such efforts without government-to-government consultation,
EPA will nonetheless consider the potential interests of the Tribe, as
well as EPA's responsibilities under the CWA, in its decision-making,
pursuant to the general trust relationship and other policies.
A. Proposed Baseline Designated Uses
EPA's WQS regulation at 40 CFR part 131 requires states and
authorized Tribes to specify appropriate water uses to be achieved and
protected (40 CFR 131.10(a)). These uses are referred to as
``designated uses'' and defined at 40 CFR 131.3(f) as designated uses
specified in WQS for each water body or segment whether or not they are
being attained. Designated uses establish, and communicate to the
public, the environmental management objectives and water quality goals
for a
[[Page 29503]]
state or authorized Tribe's waters. Clear and accurate designated uses
are essential to meet the ultimate objective of CWA section 101(a) to
restore and maintain the chemical, physical, and biological integrity
of the Nation's waters.
The CWA distinguishes between two broad categories of uses: uses
specified in section 101(a)(2) of the Act and uses specified in section
303(c)(2) of the Act. The national goal in CWA section 101(a)(2) is
water quality that provides for the protection and propagation of fish,
shellfish, and wildlife and for recreation in and on the water
``wherever attainable.'' CWA section 303(c)(2)(A) also requires states
and authorized Tribes to establish WQS ``taking into consideration
their use and value'' for a number of purposes, including those
addressed in section 101(a)(2) of the Act.
The term ``uses specified in section 101(a)(2) of the CWA'' as used
in EPA's WQS regulations, refers to uses, including subcategories of
uses, that provide for the protection and propagation of fish
(including aquatic invertebrates), shellfish, and wildlife, and
recreation in and on the water.\19\ In addition, EPA interprets CWA
section 101(a)(2) to refer not only to protecting water quality so that
fish and shellfish and other aquatic life thrive, but also to
protecting aquatic life as a food source.\20\ EPA defines ``non
101(a)(2) uses'' as those uses that are not related to the protection
or propagation of fish, shellfish, wildlife, or recreation in or on the
water (see 40 CFR 131.3(q)). These uses include public water supply,
agricultural activity, industrial activity, and navigation which are
listed in CWA section 303(c)(2)(A) but not in CWA section 101(a)(2).
The CWA requires that states and authorized Tribes take all of the uses
listed in CWA section 303(c)(2)(A) into consideration when designating
uses, but their uses must include 101(a)(2) uses unless the State or
authorized Tribe demonstrates that such uses are unattainable. 40 CFR
131.10(j).
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\19\ 80 FR 51024, August 21, 2015. Preamble to the final Water
Quality Standards Regulatory Revisions, 2015.
\20\ 80 FR 51024, August 21, 2015. Preamble to the final Water
Quality Standards Regulatory Revisions, 2015.
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Consistent with CWA section 101(a)(2) and EPA's regulation at 40
CFR 131.10, EPA proposes to promulgate the following designated uses
for Indian reservation waters consistent with section 101(a)(2). Water
quality must provide for:
Aquatic Life: Protection and propagation of fish,
shellfish, and wildlife, which includes protection of the health of
human consumers of fish, shellfish, and other aquatic life.
Primary Contact Recreation: Provides for recreation in and
on the water.
Since 1983, EPA's WQS regulation at 40 CFR 131.10(j) and (k) has
required that WQS protect CWA section 101(a)(2) uses unless states and
authorized Tribes demonstrate that those uses are infeasible to attain
through a use attainability analysis (UAA) consistent with 40 CFR
131.10, effectively creating a rebuttable presumption of
attainability.\21\ If a state or authorized Tribe adopts designated
uses other than the uses specified in section 101(a)(2) of the Act, it
must document how its consideration of the use and value of water for
those uses appropriately supports the state's action (Sec. 131.10(a)).
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\21\ EPA's 1983 regulation and ``the rebuttable presumption
stemming therefrom'' have been upheld as a ``permissible
construction of the statute'' (Idaho Mining Association v. Browner,
90 F. Supp. 2d 1078, 1097-98 (D. Idaho 2000)). Also refer to, Water
Quality Standards Regulatory Revision (80 FR 51019, p. 51024 and FN
12), August 21, 2015.
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During the Tribal consultation process, many Tribes stressed the
value and importance of protecting water quality at levels appropriate
for use in various cultural and traditional activities of individual
Tribes. CWA section 303(c)(2)(A) provides that uses are to protect the
``public health or welfare'' and consider a water body's use and value
for various enumerated and other purposes.\22\ Cultural and traditional
uses serve to protect the health and welfare of Tribal members
exercising such uses and are thus within the purposes enumerated in the
Act. EPA proposes to promulgate an explicit cultural and traditional
designated use as part of the baseline WQS to ensure full protection of
such uses. Accordingly, the baseline WQS would contain a third
designated use in addition to the two described above:
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\22\ CWA section 303(c)(2)(A): Such standards shall be such as
to protect the public health or welfare, enhance the quality of
water and serve the purposes of this chapter. Such standards shall
be established taking into consideration their use and value for
public water supplies, propagation of fish and wildlife,
recreational purposes, and agricultural, industrial, and other
purposes, and also taking into consideration their use and value for
navigation.
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Cultural and traditional uses: Protection of cultural and
traditional uses of reservation waters.
EPA is not proposing to define cultural and traditional uses in
more detail in this rule because they can include a variety of uses
specific to the ceremonies and traditions of each Tribe, and each use
may require different levels of protection. For example, when
developing NPDES permit limits, a separate limit may not be necessary
to protect full body immersion in the water or fishing-related cultural
or traditional practices, if the limit to protect the primary contact
recreation use is sufficient. However, practices that require
protection of aquatic plants used for basket weaving, for example, may
not be adequately covered by an aquatic life use or its protective
criteria. Further, Tribal treaty or other reserved rights to fish,
hunt, and/or gather on Indian reservations could generally be protected
by such cultural and traditional designated uses, to the extent they
are not protected by an aquatic life use or primary contact recreation
use.
EPA is considering whether to promulgate any non-101(a)(2) uses,
such as public water supply use, agricultural use, or industrial use,
for all waters covered by this baseline WQS rule in light of the
requirements of 303(c) and 40 CFR 131.10(a). Specifically, EPA is
soliciting comment on whether EPA should designate a public water
supply use for all Indian reservation fresh waters \23\ covered by the
scope of this rule or whether this use is best addressed by allowing
Tribes to request such a designation, as explained below. Many states
have established such a use on large numbers of their water bodies, and
EPA anticipates that many Tribes may similarly desire such a use to be
designated on some or most of their waters to help protect public water
supply sources. However, an important consideration is that designating
a public water supply use for all Indian reservation waters in this
rule without accounting for local considerations could result in a
designation on a water body where such a use is not appropriate (e.g.,
waters that may not have enough flow to support public water supply
uses).
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\23\ Waters in which the salinity is equal to or less than 1
part per thousand 95% or more of the time. Model Water Quality
Standards Template for Waters on Indian Reservations, June 2020.
https://www.epa.gov/wqs-tech/water-quality-standards-tools-tribes#tab3.
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If EPA does not promulgate a public water supply use for all Indian
reservation fresh waters covered by the final baseline WQS rule, a
Tribe may subsequently request the Regional Administrator designate a
public water supply use for its reservation water bodies if available
information indicates that (1) there is use and value for such a use
and (2) it is thus appropriate to be designated after this rule becomes
effective. Conversely, if EPA were to promulgate a public water supply
use for all Indian reservation waters covered by the final baseline WQS
rule, a Tribe
[[Page 29504]]
could subsequently request that the Regional Administrator remove such
a designation, consistent with 40 CFR 131.10(a) and (k)(3), from
specific waters if information is available indicating that (1) there
is no use and value for such a designated use; and (2) it is not an
appropriate designated use.
EPA recognizes that the designated uses proposed in this rule may
not be attainable in all Indian reservation waters because of Tribe-
specific or site-specific factors. In such circumstances, EPA is
proposing a process to subsequently revise designated uses (or
establish WQS variances) in the future or add additional designated
uses consistent with EPA's WQS requirements. Discussion of a Federal
administrative procedure for a Regional Administrator to revise
baseline designated uses for specific Indian reservation water bodies
is provided in section VI of this preamble.
EPA invites comments on the proposed designated uses. Specifically,
EPA requests comments on establishing an aquatic life use and primary
contact recreation use consistent with CWA section 101(a)(2) for all
Indian reservation waters covered by the final baseline WQS rule. EPA
also requests comments on the explicit inclusion of a cultural and
traditional designated use. Additionally, EPA requests comments on
whether to include any of the designated uses specified in CWA section
303(c)(2)(A) but not included in CWA section 101(a)(2) such as public
water supply use, agricultural use, or industrial use for all Tribal
reservation waters identified for coverage under this baseline WQS
proposed rule.
B. Proposed Baseline Water Quality Criteria
1. Overview of Water Quality Criteria in Standards
EPA's WQS regulation at 40 CFR 131.11 requires states and
authorized Tribes to adopt water quality criteria that protect
designated uses. These criteria must be based on sound scientific
rationale, must contain sufficient parameters to protect the designated
use, must support the most sensitive use where multiple use
designations apply, and may be expressed in either narrative or numeric
form. (See 40 CFR 131.11(a) and (b)) Special requirements apply to
priority pollutants as discussed below. Narrative criteria are
qualitative descriptions of the conditions necessary to protect a water
body's designated use, while numeric criteria--expressed as levels,
concentrations, toxicity units or other values--are quantitative
descriptions of those conditions. Narrative criteria accompanied by
binding translation procedures, as part of the water quality standards,
provide a basis for determining case-specific numeric values to protect
the applicable designated use. Both narrative and numeric criteria
provide a basis for the development of NPDES permit limits, water
quality assessments, and other CWA purposes.
CWA section 304(a)(1) requires EPA to develop and publish, and from
time-to-time update, recommended criteria for water quality accurately
reflecting the latest scientific knowledge regarding concentrations of
specific chemicals or levels of parameters in water that protect
aquatic life and human health. These recommended criteria are based on
sound scientific rationale to protect 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
concentrations in ambient water.
CWA section 304(a)(2) requires EPA to develop and publish, and from
time-to-time update, information on the factors necessary to restore
and maintain the chemical, physical, and biological integrity of all
navigable waters and the factors necessary for the protection and
propagation of shellfish, fish, and wildlife for classes of receiving
waters and to allow recreation in and on the water.
States and authorized Tribes should establish numeric criteria
based on EPA's recommended 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)(1). EPA's
regulation at 40 CFR 131.11(b)(2) provides that states and authorized
Tribes should establish narrative criteria where numeric criteria
cannot be determined or to supplement numeric criteria. EPA must comply
with these requirements when it promulgates Federal WQS (40 CFR
131.22(c)).
CWA section 303(c)(2)(B) requires states to adopt numeric criteria,
where available, for all toxic pollutants listed pursuant to CWA
section 307(a)(1) for which EPA has published CWA section 304(a)
criteria, as necessary to support the states' and authorized Tribes'
designated uses. ``Priority toxic pollutants'' are identified in 40 CFR
part 423, appendix A--126 Priority Pollutants. As articulated in EPA's
guidance \24\ that addresses the adoption of criteria for priority
toxic pollutants in WQS, one approach to meet this requirement includes
adopting a procedure for applying a narrative WQS provision that
prohibits toxicity in receiving waters. Such a procedure would be used
in calculating derived numeric values, which are to be used for all
purposes under CWA section 303(c). At a minimum, states and authorized
Tribes must develop numeric values for CWA section 307(a) toxic
pollutants for which EPA has published CWA section 304(a) criteria
where these pollutants are discharged or present in the affected waters
and could reasonably be expected to interfere with designated uses.
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\24\ Transmittal of Final ``Guidance for State Implementation
for Water Quality Standards under CWA section 303(c)(2)(B).''
December 1988. https://www.epa.gov/sites/production/files/2014-10/documents/cwa303c-hanmer-memo.pdf.
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As discussed in more detail below, EPA proposes narrative criteria
with binding numeric translation procedures designed as the applicable
WQS to protect the proposed designated uses for Indian reservation
waters covered by a final rule. EPA would use these procedures to
translate the narrative criteria into numeric values on a case-by-case
basis to best reflect site-specific conditions and consideration of new
and/or available information representing the latest sound science as
discussed in more detail below. These procedures would be used for all
purposes under CWA section 303(c) as necessary to protect the
applicable designated uses. Although not specifically required for non-
priority pollutants, providing the same information for those other
pollutants is helpful toward meeting the CWA goals and increasing
transparency for stakeholders.
2. EPA's Proposed Approach for Baseline Water Quality Criteria
This rulemaking proposes to establish CWA-effective WQS for waters
on more than 250 Indian reservations nationwide where EPA is the
primary CWA implementing authority. The baseline criteria would provide
scientifically sound criteria, protect the applicable designated uses,
and enable an appropriate degree of customization to best account for
site-specific conditions and water attributes of importance to
individual Tribes.
Consistent with the requirements of the CWA and EPA's regulation at
40 CFR part 131, EPA proposes to establish the narrative water quality
criteria in proposed 40 CFR 131.XX(d)(1) to protect the applicable
baseline
[[Page 29505]]
designated uses proposed in this rule and discussed in section V.A of
this preamble. The proposed narrative criteria are as follows:
1. All waters shall be free from toxic, radioactive,
conventional, non-conventional, deleterious or other polluting
substances in amounts that will prevent attainment of the applicable
baseline designated uses;
2. All waters shall be free from adverse impacts to the
chemical, physical or hydrologic, or biological integrity caused by
pollutants or pollution that prevent the attainment of applicable
designated uses;
3. All waters shall be free from substances attributable to
wastewater or other discharges that:
A. Settle to form objectionable deposits;
B. Float as debris, scum, oil, or other matter to form
nuisances;
C. Produce objectionable color, odor, taste, or turbidity; or
D. Produce undesirable or nuisance aquatic life.
4. All waters shall be free from conditions that would likely
jeopardize the continued existence of any threatened or endangered
species listed under the Federal Endangered Species Act or result in
the destruction or adverse modification of such species' critical
habitat.
5. All waters shall maintain a level of water quality at their
pour points to downstream waters that provide for the attainment and
maintenance of the water quality standards of those waters,
including the waters of another state or a federally recognized
Tribe.
For the first proposed element of the baseline narrative criteria
under 1., the term ``polluting substances'' includes ``pollutants'' as
defined in CWA section 502(6) and 40 CFR 122.2. The statute defines
``pollutant'' broadly to include dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discharged equipment, rock, sand, cellar dirt and
industrial, municipal, or agricultural waste discharged into water. CWA
section 502(6). For regulatory purposes, pollutants are grouped into
conventional, toxic, and nonconventional pollutant categories under the
National Pollutant Discharge Elimination System (NPDES) program:
Conventional pollutants are those defined in CWA section 304(a)(4)
and 40 CFR 401.16 (5-day biochemical oxygen demand, total suspended
solids, fecal coliform, pH, and oil and grease).
Toxic (priority) pollutants are those defined in CWA section
307(a)(1) (and listed in 40 CFR 401.15 and appendix A of 40 CFR part
423) and include 126 metals and predominately manmade organic
compounds.
Nonconventional pollutants are those that do not fall under either
of the above categories (conventional or toxic pollutants) and include
parameters such as chlorine, ammonia, nitrogen, phosphorus, dissolved
oxygen, temperature, chemical oxygen demand (COD), and whole effluent
toxicity (WET).\25\
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\25\ See https://www.epa.gov/sites/default/files/2015-09/documents/pwm_chapt_01.pdf.
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The second proposed element of the baseline narrative criteria
under 2. relates to adverse impacts, caused by pollutants or pollution,
to the chemical, physical or hydrologic, or biological integrity of the
waters covered under this proposed rule. The term ``pollution'' is
defined in CWA section 502(19) as the man-made or man-induced
alteration of the chemical, physical, biological, and radiological
integrity of water.
Chemical characteristics of waterbodies include values for
parameters such as ions, hardness, pH, and dissolved organic carbon
(DOC).
Physical and hydrologic characteristics and physical habitat of
waterbodies, in the broad sense, include all those structural
attributes that influence or provide sustenance to organisms within the
water body, including the characteristic pattern of flow magnitude,
timing, duration, frequency, and rate of change of a water
body.26 27 Hydrology and habitat play a central role in
supporting the chemical, physical, and biological integrity of streams
and rivers and the services they provide. In addition, those
characteristics are critical for addressing resiliency of watersheds in
the face of climate change. EPA recognizes that Tribes are
disproportionately vulnerable to the impacts of climate change, due in
part to their dependence on specific geographic areas for their
livelihoods; unique cultural, economic and political characteristics;
and limited resources to prepare for, respond to and recover from
climate-related hazards.\28\ There is a strong need to develop
adaptation strategies in partnership with Tribes that promote
sustainability and reduce the impact of climate change on Tribes.\29\
Observations, oral and written knowledge, innovations, practices, and
beliefs developed by Tribes through interaction and experience with the
environment contributes to the scientific, technical, social, and
economic advancements of the United States and our collective
understanding of the natural world. This knowledge should be fully
integrated into the adaptation strategies. Adaptive capacity, or the
ability of a stream ecosystem to withstand climate-driven stresses, may
be seen in rivers whose flow patterns more closely resemble the natural
flow regime.\30\
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\26\ Consolidated Assessment and Listing Methodology, USEPA,
July 2002.
\27\ USGS-EPA Technical Report: Protecting Aquatic Life from
Effects of Hydrologic Alteration, also called the Hydrologic
Criteria Technical Document. 2016.
\28\ See https://www.epa.gov/system/files/documents/2021-09/epa-climate-adaptation-plan-pdf-version.pdf.
\29\ See https://www.epa.gov/sites/default/files/2016-04/documents/ow-climate-change-adaptation-plan.pdf.
\30\ USGS-EPA Technical Report: Protecting Aquatic Life from
Effects of Hydrologic Alteration, also called the Hydrologic
Criteria Technical Document. 2016.
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Biological characteristics of water bodies include the ability of
an aquatic ecosystem to support and maintain a balanced and indigenous
community of organisms having species composition, diversity,
population densities, and functional organization similar to that of
reference conditions.
The third proposed element of the baseline narrative criteria under
3. relates specifically to the discharge of substances that adversely
affect the waters covered by this proposed rule. This element includes
provisions that would prohibit the discharge of substances that would
limit the enjoyment or utility of these waters.
The fourth proposed element of the baseline narrative criteria
under 4. would prohibit conditions that would likely jeopardize
endangered or threatened species that are listed under the Endangered
Species Act or result in the destruction or adverse modification of
such species' critical habitat.
The fifth proposed element of the baseline narrative criteria under
5. would require that all waters maintain a level of water quality at
their pour points to downstream waters that provide for the attainment
and maintenance of the water quality of downstream waters of those
waters, including the waters of another state or a federally recognized
Tribe. In this context, ``pour points'' refers to the points of entry
into downstream water bodies. Pursuant to CWA sections 303 and 101(a),
the Federal regulation at 40 CFR 131.10(b) requires that upstream WQS
ensure the attainment and maintenance of downstream WQS.
The rationale for establishing a downstream protection narrative
criterion is described in an EPA guidance document entitled
``Protection of Downstream Waters in Water Quality Standards:
Frequently Asked Questions (June 2014).'' In that document, EPA
interprets the term ``downstream'' to include both intra- and
interstate waters, as well as waters that form a boundary between
adjacent
[[Page 29506]]
jurisdictions. The document highlights that designated uses and water
quality criteria that ensure attainment and maintenance of downstream
WQS (1) help to avoid situations where downstream segments become
impaired due, either in part or exclusively, to pollution source(s)
located in upstream segments; (2) may help support more equitable use
of any assimilative capacity available to upstream and downstream
pollution sources and/or jurisdictions and may facilitate restoration
of the downstream waters; and (3) prevents the shifting of
responsibility for pollution reductions from upstream sources and/or
jurisdictions to downstream sources and/or jurisdictions.
The document further notes that state and Tribal designated uses
and criteria that protect downstream waters may increase the resiliency
of the United States' waters to climate change and may help address
environmental justice issues in urban waters. In addition, designated
uses and criteria that ensure attainment and maintenance of downstream
WQS facilitate consistent and efficient implementation and coordination
of water quality-related management actions (e.g., water quality
monitoring and assessment, development of TMDLs; watershed-based
restoration and protection plans; NPDES permitting; and CWA section 401
certifications).
EPA invites comments on the proposed narrative water quality
criteria.
3. Proposed Numeric Translation Procedures
EPA is proposing binding numeric translation procedures as part of
the baseline WQS that would be used to develop numeric values, or
``translations,'' of the narrative criteria in local situations to
protect the applicable designated uses. Specifically, the binding
numeric translation procedures in proposed 40 CFR 131.XX(d)(2) would
require the Regional Administrator to use the procedures as necessary
to derive numeric translations for specific water bodies as needed for
all purposes under the CWA. As such, these translations would occur
during CWA implementation and would comply with public participation
requirements of applicable CWA implementation programs. EPA has
included the words ``as necessary'' to recognize not only that numeric
values may be needed for different parameters in different
circumstances, in accordance with EPA regulations, but also to reflect
variations in the way criteria are applied in different CWA
implementation programs.
a. Proposed Numeric Translation Procedures and Derivation of Numeric
Values
The proposed numeric translation procedures are provided in 40 CFR
131.XX(d)(2) of the proposed rule. The five options established under
the procedures are summarized in Table 1 of this preamble below.
Table 1--Summary of Proposed Procedures for EPA To Translate Narrative
Criteria to Numeric Values
------------------------------------------------------------------------
------------------------------------------------------------------------
Option One
------------------------------------------------------------------------
For parameters for which EPA has Translate the baseline narrative
section 304(a) criteria criteria using EPA's national
recommendations. recommended water quality criteria
published under section 304(a).
------------------------------------------------------------------------
Option Two
------------------------------------------------------------------------
For parameters for which EPA has Translate the baseline narrative
section 304(a) criteria criteria using EPA's national
recommendations, and information recommended water quality criteria
and/or data are available that published under section 304(a) of
more accurately reflect site- the CWA modified to reflect site-
specific conditions. specific conditions and aquatic
communities based on a sound
scientific rationale, including EPA
published methodologies if
available, incorporating where
relevant:
A fish consumption rate
protective of Tribal fish consumers
or EPA's latest default fish
consumption rate, if appropriate,
or
Available ambient
monitoring data reflecting site-
specific water chemistry inputs,
or
Protective default water
chemistry inputs reflecting
published EPA guidance, where
available, or
Indigenous Knowledge,
often referred to as Traditional
Ecological Knowledge, as
appropriate, or
Other scientifically
defensible assessments, for
example, guidance published by
EPA regions, or those related to
Endangered Species Act
consultation.
------------------------------------------------------------------------
Option Three
------------------------------------------------------------------------
Where Tribal or state numeric Translate the baseline narrative
criteria are available (as criteria using numeric criteria
described at right) that are more available in:
appropriate, and for parameters WQS adopted by the Tribe
for which EPA does not have CWA but not yet CWA effective, or
section 304(a) criteria Applicable CWA-effective
recommendations. WQS in an adjacent or other
relevant state(s) or Tribe(s)
that are in either case based on a
sound scientific rationale, reflect
similar waterbody characteristics,
and ensure protection of the
applicable designated uses
established under this rule, taking
into consideration Indigenous
Knowledge, as appropriate.
------------------------------------------------------------------------
Option Four
------------------------------------------------------------------------
For waters of the Great Lakes Translate the baseline narrative
System. criteria using provisions of the
Water Quality Guidance for the
Great Lakes System (40 CFR part
132), where applicable, to ensure
that the translations are as
protective as required by 40 CFR
part 132.
------------------------------------------------------------------------
Option Five
------------------------------------------------------------------------
If none of the above options apply EPA may rely on existing CWA
or are available. implementation provisions to
translate applicable narrative
criteria, as necessary.
------------------------------------------------------------------------
Details regarding each of these options are as follows.
Option One. In translating the narrative criteria for specific
situations, the Regional Administrator could rely on EPA's current
national recommended CWA section 304(a) water quality criteria,\31\
where available, to set appropriate standards to ensure protection of
the applicable baseline designated uses. These water quality criteria
provide guidance for states and authorized Tribes in adopting WQS under
CWA section 303(c). They also provide guidance to EPA when promulgating
WQS.
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\31\ See Current Water Quality Criteria Tables at https://www.epa.gov/wqc.
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Option Two. The Regional Administrator could rely on Option Two if
information or data are available that more accurately reflect site-
specific
[[Page 29507]]
conditions. The second option of the binding translation procedure
provides that EPA would modify the CWA section 304(a) recommended
criteria to protect site-specific conditions based on a sound
scientific rationale, including EPA published methodologies, if
available, and, as appropriate, Indigenous Knowledge (IK), often
referred to as Traditional Ecological Knowledge (TEK), where consistent
with EPA's regulations and CWA statutory requirements,32 33
incorporating where relevant, but not limited to: (1) a fish
consumption rate protective of Tribal fish consumers or EPA's latest
default fish consumption rate, if appropriate, or (2) available ambient
monitoring data reflecting site-specific water chemistry inputs, or (3)
protective default inputs reflecting published EPA guidance where
available, or (4) other scientifically defensible assessments, for
example, those related to Endangered Species Act consultation.
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\32\ Guidance for Federal Departments and Agencies on Indigenous
Knowledge. https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf.
\33\ EPA Policy on Environmental Justice for Working with
Federally Recognized Tribes and Indigenous People (2014). https://www.epa.gov/sites/default/files/2017-10/documents/ej-indigenous-policy.pdf.
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This option provides that EPA may consider available data and
information concerning the physical, chemical, and biological quality
of the waters in Indian country and adjacent waters; scientifically
defensible technical and scientific information, including EPA
published methodologies, IK, as appropriate, ambient monitoring data
reflecting site-specific waterbody chemistry and any EPA technical and
regional guidance to inform those calculations; information regarding
Tribal treaty or other reserved rights to aquatic or aquatic-dependent
resources; and any EPA guidance on policy for, and implementation of,
the WQS program, including the Water Quality Standards Handbook.\34\
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\34\ EPA Water Quality Standards Handbook. https://www.epa.gov/wqs-tech/water-quality-standards-handbook.
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EPA has developed several procedures to derive site-specific
aquatic life criteria. The Recalculation Procedure accounts for
relevant differences between the sensitivities of the aquatic organisms
in the national dataset and the sensitivities of organisms that are
present at the site. For more information, refer to EPA's Revised
Deletion Process for the Site-specific Recalculation Procedure for
Aquatic Life Criteria (2013). For fixed and hardness-based metals
criteria (currently metals other than aluminum and copper), the Water-
Effect Ratio (WER) procedure accounts for relevant differences between
the toxicities of a metal in laboratory dilution water and in the site
water. In performing a WER, care must be taken to ensure that samples
and tests are representative of the potential conditions at a site,
such that the WER-derived criteria continue to be protective under
conditions when the metals are highly bioavailable. For more
information, refer to EPA's Interim Guidance on Determination and Use
of Water-Effect Ratios for Metals (1994) and Modifications to Guidance
Site-Specific Criteria (1997). EPA's national recommended CWA section
304(a) criteria for aluminum and copper both take site-specific water
chemistry into account, obviating the need for a separate procedure
like the WER.
During Tribal consultation, many Tribes expressed support for use
of appropriate fish consumption rates, one of the input parameters used
to calculate human health criteria, to reflect the true rate of
subsistence consumption by a Tribe. EPA recommends that Regional
Administrators calculating human health criteria select a fish
consumption rate based upon local data. Where sufficient data are
available, a fish consumption rate should be selected that reflects
consumption that is not suppressed by fish availability or concerns
about the safety of fish for human consumption. Regional Administrators
could rely on use of the ``Tribal/State Human Health Criteria
Calculator,'' \35\ available on EPA's website, to adjust EPA's CWA
section 304(a) human health criteria recommendations to reflect a
Tribe's fish consumption rate and selected cancer risk level.
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\35\ See https://www.epa.gov/wqs-tech/water-quality-standards-tools-tribes.
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In 2015, EPA revised 94 of the existing CWA section 304(a) human
health criteria recommendations to reflect the latest scientific
information, including updated exposure factors (body weight, drinking
water consumption rate, fish consumption rate), bioaccumulation
factors, and toxicity factors (reference dose, cancer slope factor).
The updated criteria follow EPA's current methodology for deriving
human health criteria (USEPA 2000).\36\ EPA's updated recommended fish
consumption rate (22 g/day) is protective of the general population of
fish consumers. EPA's national default subsistence value of 142 g/day
represents subsistence fishers whose daily consumption is greater than
the general population, as presented in EPA's 2000 Human Health
Methodology. A further discussion of fish consumption rates may be
found in the 2000 Human Health Methodology and EPA's 2016 Guidance for
Conducting Fish Consumption Surveys.
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\36\ Methodology for Deriving Ambient Water Quality Criteria for
the Protection of Human Health (2000), EPA-822-B-00-004, October
2000.
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When translating the narrative criteria to protect consumers of
fish, EPA would consult with the Tribe and determine the need for a
modified fish consumption rate in those cases where the Tribe or EPA
can support the modified rate with adequate scientifically defensible
data and information,\37\ or establish that Tribes rely on fish
consumption for subsistence (thereby justifying applying the 142 g/day
rate). Applicable treaty or other reserved fishing rights would inform
this determination. In those consultations, EPA would apply its
Guidance for Discussing Tribal Treaty Rights.\38\
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\37\ Guidance for Conducting Fish Consumption Surveys. 2016:
https://www.epa.gov/sites/default/files/2016-12/documents/guidance-fish-consumption-surveys.pdf.
\38\ EPA Policy on Consultation and Coordination with Indian
Tribes: Guidance for Discussing Tribal Treaty Rights. February 2016.
https://www.epa.gov/sites/default/files/2016-02/documents/tribal_treaty_rights_guidance_for_discussing_tribal_treaty_rights.pdf
.
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Option Three. The binding translation procedure allows the Regional
Administrator to utilize Option Three where appropriate. Specifically,
the Regional Administrator could utilize this option when WQS adopted
by the Tribe are not yet CWA effective, or CWA-effective WQS applicable
in an adjacent or other relevant state(s) or Tribe(s), are based on a
sound scientific rationale, reflect similar waterbody characteristics,
and ensure protection of the applicable designated uses, taking into
consideration IK, as appropriate.
EPA proposes Option Three to recognize the feedback received during
the Tribal consultation process. Many Tribes stressed the value and
importance of relying on existing Tribal WQS that, although not yet
EPA-approved, are based on a sound scientific rationale and could fill
gaps or provide more refined coverage than is available under Option
One or Two. Similarly, under Option Three, the Regional Administrator
could also rely on Tribal or state numeric criteria that are more
appropriate because, for example, they protect designated uses not
considered in Options One or Two or consider site-specific factors,
exposure routes, human health
[[Page 29508]]
endpoints, or other factors not considered in Option One or Two; or for
parameters for which EPA does not have CWA section 304(a) criteria
recommendations.
Option Four. The Regional Administrator would use the Water Quality
Guidance for the Great Lakes System (40 CFR part 132) (part 132
Guidance), where applicable, to translate the narrative criteria, as
defined in 40 CFR 132.2, to ensure appropriate protection of Great
Lakes waters. Both the Great Lakes provisions for water quality
criteria discussed here (proposed 40 CFR 131.XX(d)(2)(iv)) and the
broader requirements for baseline WQS decisions to be consistent with
40 CFR part 132 (proposed 40 CFR 131.XX(k)) are designed to reinforce
the requirements in CWA section 118(c)(2) that all WQS, antidegradation
policies, and implementation procedures within the Great Lakes system
must continue to be consistent with the 40 CFR part 132 Guidance.
Option Five. For those parameters without established CWA section
304(a) water quality criteria recommendations, the Regional
Administrator would follow Option Three or Option Four of the
translation procedures if applicable. In circumstances where none of
the first four options are applicable, Option Five provides that the
Regional Administrator would rely on existing CWA implementation
provisions to translate the baseline narrative criteria, where
necessary. For example, the Regional Administrator could rely on 40 CFR
122.44(d)(1)(vi)(A) and (C) for NPDES permitting purposes. This fifth
option would ensure consistency with the proposed requirement that the
Regional Administrator derive numeric translations of the baseline
narrative criteria for all purposes under CWA section 303(c) for
specific parameters to protect the applicable designated uses for
specific water bodies.
For all five options, when EPA translates the baseline narrative
criteria for CWA implementation purposes after the final baseline WQS
rule is in effect, the associated numeric values would be used for
purposes of developing CWA section 402 and 404 permits, section 303(d)
lists and TMDLs, and section 401 certifications, where applicable. In
each case, EPA would identify and explain the derived numeric values as
part of the public process associated with the respective CWA
implementation program. EPA would rely on the public participation
requirements associated with the respective CWA implementation programs
to provide for public review of any resulting numeric values. At its
discretion, a Regional Administrator could also provide a specific
public process on EPA's translation of the baseline narrative criteria,
in advance of the public process associated with the respective CWA
implementation program, to solicit input from affected parties
specifically on the derivation of the numeric values. EPA would make
the numeric values, along with the spatial extent (i.e., waterbody
segment) for which the narrative criteria were translated, publicly
available at a website that will be provided in the final rule. At the
request of a Tribe, EPA could also provide this information to the
Tribe in a non-electronic format.
Making information available to the respective Tribe, the public,
the regulated community, and other stakeholders is important to
ensuring regulatory certainty and clarity. Documents associated with
CWA implementation also provide transparency for the public. For
federally issued NPDES permits, for example, EPA would describe in the
permit fact sheet or statement of basis how it used the numeric values
translated from the applicable baseline narrative criteria to derive
WQBELs.
EPA solicits comment on EPA's proposed approach to rely on
narrative criteria with an associated binding numeric translation
procedure. EPA also invites comment on other approaches that should be
considered, including reliance on IK, as appropriate.
b. EPA To Translate the Baseline Narrative Criteria
EPA is the authority responsible for translating the applicable
baseline narrative criteria for use in CWA regulatory actions because
the baseline WQS would be federally promulgated, and the proposed
regulatory text directs EPA to undertake this translation step. The
most common example would be EPA issuance of a NPDES permit for a
discharge to Indian reservation waters where the baseline WQS would
apply. The EPA regional office (including the WQS and implementing
programs) would rely on the binding translation procedures to translate
narrative criteria for pollutants in the discharge to determine if they
have a reasonable potential to cause or contribute to an exceedance of
WQS. EPA would use those numeric values to derive WQBELs for those
pollutants. Other implementation examples are discussed in section VII
of this preamble.
EPA also notes that if situations arise where there are significant
differences between upstream state WQS and baseline WQS, EPA would
address them similarly to how EPA currently works with two states, or
an authorized Tribe and a state, to address significantly differing
standards set on a shared water body. Early communication among the
potentially affected jurisdiction(s) and EPA is key to help define the
scope of the issue and determine protective endpoints. This process
entails working with the applicable entities to ensure all WQS are
considered. States, Tribes, and EPA are also able to rely on the public
notice and comment opportunities to inform the derivation of numeric
values translated from the applicable baseline narrative criteria and
the establishment of WQBELs as mentioned previously. In addition, EPA's
regulation at 40 CFR 131.7 provides a mechanism for the resolution of
unreasonable consequences that may arise from differing WQS set by
states and authorized Tribes located on common bodies of water.
Although 40 CFR 131.7 does not apply to situations with different
Federal and state WQS on a shared water body, EPA could utilize
procedural steps similar to those laid out in that section where
appropriate to work with the relevant parties in a neutral fashion in
an effort to resolve the issues involved.
C. Proposed Baseline Antidegradation Policy and Implementation
Procedures
Antidegradation requirements are an essential component of WQS and
play a critical role in maintaining and protecting valuable water
resources. Antidegradation provides a framework for maintaining and
protecting water quality that has already been achieved. This includes
maintaining and protecting existing uses,\39\ high quality waters, and
the water quality of outstanding national resource waters (ONRWs).
Maintaining water quality, particularly high water quality, is critical
to supporting public health, economic growth, community growth, and
high functioning natural systems. It provides a margin of safety that
will afford the water body increased resilience to potential future
stressors, including climate change. It is more cost effective and
resource efficient to keep water clean than to restore or remediate
waters that have been impaired. The Federal antidegradation regulation
in 40 CFR part 131 requires development and adoption of an
``antidegradation policy'' and development of ``antidegradation
implementation methods.'' 40 CFR 131.12.
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\39\ 40 CFR 131.3(e). ``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.''
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[[Page 29509]]
EPA is proposing an antidegradation policy for Indian reservation
waters consistent with the antidegradation regulation at 40 CFR
131.12(a). The proposed antidegradation policy for Indian reservation
waters would establish three levels of protection: protection for
existing uses, protection for high quality waters, and protection for
ONRWs. Please refer to the proposed antidegradation policy found at 40
CFR 131.XX(e) of this proposed rule.
Protection for existing uses (Tier 1) would require that the water
quality necessary to protect existing uses be maintained. ``Existing
uses'' are defined at 40 CFR 131.3(e) as those uses actually attained
in the water body on or after November 28, 1975, whether or not they
are included in the water quality standards. Tier 1 protection would
establish the floor of water quality for all Indian reservation waters.
Protection for high quality waters (Tier 2) would require that
where water quality exceeds the levels necessary to support protection
and propagation of fish, shellfish, and wildlife, and recreation in and
on the water, that quality shall be maintained and protected. A
lowering of water quality could be allowed if the Regional
Administrator finds with written agreement from the Tribe, after public
involvement and intergovernmental coordination, that allowing lower
water quality is necessary to accommodate important economic or social
development in the area in which the waters are located. ``Exceeds'' in
this context refers to water quality being better than necessary to
support CWA section 101(a)(2) uses. The Regional Administrator must
assure that any lowering of high water quality still results in water
quality that protects existing uses. In addition, the Regional
Administrator must assure that no lowering of high water quality is
allowed unless statutory and regulatory requirements for existing point
sources and all Tribal-regulated,\40\ cost-effective, and reasonable
best management practices for nonpoint source controls are achieved.
Tier 2 protection is intended to establish protection for high quality
waters, and to provide a public, systematic decision-making process for
determining whether to allow limited degradation of water quality in
these high quality waters.
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\40\ See https://www.epa.gov/sites/default/files/2014-10/documents/davies-regrequire-memo.pdf.
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This approach is in accordance with 40 CFR 131.12(a)(2) which
provides that water quality shall be maintained and protected unless
``the State'' finds that allowing lower water quality is necessary to
accommodate important economic or social development in the area in
which the waters are located. Here the Regional Administrator, as the
entity implementing the antidegradation policy, would be making such a
finding. In order to ensure that Tribes are able to exercise
appropriate oversight over their waters based on local priorities,
proposed 40 CFR 131.XX(e)(2) provides that the Regional Administrator
would not allow the lowering of high water quality unless the relevant
Tribe agrees in writing that such a lowering is necessary to
accommodate important economic or social development in the area in
which the waters are located. If the Tribe does not provide its written
agreement, then the Regional Administrator will maintain the current
high water quality WQS.
In determining whether a lowering of high water quality is
necessary, the Regional Administrator and the Tribe would consider the
results of an analysis of practicable alternatives, which is an
analysis of pollution control and pollution prevention
alternatives.\41\ If identified, a less or non-degrading practicable
alternative would be selected for implementation consistent with 40 CFR
131.12(a)(2)(ii). The Regional Administrator and Tribe would also
consider the results of a socio-economic analysis which would assess
the social and economic importance of the activity to the community
impacted by the degraded water quality. These analyses could be
completed by the agency, the Tribe, or a third party (for example, the
discharger affecting water quality). EPA is considering whether these
analyses could be completed by third parties and solicits comment on
whether this rule should include such a requirement, or alternatively
leave open which entity will provide such information.
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\41\ ``Practicable, in the context of Sec. 131.12(a)(2)(ii),
means technologically possible, able to be put into practice, and
economically viable.'' 40 CFR 131.3(n).
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Protection for ONRWs (Tier 3) would require that water quality in
water bodies of exceptional recreational, ecological, or cultural
significance would be maintained and protected. The term ``cultural
significance'' is not a part of 40 CFR 131.12(a)(3). EPA is proposing
to include this language at proposed 40 CFR 131.XX(f)(4) to clarify
that Tribes are able to identify highly valued waters on their
reservations based on their cultural significance in keeping with the
intended purpose of this rule. This provision would establish the
highest level of protection for water bodies by prohibiting the
permanent lowering of water quality. However, activities that result in
short-term and temporary changes in the water quality of the ONRW may
be allowed. EPA interprets short-term and temporary as weeks or months,
and not years. The intent is to limit degradation to the shortest
possible time and prohibit any permanent degradation. EPA is not
proposing to classify any water body as an ONRW in the final baseline
standards rule. See the proposed antidegradation implementation method
at proposed 40 CFR 131.XX(f)(4) and the associated preamble discussion
of Tier 3 below for the process to nominate a water to be an ONRW.
The purpose of this antidegradation policy would be to maintain and
protect the finite public resource of clean water and ensure that a
decision to allow a lowering of high water quality is made in a public
manner and serves the public good.
EPA invites comments on the proposed antidegradation policy
provisions. EPA is not proposing to revise 40 CFR 131.12 with this
proposal, and thus does not seek comment on the provisions in 40 CFR
131.12. Rather, EPA invites comment on the antidegradation policy as
applied herein to certain Indian reservation waters for Tribal WQS
decisions.
EPA also proposes to establish legally binding antidegradation
implementation methods consistent with 40 CFR 131.12(b) and proposed 40
CFR 131.XX(e). Please refer to the proposed antidegradation
implementation methods regulatory language found at 40 CFR 131.XX(f) of
this proposed rule.
Antidegradation implementation methods (AIMs) are a set of
provisions that describe how a state's or authorized Tribe's
antidegradation policy will be implemented. As currently implemented
under 40 CFR 131.12, AIMs can be legally binding or in guidance. As
stated in 40 CFR 131.12(b), all states and authorized Tribes are
required to develop AIMs that are consistent with 40 CFR 131.12(a) and
their own antidegradation policy. States and authorized Tribes must
make these AIMs available to the public and must provide the public an
opportunity to provide input on the AIMs during their development and
any subsequent revision (40 CFR 131.12(b)).
In addition to EPA's proposed antidegradation policy and consistent
with 40 CFR 131.12, EPA is proposing antidegradation implementation
methods, as provided at proposed Sec. 131.XX(f), which address the
following elements to implement EPA's proposed antidegradation policy:
[[Page 29510]]
Existing use protection (Tier 1): describes how the
Regional Administrator would ensure the maintenance and protection of
existing uses and the water quality to protect the existing uses. EPA
would implement this provision for Tribes covered by this rule, by
reviewing and determining whether a lowering of water quality would
impair an existing use. If the Regional Administrator finds that a
water body has an existing use that has not been designated, such as a
public water supply use, the Regional Administrator would ensure
protection of that undesignated, but existing use. If an undesignated
use is identified as an existing use, then the Regional Administrator
would work with the Tribe to adopt this use as a designated use to
ensure its future protection. At minimum, 40 CFR 131.10(i) would
dictate that the EPA and Tribe determine the best way to revise
designated uses to protect any existing use that is presently being
attained.
High quality water protection (Tier 2): (1) describes how
the Regional Administrator would identify high quality waters on a
parameter-by-parameter basis; (2) describes how the Regional
Administrator with written agreement from the Tribe, would determine
whether a lowering of high quality water is necessary to accommodate
important economic or social development in the area in which the
waters are located through an analysis of alternatives and a socio-
economic analysis; (3) describes how the Regional Administrator would
provide for public involvement and intergovernmental coordination on
any decision to lower water quality in a high quality water; (4)
describes how the Regional Administrator would assure that any lowering
of high water quality still results in water quality that protects
existing uses fully; (5) describes how the Regional Administrator would
assure that there shall be achieved the highest statutory and
regulatory requirements for all new and existing point sources and all
Tribal-regulated, cost-effective, and reasonable best management
practices for nonpoint source control when allowing a lowering of water
quality.\42\
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\42\ See Davies, Tudor. 1994. Memorandum: Interpretation of
Federal Antidegradation Regulatory Requirement. https://www.epa.gov/sites/default/files/2014-10/documents/davies-regrequire-memo.pdf.
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ONRW protection (Tier 3): describes how the Regional
Administrator would ensure the maintenance and protection of water
quality for waters identified as ONRWs. It also describes the
nomination process to assign waters as ONRWs. In this process, any
person or entity may nominate a specific water for such protection by
providing written documentation of the qualifications of the
reservation water to the Regional Administrator and the Tribe. The
Regional Administrator would make a final decision with written
agreement from the Tribe to assign the water as an ONRW and issue a
public notice regarding that decision. EPA would provide a publicly
available list of waters assigned as an ONRW at a website location to
be provided in the final rule.
The requirements of the antidegradation policy and AIMs will be
triggered by a request from a discharger or entity for authorization
for any new or expanded regulated activity. Regulated activities
include, but are not limited to, any activity that requires a permit,
license, or water quality certification pursuant to sections 401, 402,
and 404 of the CWA. States and authorized Tribes may implement
antidegradation requirements in programs beyond those regulated under
the CWA, such as state- or Tribal-regulated nonpoint source programs or
voluntary programs. As part of the implementation of antidegradation in
CWA section 402 permits, antidegradation protections will also be
addressed in new or reissued general permits authorized, implemented,
or administered by the Regional Administrator either at the time the
permitting authority develops and issues the general permit or upon
review of an applicant's request to be covered by a general permit.
For further discussion on AIMs, please refer to EPA's WQS Handbook,
Chapter 4 Antidegradation.\43\
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\43\ EPA Water Quality Standards Handbook. https://www.epa.gov/wqs-tech/water-quality-standards-handbook.
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EPA solicits comment on the proposed antidegradation implementation
methods.
D. Other Proposed Water Quality Standards Provisions of Baseline Water
Quality Standards
1. Mixing Zone Policy
The proposed rule contains a detailed mixing zone policy that would
allow the Regional Administrator to establish mixing zones on a case-
by-case basis. But it would prohibit mixing zones for discharges of
bioaccumulative pollutants and for pathogens and pathogen indicators
without adequate evidence that designated uses will be protected. EPA's
proposed mixing zone policy in this proposed rule draws upon the mixing
zone policy included in EPA's Model WQS Template for Waters on Indian
Reservations,\44\ which builds upon mixing zone guidance produced by
EPA over the years and the state of Washington's existing state mixing
zone policy. EPA would follow its regulations regarding public notice
and opportunity for public comment in applying its mixing zone policy
in federally issued NPDES permits.
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\44\ https://www.epa.gov/wqs-tech/water-quality-standards-tools-tribes#tab3.
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A mixing zone (sometimes also called a regulatory mixing zone) is
defined through the NPDES permitting process and may be implemented in
any waterbody type or discharge configuration where rapid and complete
mixing does not occur. EPA's current guidance \45\ describes a mixing
zone as an allocated impact zone where certain water quality criteria
may be exceeded, provided that there is no lethality to aquatic
organisms that pass through the mixing zone; there are no significant
health risks to humans; and the designated and existing uses of the
water body as a whole are not impaired as a result of the mixing zone.
Allocated impact zones or mixing zones, if disproportionately large,
could unacceptably impact the integrity of the aquatic ecosystem and
have unanticipated ecological consequences on the water body as a whole
resulting in impairment of the designated or existing uses. A legally
binding mixing zone policy is considered a WQS under EPA's existing
regulations at 40 CFR 131.13. The policy describes the general
characteristics of, and requirements associated with mixing zones
without accounting for site-specific information. EPA's guidance has
emphasized a holistic approach to mixing zone regulation which
considers location, size, shape, outfall design, and in-zone
quality.\46\
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\45\ EPA Water Quality Standards Handbook. https://www.epa.gov/wqs-tech/water-quality-standards-handbook.
\46\ EPA's guidance on mixing zones has been detailed in several
agency publications, including the Water Quality Standards Handbook,
August 1994, the Technical Support Document for Water Quality-based
Toxics Control (TSD), March 1991, and EPA's Compilation of Mixing
Zone Documents, 2006.
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Mixing Zone Size
To protect the designated uses of the water body as a whole, it is
critical that pollutant concentrations within any mixing zone are not
lethal to mobile, migrating, and drifting organisms in the water body
or cause unacceptable human health risks considering likely pathways of
exposure. One means of achieving these objectives is to limit the size
of the mixing zone. EPA is
[[Page 29511]]
proposing to limit the size of mixing zones in 40 CFR 131.XX(g)(2)(vii)
of this proposed rule by establishing specific metrics for: how far
upstream and downstream mixing zones may extend: how much of the water
body may be taken up by mixing zones (in terms of percentages); and
prohibiting overlapping mixing zones. These proposed size metrics
represent a balance among three interests: allowing a reasonable amount
of water for mixing; allowing for sufficient space for human health
protection and aquatic life survival, growth, and reproduction; and
recognizing that multiple dischargers may exist on the same water. EPA
solicits comments on the proposed size metrics and whether other
metrics, metric values, or approaches may be more appropriate.
Mixing zone sizes are often determined using a set of critical
conditions to ensure protection of the receiving water. Examples of
critical conditions are the critical effluent concentration, critical
effluent flow, and the critical low flow of the receiving stream.
Critical low flows commonly used throughout the United States include
these hydrologically-based metrics:
1Q10 (the lowest one-day average flow event expected to
occur once every ten years) or the biologically-based 1B3 (the lowest
one-day average flow event expected to occur once every three years)
flow rate for acute aquatic life criteria;
7Q10 (the lowest seven-consecutive-day average flow event
expected to occur once every ten years) or 4B3 (the lowest four-
consecutive-day average flow event expected to occur once every three
years) flow rate for chronic aquatic life criteria with a duration of
less than 30 days and human health criteria based on a short-term
toxicological effect; the 30Q10, 30Q5, or 30B3 flow rate for chronic
aquatic life criteria with a duration of 30 days or longer; and
harmonic mean flow rate for human health criteria is based
on lifetime exposure.
Local, regional, and national guidance is available to determine
critical low flows and other critical conditions for mixing zone
calculations. EPA is proposing that for purposes of this rule, critical
low flow will mean the 1Q10 or 1B3 flow rate for acute aquatic life
criteria; the 7Q10 or 4B3 flow rate for chronic aquatic life criteria
with a duration of less than 30 days and human health criteria based on
a short-term toxicological effect; the 30Q10, 30Q5, or 30B3 flow rate
for chronic aquatic life criteria with a duration of 30 days or longer;
and the harmonic mean flow rate for human health criteria based on
lifetime exposure.
Zones of passage within water bodies that allow for migrating,
free-swimming, or drifting organisms are particularly important when
determining the appropriate size of a mixing zone. Zones of passage are
continuous water routes of such volume, area, and quality as to allow
the passage of free-swimming and drifting organisms without significant
adverse effects on their populations. Many species migrate for spawning
and other purposes. Not only do migrating species (e.g., anadromous and
catadromous species) need to be able to reach suitable spawning areas,
their young (and in some cases the adults) require a safe return route
to their growing and living areas. Within a mixing zone, pollutant
concentrations exceeding the established criteria can create barriers
that hinder or prevent safe migration.
Mixing Zone Shape
The water body type, outfall design, and characteristics of the
discharge will determine the shape of a mixing zone. The shape should
be a simple configuration that is easy for both the discharger and the
permitting authority to locate in a water body and that avoids
impingement on biologically important areas. In lakes, a circle with a
specified radius is generally preferable, but other shapes might be
appropriate in the case of unusual site configurations. Mixing zone
shapes and sizes may vary depending on the pollutant of concern and the
specific criterion (e.g., acute, chronic, or human health) being
considered. Local, regional, and national guidance is available to
determine mixing zone characteristics. Under EPA's proposal, the
Regional Administrator would be able to adjust the size and extent of
mixing zones within the limits allowable in proposed 40 CFR
131.XX(g)(2)(vii) to establish the desired shape of mixing zones where
appropriate.
Outfall Design
Many different factors affect how well the outfall design allows
the discharge to mix with the receiving water, including:
The height of the outfall with respect to the surface and
bottom of the water body. A surface discharge is least favorable for
toxic discharges since it offers the least initial mixing. Submerged
discharges offer greater flexibility in meeting the design goals for
toxic discharges.
The distance of the end of the pipe to the nearest bank
(i.e., whether the outfall is in the middle of the water body or close
to one side). Discharges at the shoreline of a water body can yield
high surface concentrations along the shoreline when there is
significant cross-flow.
The angle of the discharge. The initial dilution can be
maximized when submerged discharges direct the effluent at an angle to
the ambient flow. For example, in rivers, the preferred arrangement for
a submerged discharge is to direct the outfall into the current flow
direction or vertically upward.
The type of submerged discharge that is used (i.e.,
single-port or multi-port diffuser). A multiport submerged discharge,
or diffuser, can help effluent to be mixed more rapidly than a single-
port submerged discharge.
Shore hugging plumes are a particular concern in all water bodies.
Shore areas are often the most biologically productive and sensitive
areas of a water body, and they are often used for recreation. Shore-
hugging plumes generally do not mix as well with receiving waters and,
thus, do not dilute as well as mixing zones with other shapes that do
not hug shorelines. Because shore-hugging plumes tend to keep unmixed
water over the benthic area or in the recreational area, they are more
likely to adversely affect the designated uses of the water body.
Therefore, EPA is including avoidance of shore-hugging plumes in the
design of outfalls.
Because an outfall design affects the amount of initial mixing that
occurs, EPA is proposing language to encourage dischargers to utilize
the best practicable engineering design of the outfall to maximize
initial mixing. Sometimes, modifying the design of the diffuser, the
location of the outfall, or other outfall design characteristics can
reduce significant adverse impacts to the water body.
Quantitative measures for certain mixing zone elements that are
sufficient for permitting authorities to develop associated WQBELs in a
transparent and straightforward manner provide for regulatory certainty
and consistency. EPA solicits comments on its chosen measures and
whether other measures may be more appropriate.
Mixing zone guidance \47\ produced by EPA since 1972 has
consistently emphasized the need to protect both sessile organisms and
swimming and drifting organisms, as well as human recreation, when
developing and
[[Page 29512]]
locating a mixing zone. Preventing adverse impacts can involve not only
limiting the scope and location of the discharge but may warrant
prohibition of the mixing zone for the pollutant type or location.
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\47\ For example, the Water Quality Standards Handbook, August
1994, the Technical Support Document for Water Quality-based Toxics
Control (TSD), March 1991, and EPA's Compilation of Mixing Zone
Documents, 2006.
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Mixing zones may not be appropriate for all pollutants. For
example, mixing zones may not be appropriate for bioaccumulative
pollutants because greater bioaccumulation in the portion of the
aquatic food web located within the mixing zone may elevate human
health risks and prevent protection of the designated use of the water
body as a whole. Because fish tissue contamination tends to be a far-
field problem affecting entire or downstream water bodies rather than a
near-field problem confined to the area within a mixing zone, EPA's
position is that without adequate justification that designated uses
will be protected, it is not advisable for mixing zone policies to
allow mixing zones for discharges of bioaccumulative pollutants. EPA
adopted a similar approach in 2000 when it amended its 1995 final Water
Quality Guidance for the Great Lakes System at 40 CFR part 132 to phase
out mixing zones for existing discharges of bioaccumulative pollutants
and ban such mixing zones for new discharges within the Great Lakes
Basin.
Mixing zones also may not be appropriate for pathogens, such as
bacteria, or pathogen indicators because they may cause significant
human health risks and endanger critical areas (e.g., recreational
areas). EPA's position is that it is not advisable to allow mixing
zones for bacteria or other pathogens in waters designated for primary
contact recreation. For a river or stream segment designated for
primary contact recreation, the presumption is that primary contact
recreation can safely occur throughout the segment and, therefore, that
pathogen levels will not exceed criteria throughout the segment.
Epidemiological studies have demonstrated that illness rates are higher
when the criteria are exceeded compared to when those criteria are not
exceeded (see sections 3.2 and 3.3 of the EPA's Recreational Water
Quality Criteria (2012)). Therefore, people recreating in or through a
bacteria mixing zone (where bacteria levels may be elevated above the
criteria levels) may be exposed to greater risk of gastrointestinal
illness than would otherwise be allowed by the state or Tribal criteria
for protection of the recreation use. For these reasons, EPA proposes
in this rule to prohibit mixing zones for discharges of bioaccumulative
pollutants and for pathogens and pathogen indicators without adequate
justification that designated uses will be protected.
EPA's proposed mixing zone policy does not preclude reliance on
dilution allowances for situations in which rapid and complete mixing
of a discharge occurs in the receiving water. The term ``dilution
allowance'' refers to a portion of the flow in a river or stream
allocated for dilution of a discharge of pollutants. A dilution
allowance may be authorized by the Regional Administrator at the time a
CWA section 402 or section 404 permit is issued, renewed, or materially
modified and is in effect as long as the permit remains in effect. For
more information on dilution allowances, refer to EPA's NPDES Permit
Writers' Manual.\48\
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\48\ U.S. EPA NPDES Permit Writers' Manual. https://www.epa.gov/sites/default/files/2015-09/documents/pwm_2010.pdf.
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EPA invites comments on the proposed mixing zone policy and whether
EPA should include a detailed mixing zone policy in its promulgation.
In particular, EPA invites comments on the details proposed at 40 CFR
131.XX(g)(2)(vii)(A) and (B) of this proposed rule regarding mixing
zone size and shape restrictions. EPA specifically seeks comment on
whether: to alter any of the detailed restrictions; to include less
detail in the final rule: or to consider additional information to
inform the proposed mixing zone restrictions given the national scope
of this rulemaking.
2. Compliance Schedule Authorizing Provision
EPA regulations also allow for compliance schedules to be included
in NPDES permits to allow permittees additional time to comply with
effluent limitations. Such schedules must require compliance by the
permittees as soon as possible, but in no case may extend beyond
compliance dates established by the CWA. See 40 CFR 122.47. Compliance
schedules may not be issued for WQBELs unless authorized in the
applicable water quality standards or implementing regulation. See 40
CFR 131.15.
EPA proposes to include a compliance schedule authorizing provision
in the baseline WQS such that EPA could issue a compliance schedule as
part of an NPDES permit that would require the discharger to comply as
soon as possible with any WQBEL in a permit reissued or modified on or
after the effective date of the final rule. EPA proposes the compliance
schedule authorizing provision would provide that EPA may include
compliance schedules where appropriate in establishing effluent
limitations to meet these baseline WQS for Indian reservation waters,
consistent with 40 CFR 122.47.
EPA invites comment on the inclusion of a compliance schedule
authorizing provision, and on the compliance schedule authorizing
provision in the proposed baseline standards.
VI. Proposed Procedure To Revise a Designated Use, Add a Designated
Use, or Establish a Water Quality Standards Variance After the Proposed
Rule Is Final
EPA anticipates that data and information may become available
after the baseline WQS rule becomes final that could lead EPA to
identify a need, or a Tribe to request, that EPA revise or add
designated uses and associated criteria or establish a WQS variance for
Indian reservation waters covered by this rule. While EPA retains the
discretion to issue a subsequent Federal rulemaking to take such
actions, EPA is proposing to include a Federal administrative procedure
that could result in revisions to the applicable baseline WQS, where
appropriate, for specified water bodies covered by this WQS rule and
consistent with 40 CFR part 131. The Regional Administrator will follow
the public participation requirements of CWA section 303(c)(1), 40 CFR
131.20(b), and 40 CFR part 25 for any action taken under this
procedure. Under this procedure, the Regional Administrator would
prepare and make available to the public supporting documentation
consistent with what EPA regulations require of states and authorized
Tribes, EPA regulation 40 CFR 131.10 and 131.14, and would provide an
opportunity for public comment on the proposed designated use
revisions, additions, or establishment of a WQS variance.
EPA's WQS regulation: (1) specifies requirements that must be met
when states and authorized Tribes adopt or revise designated uses (40
CFR 131.10); and (2) authorizes and specifies requirements for states
and authorized Tribes to adopt WQS variances that provide time to make
incremental progress towards the applicable WQS where the applicable
designated use and associated criteria are not currently attainable (40
CFR 131.14).
To revise a use specified in CWA 101(a)(2), a Use Attainability
Analysis (UAA) must be conducted that finds the use(s) are unattainable
based on one of the factors in 40 CFR 131.10(g). The UAA, defined in 40
CFR 131.3(g), is a structured scientific assessment of the
[[Page 29513]]
factors affecting the attainment of the use which may include physical,
chemical, biological, and economic factors. When a UAA justifies
revision of the unattainable designated use, 40 CFR 131.10(g) requires
adoption of the highest attainable use. Additionally, states and
authorized Tribes cannot remove an existing use, defined as those uses
actually attained in the water body on or after November 28, 1975,
whether or not they are included in the WQS. 40 CFR 131.3(e).
A non-101(a)(2) use as defined at 40 CFR 131.3(q) may be revised
after taking into consideration the use and value of water for public
water supplies, agricultural, industrial and other purposes including
navigation. (See 40 CFR 131.10(k)(3))
WQS variances established in accordance with 40 CFR 131.14 provide
a flexible but defined pathway to make incremental water quality
improvements if the applicable designated use and associated criteria
are not immediately attainable but may be attainable in the future. Per
40 CFR 131.14(b)(1)(ii), WQS variances specify the interim requirements
that apply during the WQS variance term based on the highest attainable
condition. Further, WQS variances, once applicable, serve as the basis
for water quality based effluent limits in NPDES permits and for
issuing certifications under CWA section 401 for the parameter and
permittee or water body identified in the WQS variance. (40 CFR
131.14(a)(3)) Once the WQS variance expires, NPDES permits must be
written to meet the underlying designated use and associated criterion
or a subsequent WQS variance must be established. For additional
information on WQS variances, please refer to https://www.epa.gov/wqs-tech/water-quality-standards-variances.
Title 40 CFR 131.XX(i) of this proposed rule lays out a Federal
administrative procedure for the relevant Regional Administrator to
determine whether a new or revised designated use and/or a WQS variance
is appropriate for a water body covered by this rule. Under the
proposed rule, in addition to the Regional Administrator being able to
identify such a need, a Tribe whose Indian reservation is affected may
also request a new or revised designated use and/or a WQS variance.
For additions or revisions of designated uses, the Regional
Administrator would apply EPA regulations at 40 CFR 131.10 to evaluate
whether the requested change is justified for the specified water body.
If a Tribe requests the revision of any CWA section 101(a)(2)
designated use applicable through the baseline WQS rule, the Regional
Administrator would determine through a UAA where required by 40 CFR
131.10(j) whether the use is an existing use and whether any of the
factors in 40 CFR 131.10(g) preclude attainment of that designated use.
If a Tribe requests additions or revisions of any designated non-
101(a)(2) use, the Regional Administrator would determine whether the
requested change is appropriate based on a use and value demonstration
per 40 CFR 131.10(k)(3). If a Tribe requests to establish WQS
variances, the Regional Administrator would apply the provisions of 40
CFR 131.14 to evaluate whether the requested WQS variance is justified,
including whether there is a demonstrated need for the variance based
on the factors in 40 CFR 131.14(b)(2)(i)(A).
Any final decisions made by a Regional Administrator through this
Federal administrative procedure that the requested use change or WQS
variance is appropriate and justified would result in revisions to the
applicable WQS for the specific parameter(s), water body/waterbody
segments(s), and discharger (in the case of a discharger-specific WQS
variance). Such revised or additional designated uses and the
associated criteria, and/or WQS variances would be effective for
purposes of the CWA, including for CWA section 402 NPDES permitting
purposes. For WQS variances, those CWA purposes are limited to
developing NPDES permit limits under 301(b)(1)(C), where appropriate,
and issuing certifications under section 401 of the CWA pursuant to 40
CFR 131.14(a)(3).
Pursuant to the proposed Federal administrative procedure, a
decision by a Regional Administrator would be final and effective upon
signature without necessitating a subsequent Federal rulemaking
revising the baseline WQS rule. This is because this decision would not
result in a change to the baseline WQS rule, which is a nationally
applicable framework that is intended to be tailored to specific Indian
reservation waters as implemented. Rather, the decision would result in
a change to the individual WQS applicable to a particular Indian
reservation, as opposed to a change to any provision of the rule
itself. While the agency is proposing this Federal administrative
procedure as an alternative to subsequent Indian reservation-specific
promulgations of revised designated uses or WQS variances, the agency
could effectuate such changes through future rulemakings applicable to
individual Indian reservations. This procedure is not integral to this
proposed rule. Rather, this rule is designed to operate either with or
without the Federal administrative procedure. To enhance public
transparency under the proposed Federal administrative procedure, EPA
would maintain a public website \49\ containing an updated list of the
applicable designated uses and associated criteria, and WQS variances
with accompanying explanations of the statutory and regulatory basis
for the decisions.
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\49\ EPA will specify the website in the final rule.
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In all cases when implementing the procedure, the Regional
Administrator would initiate consultation with the Tribe whose waters
would be affected by the revised designated uses, consistent with the
proposed Tribal consultation provision at 40 CFR 131.XX(b) and as
described in section V of this preamble.
EPA solicits comment on whether EPA should include a provision as
part of 40 CFR 131.XX(i) specifying that the Tribe must request in
writing any designated use revision that would result in the designated
use and associated criteria being less stringent than those applicable
under the baseline WQS before the Regional Administrator would proceed
with such an action. EPA solicits comment on whether a similar
provision should be included when establishing a WQS variance. EPA is
interested in whether such regulatory provisions would be beneficial to
ensure Tribes have the opportunity to conduct appropriate oversight of
any adoption of WQS less stringent than originally promulgated by this
rule. Alternatively, rather than specify a requirement that a Tribe
must make such a request in writing before the Regional Administrator
would proceed with such an action, EPA seeks input on whether such
Tribal oversight could be provided through existing Regional Tribal
consultation procedures that will be implemented consistent with the
proposed requirement at 40 CFR 131.XX(b) to initiate consultation on
any action that may affect Tribal interests.
EPA envisions that the proposed Federal administrative procedure
for revising or adding designated uses or establishing WQS variances
would entail the following four steps:
Step 1--The Regional Administrator identifies and/or the
Tribe requests a water(s) for which a revised designated use or
additional
[[Page 29514]]
designated use may be justified or identifies the water(s),
permittee(s) and parameters for which a WQS variance may be justified.
Step 2--EPA, working with the Tribe, assembles the data
(including any data provided by a third party), conducts the analyses
required by the relevant regulatory provision (including any analyses
provided by a third party), and prepares the supporting documentation
demonstrating that (1) the revised or added designated use is justified
consistent with the requirements of the CWA and EPA's regulation,
specifically at 40 CFR 131.10, or (2) the WQS variance is justified
consistent with the requirements of the CWA and EPA's regulation,
specifically at 40 CFR 131.14.
Step 3--Regional Administrator publishes a notice of a
public hearing at least 45 days in advance of the public hearing
describing the proposed designated use revision or addition and the
associated criteria and/or WQS variance, providing the relevant
analyses and documentation at least 30 days in advance of the public
hearing, announcing its intent to hold at least one public hearing, and
establishing a 45-day public comment period for the public to submit
written comments on the proposed revisions. EPA intends to rely on
EPA's Public Notices website \50\ to publish public notices and to
leverage any existing public notification processes that relevant
Tribes may have in place. These efforts must be consistent with the
public participation requirements of CWA section 303(c)(1), 40 CFR
131.20(b), and 40 CFR part 25.
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\50\ Public Notices at U.S. EPA, website at https://www.epa.gov/publicnotices.
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Step 4--The Regional Administrator reviews and considers
comments and makes a final decision concerning whether revising a
designated use, adding a designated use, and/or establishing a WQS
variance is justified, consistent with the requirements of the CWA and
EPA's regulations 40 CFR 131.10 and/or 131.14. Where the Regional
Administrator makes such a final decision, those changes become
applicable for CWA purposes. (As mentioned previously, for WQS
variances, those CWA purposes are limited to purposes of developing
NPDES permit limits under 301(b)(1)(C), where appropriate, and issuing
CWA section 401 certifications pursuant to Sec. 131.14(a)(3). EPA
maintains and makes available to the public an updated list of the
applicable designated uses and WQS variances with the explanation of
the statutory and regulatory basis for the decisions available at a
website location to be provided in the final rule.
EPA is not reopening 40 CFR 131.10 or 131.14 with this proposal,
and thus does not seek comment on the provisions in 40 CFR 131.10 or
131.14. Rather, EPA invites comment on the proposed Federal
administrative procedure for EPA to revise a baseline designated use,
add a designated use, or establish a WQS variance for a specific Indian
reservation water body covered by this proposed rule based on
consideration of location-specific factors involving the four steps as
identified.
EPA continues to encourage Tribes who are interested in WQS that
reflect site-specific, tailored designated uses for particular Indian
reservation waters to obtain TAS for WQS and adopt their own WQS,
subject to EPA review and approval under CWA section 303(c).\51\
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\51\ Any state or authorized Tribe that is adopting its own WQS
has the discretion to use an administrative procedure to streamline
the rulemaking process; however, CWA section 303(c)(2)(A) still
requires the state or authorized Tribe to submit any WQS adopted
pursuant to state or Tribal law to EPA for review and approval or
disapproval.
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VII. Implementation of Baseline Water Quality Standards in Clean Water
Act Programs
A. Section 402 NPDES Discharge Permits
Under CWA section 402, any facility or activity that discharges
pollutants (other than dredged or fill material) from a point source
into the waters of the United States must obtain and comply with an
NPDES permit. EPA regulations that describe the requirements and
procedures for the development of NPDES permits are contained in 40 CFR
parts 122, 124, 125, and 129. Effluent limitations for pollutants that
are contained in NPDES permits can include TBELs and WQBELs. TBELs
represent the level of pollutant reduction that can be achieved after
application of secondary treatment for municipal publicly owned
treatment works, defined at 40 CFR part 133, and best available
treatment technologies for non-municipal (industrial) discharges. EPA
has issued effluent limitation guidelines and standards that provide
minimum national requirements that industrial discharges must meet. See
40 CFR chapter I, subchapter N. Where an EPA-promulgated applicable
effluent limitations guideline is not available for an industry sector,
permit authorities can develop TBELs based on best professional
judgment. See CWA section 402(a)(1); 40 CFR 125.3(c)(2).
Where TBELs are not sufficient to assure attainment of WQS,
including water quality standards in downstream jurisdictions, WQBELs
are required by the CWA. WQBELs are generally derived from the
applicable WQS.\52\ See CWA section 301(b)(1)(C); 40 CFR 122.4(a) and
(d). Congress intended that WQBELs in the NPDES program should derive
from all applicable WQS, including Federal standards promulgated by
EPA.
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\52\ For pollutants for which an EPA-approved total maximum
daily load (TMDL) has been established under section 303(d) of the
CWA to restore impaired waters to meet WQS, the permit must include
WQBELs consistent with the assumptions and requirements of any
wasteload allocation assigned to the discharge as part of the TMDL.
See 40 CFR 122.44(d)(1)(vii)(B).
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i. NPDES Permits for Discharges to Waters With Baseline Water Quality
Standards
As described in section II.B of this preamble, EPA is generally the
authority for issuing NPDES permits in Indian country unless and until
EPA authorizes a Tribe to administer the NPDES permitting program. 40
CFR 123.1(h); see also 58 FR 67966, 67973-74 (December 22, 1993). When
implementing baseline WQS in developing and issuing an NPDES permit,
EPA would follow the regulation at 40 CFR part 122, including 40 CFR
122.44(d), and would be guided by procedures in the NPDES Permit
Writers' Manual \53\ and the Technical Support Document for Water
Quality Based Toxics Control.\54\ EPA would ensure public participation
when EPA issues NPDES permits for discharges to Indian reservation
waters, consistent with the requirements at 40 CFR part 124, subparts A
and D. EPA also would consult with the appropriate Tribe when
developing and issuing NPDES permits for discharges to Indian
reservation waters to ensure that Tribal concerns and issues are
considered.
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\53\ ``NPDES Permit Writers' Manual,'' EPA Office of Wastewater
Management, EPA-833-K-10-001, September 2010. Available at https://www.epa.gov/npdes/npdes-permit-writers-manual.
\54\ ``Technical Support Document for Water Quality-Based Toxics
Control,'' EPA Office of Water, EPA/505/2-90-001, March 1991.
Available at https://www3.epa.gov/npdes/pubs/owm0264.pdf.
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ii. NPDES Permits for Upstream Facilities Discharging to Downstream
Waters With Baseline Standards
Currently, there are no Tribes authorized to administer the NPDES
program.\55\ Tribes meeting the requirements of CWA section 518(e) may
seek authorization to administer the NPDES program. EPA regulations
[[Page 29515]]
that specify how a Tribe can seek authorization to administer the NPDES
program are contained in 40 CFR 123.31 through 123.34.
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\55\ Currently, 47 states and one U.S. territory are authorized
to administer the NPDES program.
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NPDES permits must ensure compliance with the applicable WQS of all
affected waters. See CWA sections 301(b)(1)(C) and 402(b)(1)(A); 40 CFR
122.4(a), (d) introductory text, and (d)(1). The proposed rule would
allow EPA to ensure that NPDES permits issued by authorized states,
Tribes, or territories \56\ for discharges to waters upstream from
Indian reservation waters comply with the final baseline WQS. If a
permitting authority failed to meet this requirement, EPA could use its
oversight authority of approved programs, which includes the authority
to review permits.
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\56\ ``Authorized'' in this section refers to states, Tribes, or
territories that are authorized to administer the NPDES program.
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Authorized states, territories or Tribes implementing EPA-
authorized NPDES programs must provide copies of proposed or draft
permits to EPA, except where permit review has been waived. 40 CFR
123.43(a)(2). EPA's right to review may not be waived for permits with
discharges which may affect the waters of a state other than the one in
which the discharge originates. 40 CFR 123.24(d)(2).
EPA will coordinate with Tribes to ensure that Tribal concerns and
issues are considered when EPA is reviewing NPDES permits issued by
authorized states that may affect Indian reservation waters covered by
the baseline WQS. If EPA determines that a NPDES permit issued by an
authorized state would not ensure compliance with downstream baseline
WQS, EPA can object to the permit. See 40 CFR 123.44(c)(1), (7), and
(8). A state may not issue an NPDES permit over EPA's objection. CWA
section 402(d)(2), 40 CFR 122.4(c). If the state does not revise the
permit to meet EPA's objection, EPA may issue the permit. See CWA
section 402(d)(4); 40 CFR 123.44(h)(2) and (3). Tribes that have TAS
for WQS that may be affected by a state issued permit would also
receive notice under the public notice procedures of 40 CFR 124.10(c)
and have the opportunity to provide comments on the permit. EPA
encourages affected Tribes to raise any concerns with an upstream state
issued NPDES permit to both the state and EPA. EPA would follow
applicable requirements to ensure public participation and would
coordinate, as appropriate, with adjacent states and Tribes, and other
interested parties when implementing the standards.
B. Section 404 Permits for Discharges of Dredged or Fill Material
Water quality standards are among the criteria considered in the
CWA section 404 program when reviewing permit requests for discharges
of dredged or fill material into waters of the U.S. Currently, CWA
section 404 permits for discharges must comply with all applicable
state WQS (including standards in a downstream jurisdiction) in effect
under the CWA. See CWA section 301(b)(1)(C); 40 CFR 230.10(b)(1) and
233.20(a). Section 404 of the CWA is jointly administered by the EPA
and the United States Army Corps of Engineers (the Corps) or by states
or Tribes with an EPA approved 404(g) program.
CWA section 404 permits for dredged or fill activities must include
permit conditions to meet criteria set out in the section 404(b)(1)
Guidelines, see 40 CFR part 230, discussed further below. These
criteria are to include applicable WQS. The current section 404 program
regulations at 40 CFR 230.10(b)(1), require permits to ensure
compliance with any applicable state water quality standard. In this
proposal, EPA is proposing to amend 40 CFR 230.10(b)(1) to clarify
that, consistent with CWA section 301(b)(1)(C), CWA section 404 permits
need to ensure compliance with federally promulgated WQS--which would
include baseline WQS for Indian reservation waters--as well as with
state WQS.
i. CWA Section 404 Permits Issued by the Army Corps of Engineers
The U.S. Army Corps of Engineers is the authority that issues CWA
section 404 permits for discharge of dredged or fill material into
``waters of the United States'' where no state or Tribe has assumed
responsibility for implementing the program. See CWA sections 404(a),
(g)-(i). Generally, the Corps works closely with both state and Tribal
governments to ensure that applicable WQS are met in CWA section 404
permitting actions.
In evaluating a CWA section 404 permit application, the Corps
follows the requirements of 40 CFR part 230, commonly called the
``Section 404(b)(1) Guidelines'' after the CWA section authorizing
their development. Except as provided in CWA Section 404(b)(2), the
Corps may only issue a CWA section 404 permit if it determines that the
proposed disposal site for the discharge of dredged or fill material
complies with the 404(b)(1) Guidelines. The 404(b)(1) Guidelines
require, among other things, that no discharge of dredged or fill
material shall be permitted if it ``causes or contribute to a water
quality violation of any applicable state water quality standard.'' 40
CFR 230.10(b)(1).
Because a Corps-issued section 404 permit is a ``Federal license or
permit'' for the discharge of dredged or fill material into ``waters of
the United States,'' a CWA section 401 certification from a state or
authorized Tribe is required. EPA provides section 401 certifications
on behalf of Tribes that do not have the authority to give CWA section
401 certification. Section 401 is discussed further in section VII.C of
this preamble.
EPA is proposing to amend 40 CFR 230.10(b)(1) to read ``. . . any
applicable state water quality standard or federally promulgated water
quality standard.'' This would clarify that the CWA section 404 program
must protect all applicable water quality standards, including
federally promulgated standards. The Corps must forward public notices
for all CWA section 404 individual permit applications to EPA for its
discretionary review. See 33 CFR 325.3. If EPA determines that a
proposal for a CWA section 404 individual permit could cause or
contribute to a violation of the baseline WQS for Indian reservation
waters, or other criteria set out in the 404(b)(1) Guidelines, EPA may
provide its views to the Corps. EPA may prohibit the specification
(including the withdrawal of specification) of any defined area as a
disposal site and is further authorized to deny or restrict the use of
any defined area as a disposal site for dredged or fill material
whenever EPA determines, after notice and opportunity for public
hearing, that the discharge of such materials will have an unacceptable
adverse effect on municipal water supplies, shellfish beds and fishery
areas, wildlife, or recreational areas. See CWA section 404(c).
ii. CWA Section 404 Permits Issued by States or Tribes Who Have Assumed
the CWA Section 404 Program
States or eligible Tribes may assume the CWA section 404 program,
as described in 40 CFR part 233. Currently, only three states (Florida,
Michigan, and New Jersey) and no Tribes have requested and received EPA
approval to administer the CWA section 404 program. State-issued CWA
section 404 permits for discharges of dredged or fill material upstream
or adjacent to Indian reservation waters covered by the baseline WQS
would need to ensure compliance with those standards. See 40 CFR
230.10(b)(1) and 233.20(a). Under CWA section 404(j), states or Tribes
who have assumed the CWA section 404 program must provide
[[Page 29516]]
copies of public notices for standard individual permits and for draft
general permits to EPA, except those for which permit review has been
waived. 40 CFR 233.51 and 233.13(b)(1). EPA's right to review may not
be waived for any permits for discharges with reasonable potential for
adverse impacts on waters of another state. 40 CFR 233.51(b)(3). EPA
proposes to amend this regulation to clarify that EPA's right to review
may not be waived for permits with reasonable potential to adversely
impact waters of another state or waters subject to federally
promulgated WQS.
Under 40 CFR 233.50, the EPA Regional Administrator may object to a
state or Tribe-issued CWA section 404 permit if the permit would not
ensure compliance with the 404(b)(1) guidelines. A state or Tribe that
has assumed the CWA section 404 program may not issue a CWA section 404
permit unless EPA's objections or requirements for a permit condition
have been resolved. 33 U.S.C. 1344(j); 40 CFR 233.50(f). States,
Tribes, or any other interested person may request a public hearing on
the Regional Administrator's comments, objection, or permit
recommendations. 33 U.S.C. 1344(j); 40 CFR 233.50(d)-(f). The Regional
Administrator must hold a hearing whenever requested by the entity
proposing to issue the permit, or if warranted based on significant
public interest. 33 U.S.C. 1344(j); 40 CFR 233.50(g)-(i). If a state or
Tribe that has assumed CWA section 404 authority does not prepare a
permit revised to satisfy EPA's objection or requirement for a permit
condition, or deny the permit, EPA transfers processing of the permit
application to the Corps of Engineers. 33 U.S.C. 1344(j); 40 CFR
233.50(h)-(j). If a permit is transferred to the Corps of Engineers,
and EPA has concerns that the proposed permit would cause or contribute
to a violation of WQS, including these baseline WQS if codified, EPA
could provide comments to the Corps of Engineers.
EPA intends to work closely with the appropriate Tribe in
determining whether a proposed CWA section 404 permit would comply with
the baseline WQS. EPA would follow applicable requirements regarding
public participation and intends to coordinate as appropriate with
adjacent states and Tribes, and other interested parties when
implementing the standards.
C. Section 401 Certifications
Under section 401 of the CWA, a Federal agency may not issue a
permit or license to conduct any activity that may result in any
discharge into waters of the United States unless a section 401 water
quality certification is issued, or certification is waived.\57\ States
and authorized Tribes in which the discharge would originate or will
originate are generally responsible for issuing water quality
certifications.58 59 In cases where a state or Tribe does
not have authority, EPA is responsible for issuing certification. 33
U.S.C. 1341(a)(1). Some of the major Federal licenses and permits
subject to CWA section 401 include CWA section 402 permits issued by
EPA, CWA section 404 permits issued by the Corps, Federal Energy
Regulatory Commission (FERC) licenses for hydropower facilities and
natural gas pipelines, and Rivers and Harbors Act of 1899 section 9 and
10 permits.
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\57\ EPA recently proposed revisions to the Clean Water Act
Section 401 Certification Rule located at 40 CFR part 121. See Clean
Water Act Section 401 Water Quality Certification Improvement Rule,
87 FR 35318 (June 9, 2022).
\58\ ``Authorized tribes'' in this section refers to tribes that
are authorized to administer the CWA section 401 program due
treatment in a similar manner as a state. See 40 CFR 131.4(c).
\59\ ``Authorized Tribes'' in this section refers to Tribes that
are authorized to administer the CWA section 401 program due
treatment in a similar manner as a state. See 40 CFR 131.4(c).
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Tribes may receive TAS for section 401 when eligible for TAS to
administer the section 303(c) program for water quality standards. 40
CFR 131.4(c) (``Where EPA determines that a Tribe is eligible to the
same extent as a State for purposes of water quality standards, the
Tribe likewise is eligible to the same extent as a State for purposes
of certifications conducted under Clean Water Act section 401.''). To
date, 81 federally recognized Tribes (out of 574) have received TAS for
section 401 concurrently with obtaining TAS for section 303(c).\60\
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\60\ EPA recently proposed a section 401-specific set of
requirements and procedures for tribes seeking TAS for purposes of
making section 401(a)(1) and 401(d) certification decisions and for
exercising their statutory rights as a ``neighboring jurisdiction''
under section 401(a)(2). 87 FR 35370, June 9, 2022. This proposed
approach would provide an alternate path for tribes wishing to
obtain TAS status only for section 401 and not also for section
303(c).
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i. CWA Section 401 Certification by Authorized Tribes
In circumstances where a Tribe has obtained authority to administer
the CWA section 401 program due to treatment in a similar manner as a
state, the Tribe is authorized to issue certifications under CWA
section 401 (see 40 CFR 131.4(c)). In acting on a certification request
for a federally licensed or permitted activity which may result in a
discharge that originates in Indian reservation waters covered by the
baseline WQS, the Tribe would determine whether any such discharge will
comply with the applicable provisions of sections 301, 302, 303, 306,
and 307 of the CWA, which would encompass the baseline WQS. See 33
U.S.C. 1341(a)(1). In many cases, the applicable baseline WQS,
including the narrative criteria, would provide a basis for the Tribe
to make its determination on a certification request. In cases where
the Tribe needs to evaluate specific parameters, the Tribe could
request EPA to derive numeric translations for those parameters to aid
the Tribe in making its determination.
ii. CWA Section 401 Certification by EPA
The EPA Administrator is the CWA section 401 certifying authority
for any activity requiring a Federal license or permit that may result
in a discharge into navigable waters in Indian country where Tribes
have not obtained authority to administer the CWA section 401 program.
See 33 U.S.C. 1341(a)(1). In these situations, if the proposed baseline
WQS are finalized, the Administrator would be able to rely on the
baseline WQS among other water quality requirements when deciding
whether to grant or deny section 401 certifications, or to develop
conditions. The Administrator must provide public notice of receipt of
a CWA section 401 certification request. See id.
iii. Authorized Tribes and CWA Section 401(a)(2)
Under CWA section 401(a)(2), the Administrator provides notice to
states and authorized Tribes if the Administrator determines that a
discharge originating in another jurisdiction may affect their water
quality. See 33 U.S.C. 1341(a)(2). After receiving such notice from the
Administrator, authorized Tribes may raise objections to the issuance
of the license or permit if they determine that the discharge will
violate their water quality requirements.
Under the CWA section 401(a)(2) process, the licensing or
permitting Federal agency must notify the Administrator upon receipt of
an application for a Federal license or permit and related
certification. Id. Within 30 days of receiving this notification from
the licensing or permitting Federal agency, the Administrator may
determine that a discharge originating in another jurisdiction may
affect the water quality of any other state or authorized Tribe. Id. If
the Administrator determines that a discharge may affect the water
quality of another state or authorized Tribe, the Administrator is
required to notify that
[[Page 29517]]
state or authorized Tribe, the licensing or permitting Federal agency,
and the applicant. Id. The state or authorized Tribe has a 60-day
opportunity after receiving the notice to determine whether the
discharge will violate any of its water quality requirements. If they
determine that the action will violate their water quality
requirements, they may raise an objection to the issuance of the
license or permit to EPA and the Federal agency in writing and request
a public hearing. See id. The Federal agency issuing the license or
permit must hold a public hearing if requested by the state or
authorized Tribe in these circumstances. Id. The licensing or
permitting Federal agency will consider the recommendations of the
state or authorized Tribe and the Administrator, as well as any
additional evidence presented at the hearing, and determine whether
additional conditions may be necessary to assure compliance with
applicable water quality requirements. See id. If imposition of
additional conditions cannot assure such compliance, the Federal agency
cannot issue the license or permit. Id.
D. Section 303(d) Impaired Water Listings and Total Maximum Daily Loads
WQS provide the basis for identifying impaired waters (waters not
attaining the applicable standards) and developing TMDLs pursuant to
CWA section 303(d). Where applicable, the baseline WQS would provide
this basis. On September 26, 2016, EPA promulgated the final rule
``Treatment of Indian Tribes in a Similar Manner as States for Purposes
of Section 303(d) of the Clean Water Act.'' \61\ That rule establishes
regulatory procedures for eligible Tribes to apply for and obtain
authority to identify impaired waters on their reservations and to
establish TMDLs. 40 CFR 130.16. CWA section 303(d) provides for states
and authorized Tribes to: (1) develop lists of impaired waters (and
establish priority rankings for waters on the lists) and (2) establish
TMDLs for these waters.
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\61\ 81 FR 65901, September 26, 2016.
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By listing impaired waters, a state or authorized Tribe identifies
those waters in its territory that are not currently meeting applicable
WQS, and/or are not expected to meet applicable WQS, even after the
application of the TBELs required by CWA sections 301(b) and 306. 40
CFR 130.2(j). For purposes of determining whether a water body is
impaired and should be included on the CWA section 303(d) list, EPA
regulation requires states and authorized Tribes to assemble and
evaluate all existing and readily available water quality-related data
and information. 40 CFR 130.7(b)(5). These data and information may
include, for example, physical, chemical, and biological data,
including fish and shellfish tissue concentration data. EPA's
regulation includes a non-exhaustive list of water quality-related data
and information to be assembled and evaluated. Id. States and
authorized Tribes establish priorities for development of TMDLs for
waters on their CWA section 303(d) list considering the severity of the
pollution and the uses to be made of the waters. 40 CFR 130.7(b)(4).
States and authorized Tribes submit the list of impaired waters to EPA
for review and approval.
Under the CWA, each state and authorized Tribe must, ``from time to
time,'' establish and submit TMDLs for pollutants causing impairments
in all the waters on its CWA section 303(d) list in accordance with the
priority ranking. CWA sections 303(d)(1)(C) and 303(d)(2). A TMDL is a
planning document intended to address impairment of waters. It includes
the calculation and allocation to point and nonpoint sources of the
maximum amount of a pollutant that a water body can receive and still
meet applicable WQS. TMDLs must be established at a level necessary to
implement the applicable WQS with seasonal variations and a margin of
safety which accounts for any lack of knowledge concerning the
relationship between effluent limitations and water quality. CWA
section 303(d)(1)(C). Where a TMDL makes allocation tradeoffs between
point and nonpoint sources, the TMDL record must also demonstrate
``reasonable assurance'' that the nonpoint source allocations will be
achieved. 40 CFR 130.7(c)(1) and 130.2(i). The state or authorized
Tribe submits the TMDL to EPA for review and approval. EPA notes that
CWA section 303(d) does not establish any new implementation
authorities for control of nonpoint source pollution, and nonpoint
source load allocations are primarily implemented through existing
state, local, Tribal, and other Federal programs.\62\
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\62\ Memorandum: New Policies for Establishing and Implementing
TMDLs. See https://www3.epa.gov/npdes/pubs/owm0124.pdf.
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To date, no Tribe has applied for TAS for the CWA section 303(d)
program. EPA is providing technical assistance and is encouraging
Tribes to apply for TAS. When a Tribe lacks TAS authorization for CWA
section 303(d), EPA generally is the authority for establishing
impaired waters lists and TMDLs in Indian country. Where a Tribe is not
in a position to apply for and receive TAS for the CWA section 303(d)
program and is interested in having EPA develop lists or TMDLs for
particular waters, EPA will work with the Tribe to determine
appropriate next steps, consistent with available resources. In
instances where EPA establishes lists of impaired waters and TMDLs for
waters covered by baseline WQS or other WQS applicable in Indian
country, EPA would work closely with impacted Tribes and would provide
for full and meaningful public participation in both the listing and
TMDL development processes.
VIII. Effective Date of the Baseline Water Quality Standards
EPA proposes to make a final rule effective for CWA purposes 120
days after it is published in the Federal Register. On that delayed
effective date, baseline WQS would therefore become the CWA-effective
WQS applicable to Indian reservation waters covered by a final rule. It
would apply to all Indian reservation waters except those waters
automatically excluded from coverage and those which the Regional
Administrator has approved exclusion from coverage as discussed in
sections IV.A and B of this preamble. EPA is proposing this delayed
effective date to allow adequate time for Tribes to coordinate with the
appropriate Regional Administrator regarding any possible exclusions
from coverage by baseline WQS.
As mentioned in section IV.B of this preamble, a Tribe should
communicate with the Regional Administrator after this proposal is
published in the Federal Register, but no later than 90 days after the
final rule is published, regarding Indian reservation waters to be
excluded from coverage under the final baseline WQS rule. EPA expects
that the Regional Administrator would decide, informed by consultation
with the Tribe, no later than 120 days after the final rule is
published in the Federal Register whether to approve an exclusion from
coverage under the final baseline WQS.
EPA invites comments on whether there should be a delayed effective
date and whether 120 days is an appropriate period of delay.
EPA further expects that after the final rule goes into effect for
CWA purposes, the Regional Administrator generally would no longer
exclude additional Indian reservation waters from coverage by the
baseline WQS. EPA proposes this approach in the interest of promoting
regulatory certainty and avoiding the confusion that could potentially
result
[[Page 29518]]
after the effective date if waters are alternately covered or not
covered by baseline WQS depending on the timing of discussions between
Tribes and Regional Administrators about exclusions.
EPA acknowledges, however, that limited circumstances may warrant
the ability of the Regional Administrator to exclude specific Indian
reservation waters from coverage after the baseline WQS are in effect.
EPA expects such circumstances would pertain to instances where a Tribe
communicates with the Regional Administrator about an exclusion after a
material change with respect to a Tribe's Indian reservation, for
example, when (1) a Tribe becomes newly federally recognized after the
effective date of a final rule and acquires Indian reservation lands or
(2) a Tribe that was duly approved by the Regional Administrator to be
excluded from coverage by baseline WQS later acquires new trust lands
outside the boundaries of a formal reservation after the effective date
of the final rule and wants to extend exclusion from coverage to the
newly acquired trust lands.
EPA invites comments on this approach to limiting the exclusion of
Indian reservation waters from coverage by baseline WQS after the final
rule goes into effect for CWA purposes. Additionally, EPA invites
comments on whether the proposed regulatory text should be amended to
reflect the selected approach.
IX. Conditions Under Which Baseline Water Quality Standards Would No
Longer Apply
Under the CWA, Congress gave states and authorized Tribes primary
responsibility for developing and adopting WQS for their respective
navigable waters (CWA sections 303(a) through (c)). Although EPA would
be promulgating baseline WQS for Indian reservation waters covered by a
final rule, federally recognized Indian Tribes retain the option to
seek TAS authority to administer the WQS program and adopt and submit
to EPA WQS consistent with CWA section 303(c) and EPA's implementing
regulation at 40 CFR part 131. As discussed earlier in this preamble,
EPA encourages and is committed to working with eligible Tribes to
obtain TAS to administer a WQS program and adopt new/revised WQS for
EPA approval.
Once a Tribe obtains TAS and submits WQS for EPA action, EPA will
review and would approve those WQS if they meet the requirements of CWA
section 303(c) and implementing regulation at 40 CFR part 131. Once a
Tribe's new WQS are approved by EPA, in accordance with proposed 40 CFR
131.XX(a)(2), the Federal baseline WQS will no longer apply.
Specifically, that provision excludes from coverage of the rule
``Indian reservation waters . . . where EPA has approved the applicable
state or tribal water quality standards.'' Thus, a Tribe's WQS will go
into effect for CWA purposes upon EPA's approval of the standards.\63\
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\63\ 40 CFR 131.21(c) provides that WQS adopted by an authorized
Tribe go into effect for CWA purposes upon EPA approval, ``unless
EPA has promulgated a more stringent water quality standard for the
State or Tribe that is in effect.'' Emphasis added. Where a more
stringent EPA-promulgated standard is in effect, 40 CFR 131.21(c)
goes on to provide that the less stringent Tribal WQS will go into
effect after EPA ``withdraws'' the more stringent Federal water
quality standard. Here, in accordance with the proposed scope of
coverage of the baseline WQS rule, 40 CFR 131.XX(a)(2) (excluding
from coverage of the rule ``Indian reservation waters . . . where
EPA has approved the applicable state or Tribal water quality
standards''), Tribal WQS will go into effect for CWA purposes upon
EPA approval regardless of stringency. Thus, because the baseline
WQS are no longer ``in effect'' for Indian reservation waters once
EPA has approved applicable Tribal WQS, there is no need to
``withdraw'' the baseline WQS for those waters.
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The public would have the opportunity to provide comment on the
Tribe's new/revised WQS submission and the exclusion of the relevant
Indian reservation waters from the baseline WQS rule upon EPA-approval
of those WQS during the Tribe's public comment period and hearing
associated with the proposed WQS submission. EPA would work with the
Tribe to ensure that it included a statement in its public notice that
exclusion from the scope of federally promulgated baseline WQS would be
a consequence of EPA's potential approval of the Tribe's new/revised
WQS. After approving an authorized Tribe's WQS, EPA would update the
public website that it intends to provide in the final rule to indicate
that the Tribe is no longer subject to the baseline WQS.
EPA invites comment regarding when Federal baseline WQS would no
longer apply to the Tribe's waters subject to the Tribe's new WQS once
approved by EPA.
X. Economic Analysis
The baseline WQS proposed in this rule would not themselves impose
costs on any entity. However, to best inform the public of the
potential impacts of this proposed rule, EPA has developed an analysis
of the potential control actions and costs that point source facilities
discharging into or upstream from waters covered by this rule may incur
as a result of implementing the baseline WQS. This analysis and the
methods and assumptions used in estimating costs are documented in
Economic Analysis for Potential Federal Baseline Water Quality
Standards for Indian Reservation Waters, which can be found in the
record for this rulemaking.
The current regulatory framework is the set of currently applicable
requirements under the CWA without this proposed rule. These
requirements include TBELs and WQBELs in NPDES permits. For purposes of
this economic analysis, point source costs only reflect incremental
changes that are needed to comply with new or more stringent WQBELs
derived from the proposed baseline WQS.
As discussed in section V.B of this preamble, the water quality
criteria in the proposed baseline WQS would consist of narrative water
quality criteria with binding procedures to translate the narrative
criteria into numeric values as needed for water quality regulatory
purposes. Although the procedures include several options to fit case-
by-case circumstances, for simplicity the economic analysis generally
relies on Option One discussed in section V.B. of this preamble: that
is, relying on EPA's national recommended CWA section 304(a) water
quality criteria to protect human health and aquatic life.
Although the focus of the cost analysis is to estimate control
costs for point sources, attaining the proposed baseline WQS may depend
on additional actions such as nonpoint source controls. Nonpoint source
controls, whether required through a nonpoint source program or
implemented voluntarily, may lead to nonpoint sources incurring costs
as an indirect result of the proposed baseline WQS. Conversely,
implementing nonpoint source controls may relieve a portion of the
estimated indirect burden on and cost to point sources within the same
watershed. However, quantitative evaluation of the potential control
needs beyond those potentially addressed under the NPDES program is not
possible given the limited available data. Thus, EPA identified the
types of controls and costs that may be incurred for nonpoint sources
but did not develop nationwide nonpoint source cost estimates.
EPA seeks comment on all aspects of the economic analysis
including, but not limited to, its assumptions relating to the current
regulatory framework, affected entities, implementation, and compliance
costs.
A. Identifying Affected Entities
EPA used a multi-step method for evaluating the effect of the
proposed
[[Page 29519]]
baseline WQS applying to point sources. This method included the
following steps: identification of potentially affected permittees,
sample selection, extrapolation, determining the need for WQBELs
(reasonable potential analysis), and projecting effluent limits.
EPA identified facilities discharging to Indian reservation waters
as well as facilities within a five-mile radius and discharging
upstream from Indian reservation waters. EPA focused its analysis on
the 57 major \64\ facilities identified; other facilities may also
incur costs and EPA invites comments from minor facilities that believe
they may be impacted. Seven of those facilities discharge directly to
Indian reservation waters, and all these are sewerage systems.\65\ Of
the 50 major facilities discharging upstream from Indian reservation
waters, 9 are industrial facilities, and 41 are sewerage systems. EPA
evaluated all 7 direct dischargers to Indian reservation waters and all
9 upstream industrial facilities and selected a sample of 10 upstream
sewerage systems with which to extrapolate for cost estimation
purposes.
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\64\ EPA uses the designation of ``major'' for municipal
discharges of 1 million gallons per day (MGD) or more, or serving a
population of 10,000 or more, and industrial discharges with a major
rating code over a specified value based on the presence of toxics
and size of discharge flow (EPA, 2010). Minor dischargers typically
do not have monitoring requirements for toxic pollutants so data to
evaluate reasonable potential for these facilities is often limited.
In addition, these dischargers may not contribute significantly to
instream loads even if such pollutants were present in the effluent
from these facilities. Thus, the potential for minor facilities to
incur costs as a result of the potential criteria is low, and minor
facilities were not included in the analysis. However, EPA
acknowledges minor facilities with smaller operating budgets, such
as those managed by smaller communities, could have more difficulty
complying with any additional requirements than would major
facilities. EPA also has programs and tools available to assist
Tribes in these situations, such as the Lagoon Wastewater Treatment
Action Plan, and various infrastructure funding opportunities.
\65\ Sewerage systems are those facilities both public and
private that collect and treat primarily domestic wastewaters. Some
EPA databases refer to sewerage systems as wastewater treatment
facilities (WWTFs), or wastewater treatment plants (WWTPs).
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B. Method for Estimating Costs
EPA evaluated compliance scenarios and associated costs for the
sample facilities based on available information about the facilities,
their treatment systems, and current effluent quality. EPA determined
whether a facility would most likely achieve compliance through
optimization, pollution prevention and source control, additional
effluent treatment, or alternative compliance mechanisms such as WQS
variances or dilution credits. In some cases, available information did
not clearly point to one compliance alternative. In such cases, EPA
estimated a range of costs for compliance.
EPA extrapolated costs to the remaining major upstream sewerage
systems from the sample based on facility flow. Most options include
one-time costs (e.g., costs to develop a pollution prevention program
or develop a WQS variance) and on-going or annual costs (e.g.,
financing the capital cost of constructing additional effluent
treatment, operation and maintenance [O&M] of treatment units,
maintaining a pollution prevention program).
C. Results
Total cost estimates range from $15.51 million in annualized costs
over 20 years at a 3 percent discount rate (with $6.1 million in one-
time costs) to $30.54 in annualized costs over 20 years at a 3 percent
discount rate (with $1.23 million in one-time costs). Using a discount
rate of 7 percent over 20 years, total annualized costs range from
$18.94 million (also with $6.1 million in one-time costs) to $36.45
million (also with $1.23 million in one-time costs). Total one-time
costs are larger in the low estimate than in the high estimate because
one-time WQS variance costs are often used in lieu of annualized
effluent treatment costs for facility-specific low estimates for
certain pollutants. The potential costs presented in the Economic
Analysis for Potential Federal Baseline Water Quality Standards for
Indian Reservation Waters are a product of a series of assumptions and
subsequent analyses that are intended to be both conservative and as
comprehensive as possible. The document identifies uncertainties in the
analysis associated with data limitations, potential pollutant load
reductions achievable, and the methods dischargers would use to comply
with potential requirements and permit conditions that affect the
estimated costs.
Promulgating baseline WQS for Indian reservation waters would
promote the implementation of pollution control measures and best
practices to help improve water quality and prevent future degradation
of Indian reservation waters, as well as potentially providing positive
water quality benefits to waters in adjacent jurisdictions. Improved
water quality for Indian reservation waters will benefit Tribes as well
as anyone who recreates on Indian reservation waters or values
environmental quality regardless of their current or anticipated uses
of Indian reservation waters.
Although implementation of baseline WQS is likely to yield
significant benefits, estimating the dollar value of these improvements
to Tribes may not be feasible. First, Tribes often express the
difficulty of placing a monetary value on ecosystem services, given the
belief that these resources are sacred and beyond any earthly value.
Second, estimating the value of water quality improvements to visitors
of Indian reservations is challenging due to the lack of data on site-
specific visitation, use (e.g., recreational fishing) and valuation.
Therefore, EPA provided a qualitative description of benefits
categories that may stem from baseline WQS. These benefits include
those related to human health, ceremonial and subsistence harvests of
fish and shellfish, recreation, and other social welfare improvements.
EPA anticipates, however, that the abovementioned benefits will
ultimately outweigh the potential estimated incremental costs
associated with promulgation of this rule and that this rule will help
address the environmental challenges Tribes are currently facing.
XI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review; and Executive
Order 14094: Modernizing Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to Executive Order 12866 review have been documented
in the docket. EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis, Economic Analysis
for Potential Federal Baseline Water Quality Standards for Indian
Reservations, is summarized in section XI of the preamble and is
available in the docket.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations at 40 CFR part 131 and
has assigned OMB control number 2040-0049.
[[Page 29520]]
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. 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 WQS. Thus, under the CWA, EPA's
promulgation of WQS establishes standards that a state or EPA
implements through the NPDES permit process. For this proposed rule, a
state (upstream dischargers) or EPA has discretion in developing
discharge limits, as needed to meet the standards. As a result of this
action, states and EPA will need to ensure that permits they issue
include any limitations on discharges necessary to comply with the
standards established in the final rule. In doing so, states or EPA
will have a number of choices associated with permit writing. While
implementation of the rule may ultimately result in new or revised
permit conditions for some dischargers, including small entities, EPA's
action, by itself, does not impose any of these requirements on small
entities. That is, the promulgated WQS are not self-implementing.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local, or Tribal governments or the
private sector.
E. Executive Order 13132 (Federalism)
This action does not have federalism implications. EPA is proposing
to promulgate Federal baseline WQS for Indian reservation waters that
currently do not have CWA-effective WQS in place. However, it will not
impose substantial direct compliance costs on state or local
governments, nor will it preempt state law. Thus, Executive Order 13132
does not apply to this action.
Consistent with EPA's policy to promote communications between EPA
and state and local governments, EPA nonetheless consulted with state
officials early in the process of developing the proposed action to
allow them to provide meaningful and timely input into its development.
On September 15, 2021, EPA consulted with state representatives from
the Association of Clean Water Administrators (ACWA) to hear their
initial views on the proposed regulatory changes. Participants raised
questions about EPA's implementation of baseline WQS under the CWA,
EPA's prioritization of Tribes obtaining TAS to administer their own
WQS programs, the ability of baseline WQS to be tailored to reflect
region or location-specific information, and how EPA would reconcile
differences between downstream WQS and upstream state WQS. EPA has
considered these comments in developing this proposal.
In keeping with the spirit of E.O. 13132, and consistent with EPA's
policy to promote communications between EPA and state and local
governments, EPA specifically solicits comment on this proposed rule
from state and local officials. In particular, EPA requests comment on
any provision in this proposed rule that state officials believe would
impose an undue burden on state WQS programs.
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This action has Tribal implications, however it will neither impose
substantial direct compliance costs on federally recognized Tribal
governments, nor preempt Tribal law. Its primary effect will be to
establish Federal WQS for waters of federally recognized Tribes with
Indian reservations that currently do not have CWA-effective WQS. It
could also affect Tribes with Tribal WQS applicable under the CWA to
waters adjacent to such reservations. As mentioned above, EPA-
promulgated standards are implemented through various water quality
control programs including the NPDES program. Under the CWA, EPA's
promulgation of WQS establishes standards that a state or EPA
implements through the NPDES permit process; EPA implements the NPDES
program in the majority of Indian country waters that would be subject
to this rule. For this proposed rule, a state (upstream dischargers) or
EPA has discretion in developing discharge limits, as needed to meet
the standards. While implementation of the rule may ultimately result
in new or revised permit conditions for some dischargers, which could
include Tribal governments, EPA's promulgation action, by itself, does
not impose any of these requirements on dischargers. In any case, in
accordance with proposed 40 CFR 131.XX(b), EPA would conduct timely and
meaningful consultation with Tribes on any EPA permit actions where
Tribal interests may be affected.
EPA consulted with Tribal officials under the EPA Policy on
Consultation and Coordination with Indian Tribes early in the process
of developing this regulation to allow them to provide meaningful and
timely input into its development. EPA notified the leaders of all 574
federally recognized Tribes and held a 90-day Tribal consultation and
coordination period from June 15 through September 13, 2021, to inform
development of the proposed rule.
The pre-proposal input that EPA received from Tribes during the
consultation and coordination process is documented in Summary Report
of Tribal Consultation and Coordination for the Proposed Rule: Federal
Baseline Water Quality Standards for Indian Reservations, available in
the docket for this proposed rule.
G. Executive Order 13045 (Protection of Children From Environmental
Health and Safety Risks)
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in E.O. 12866, and because EPA
does not believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children.
H. Executive Order 13211 (Actions That Significantly Affect Energy
Supply, Distribution, or Use)
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action pertains to water quality
standards, which do not regulate the supply, distribution, or use of
energy.
I. National Technology Transfer and Advancement Act of 1995
This proposed rulemaking does not involve technical standards.
J. Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations)
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color and/or
[[Page 29521]]
Indigenous peoples) and low-income populations.
Environmental impacts to Tribes may be considered under the
category of environmental justice in recognition that Tribal
communities may at times be among the communities disproportionately
impacted by environmental degradation. Where Tribal populations are
part of a larger non-Tribal community, many of the environmental
justice considerations are very similar to those of other vulnerable
and underserved populations. However, there is a unique set of
environmental justice considerations for Tribes, particularly where
Tribal members are exercising their cultural practices. For EPA, the
government-to-government relationship and trust responsibility that the
Federal Government has with federally recognized Tribal governments
further sets environmental justice issues for Tribes apart from those
in other communities.\66\
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\66\ EPA recognizes our responsibility to work with both
federally recognized Tribes and all other indigenous peoples, per
the EPA Policy on Environmental Justice for Working with Federally
Recognized Tribes and Indigenous Peoples (2014) to address their EJ
concerns. As defined in the policy, Indigenous Peoples ``includes
state-recognized tribes; indigenous and tribal community-based
organizations; individual members of federally recognized tribes,
including those living on a different reservation or living outside
Indian country; individual members of state-recognized tribes;
Native Hawaiians; Native Pacific Islanders; and individual Native
Americans.'' Policy available at https://www.epa.gov/environmentaljustice/epa-policy-environmental-justice-working-federally-recognized-tribes-and.
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EPA and other Federal agencies focus on resolving EJ issues
affecting Tribes through a unique combination of approaches which
center on (1) supporting the Tribes' sovereignty and exercise of their
own environmental authorities and (2) taking direct action on behalf of
the Tribes as part of the Federal Government's Tribal trust
responsibility. This proposed rule is relying on a combination of both
approaches, as discussed below.
EPA believes that the human health or environmental conditions that
exist prior to this action result in or have the potential to result in
disproportionate and adverse human health or environmental effects on
Tribes. Many Tribes rely on aquatic and aquatic-dependent resources for
their lifeways. Attaining and sustaining clean water to protect human
health is essential to ensuring Tribes can continue to practice these
traditional lifeways. However, due to water quality issues, many Tribes
are unable to do so. The contamination of aquatic food resources above
levels safe to consume in desired quantities results in what is often
described as a suppression effect. An illustration of a suppression
effect is when the fish consumption rate for a given Tribe reflects a
current level of consumption that is artificially diminished relative
to the Tribe's heritage fish consumption rate.67 68 69
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\67\ National Environmental Justice Advisory Council (NEJAC).
2001. Fish Consumption and Environmental Justice. https://www.epa.gov/sites/default/files/2015-02/documents/fish-consump-report_1102.pdf. p. vii. Accessed 10/20/2021.
\68\ EPA. 2016. Idaho Tribal Fish Consumption Survey. https://www.epa.gov/columbiariver/idaho-tribal-fish-consumption-survey.
Accessed 1/26/2022.
\69\ Northwest Indian Fisheries Commission, 2019. Opposition to
EPA's 2019 Actions to Roll Back Washington's Human Health Water
Quality Criteria, Docket No. EPA-HQ-OW-2015-0174. Available online
at https://www.regulations.gov/comment/EPA-HQ-OW-2015-0174-0970.
Accessed 10/18/21.
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The negative impacts of suppression extend well beyond Tribal
health, leading to consequences for Tribal economies and cultures as
well. Given that aquatic resources often support a Tribe's cultural
self-determination and can be pivotal to the economic well-being of the
community, impacts to these resources can affect the very foundation of
Tribal social and political organization.\70\ Impairments of aquatic
resources may also impact a Tribe's ability to provide for present and
future generations and the maintenance of their lifeways. Water quality
impacts may stretch even further into a Tribe's sacred practices when
members can no longer rely on their waters for ceremonial uses.\71\
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\70\ Ranco, D.J., O'Neill, C.A., Donatuto, J., & Harper, B.L.
2011. Environmental Justice, American Indians and the Cultural
Dilemma: Developing Environmental Management for Tribal Health and
Well-being. Environmental Justice 4;4, DOI: 10.1089/env.2010.0036.
\71\ Martin, C., Simonds, V.W., Young, S.L., Doyle, J.,
Lefthand, M., Eggers, M.J. Our Relationship to Water and Experience
of Water Insecurity among Aps[aacute]alooke (Crow Indian) People,
Montana. Int. J. Environ. Res. and Public Health 2021, 18, 582.
https://doi.org/10.3390/ijerph18020582. Accessed 1/26/2022.
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EPA believes that this action is likely to reduce existing
disproportionate and adverse effects on Indigenous peoples.
Specifically, the proposed rule provides several mechanisms for EPA, in
consultation with a Tribe, to address such issues. These mechanisms
include: flexibilities allowing for the consideration of Tribe-specific
fish consumption rates when translating narrative criteria into numeric
values; an opportunity for Tribes to protect culturally significant
waters by nominating them to be designated as outstanding national
resource waters; and the ability for EPA and Tribes to ensure the
protection of unique Tribal cultural and traditional uses while
implementing the baseline WQS. In short, implementing CWA-effective WQS
in Indian reservation waters would provide a strong basis for NPDES
permit limits and other controls that is not presently available to
protect such waters. Establishing the baseline WQS would also enhance
EPA's existing implementation in Indian country of section 401
certifications and other programs that rely on WQS in protecting Tribal
waters.
EPA additionally identified and addressed environmental justice
concerns by considering how this proposed rulemaking also promotes
Tribal sovereignty over Tribes' water resources. The processes
established in the rule would foster the active participation of Tribes
in EPA's administration of baseline WQS. This participation should, in
turn, improve Tribal understanding of CWA programs and may even help
remove perceived barriers for some Tribes to obtain authority to
administer CWA TAS programs themselves.
To achieve the benefits associated with a final rule, EPA
recognizes that some facilities may need to add pollution control
measures and incur additional compliance costs over time. This includes
an estimated 164 NPDES dischargers on Indian reservations potentially
covered by this rule and 274 NPDES dischargers located within 5 miles
upstream from those reservations.\72\ Most of these facilities are non-
Tribally owned. Nevertheless, approximately 118 tribally-owned
facilities could face added requirements. Given that this rule's
intention is to address disproportionate impacts currently faced by
Tribes, EPA realizes the importance of considering any potential
impacts Tribes may experience in association with implementation of a
final rule.
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\72\ Facilities 5 miles upstream from areas that would be
covered by baseline WQS were considered in the rule's economic
analysis. However, facilities located greater than 5 miles upstream
may be affected by the rule depending on local factors considered
during the downstream protection analysis for a given facility.
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Several Federal funding streams available to facilities that serve
Tribal communities in Indian country may help ensure that capital
improvement costs, which are estimated to be $1 million to $3 million
in aggregate, would not be passed on to ratepayers.\73\ The Federal
Tribal Infrastructure Task Force has developed a matrix summarizing the
various Federal assistance vehicles for water and wastewater treatment
services in Indian
[[Page 29522]]
country and Alaskan Native Villages.\74,75\
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\73\ See EPA's Economic Analysis for Potential Federal Baseline
Water Quality Standards for Indian Reservation Waters.
\74\ In 2007, the multi-agency Tribal Infrastructure Task Force
was created to develop and coordinate Federal activities in
delivering water infrastructure, wastewater infrastructure and solid
waste management services to tribal communities. EPA is a member of
the Task Force. See https://www.epa.gov/tribal/federal-infrastructure-task-force-improve-access-safe-drinking-water-and-basic-sanitation.
\75\ Tribal Infrastructure Task Force. 2018. Tribal Resource
Directory Matrix of Federal Assistance for Water and Wastewater
Treatment Services. https://www.epa.gov/tribal/tribal-resource-directory-matrix-federal-assistance-water-and-wastewater-treatment-services.
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Although there is funding for capital improvements, there is a
general lack of Federal funding sources to support operation and
maintenance (O&M) of such wastewater facilities. As a result, some
Tribal communities may need to contribute toward O&M needs, which are
estimated to range from approximately $50,000 to $500,000 in aggregate
per year. Tribal communities, along with other communities that receive
services, would need to fulfill these O&M needs with the resources and
expertise they have on hand or by imposing an additional burden on
ratepayers.
EPA anticipates, however, that the abovementioned benefits will
ultimately outweigh these potential pass-through costs and that this
rule will help address the environmental justice challenges Tribes are
currently facing Tribes.
For more information on how EPA provided meaningful participation
opportunities for Tribes in developing this proposal, please see
Section F. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments).
List of Subjects
40 CFR Part 131
Environmental protection, Indians--lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.
40 CFR Parts 230 and 233
Environmental protection, Administrative practice and procedure,
Indians--lands, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Water pollution control.
Michael S. Regan,
Administrator.
For the reasons set forth in the preamble, the EPA proposes to
amend 40 CFR parts 131, 230, and 233 as follows:
PART 131--WATER QUALITY STANDARDS
0
1. The authority citation for part 131 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
0
2. Add Sec. 131.XX to read as follows:
Sec. 131.XX Federal baseline water quality standards for Indian
reservation waters.
(a) Scope. The Federal water quality standards in this section
apply to all waters of the United States in Indian country except:
(1) Indian reservation waters for which EPA has promulgated other
Federal water quality standards;
(2) Indian reservation waters where EPA has explicitly found that a
state has jurisdiction to adopt water quality standards or authorized a
Tribe to adopt water quality standards pursuant to Sec. 131.8, and
where EPA has approved the applicable state or Tribal water quality
standards;
(3) Indian country waters on off-reservation allotments and off-
reservation dependent Indian communities; and
(4) Indian reservation waters of Tribes for which the Regional
Administrator approves an exclusion from application of the standards
in this section, informed by consultation with the Tribe. EPA will
maintain a publicly available list of Indian reservation waters that
are excluded from coverage of the baseline water quality standards in
this section at [EPA website to be inserted in final rule].
(b) Consultation with Tribes. In taking actions under this section,
the Regional Administrator will initiate Tribal consultation with the
Tribe(s) whose interests may be affected, consistent with applicable
EPA Tribal consultation policies.
(c) Federal baseline designated uses. The following designated uses
apply to all Indian reservation waters specified in paragraph (a) of
this section except where paragraph (i) of this section applies:
(1) Aquatic life. Protection and propagation of fish, shellfish,
and wildlife, which includes protection of human health of consumers of
fish, shellfish, and other aquatic life.
(2) Primary contact recreation. Provides for recreation in and on
the water.
(3) Cultural and traditional uses. Protection of cultural and
traditional uses of reservation waters.
(d) Federal baseline water quality criteria--(1) Narrative
criteria. The following narrative criteria apply to all waters covered
by paragraph (a) of this section and designated for the uses in
paragraph (c) of this section or as revised per paragraph (i) of this
section.
(i) All waters shall be free from toxic, radioactive, conventional,
non-conventional, deleterious or other polluting substances in amounts
that will prevent attainment of the designated uses specified in
paragraph (c) of this section and revised designated uses made under
paragraph (i) of this section, where appropriate;
(ii) All waters shall be free from adverse impacts to the chemical,
physical or hydrologic, or biological integrity caused by pollutants or
pollution that prevent the attainment of applicable designated uses
specified in paragraph (c) of this section and revised designated uses
made under paragraph (i) of this section, where appropriate;
(iii) All waters shall be free from substances attributable to
wastewater or other discharges where appropriate, that:
(A) Settle to form objectionable deposits;
(B) Float as debris, scum, oil, or other matter to form nuisances;
(C) Produce objectionable color, odor, taste, or turbidity; or
(D) Produce undesirable or nuisance aquatic life;
(iv) All waters shall be free from conditions that would likely
jeopardize the continued existence of any threatened or endangered
species listed under the Federal Endangered Species Act or result in
the destruction or adverse modification of such species' critical
habitat; and
(v) All waters shall maintain a level of water quality at their
pour points to downstream waters that provide for the attainment and
maintenance of the water quality standards of those waters, including
the waters of another state or a federally recognized Tribe.
(2) Procedures to translate narrative criteria. The Regional
Administrator shall utilize one of the options set forth in this
paragraph (d)(2) to derive numeric translations of the narrative
criteria in paragraph (d)(1) of this section for all purposes under
Clean Water Act (CWA) section 303(c) for specific parameters as
necessary to protect the applicable designated uses in paragraph (c) of
this section or as revised per paragraph (i) of this section for
specific water bodies.
(i) Translate the narrative criteria in paragraph (d)(1) of this
section using EPA's national recommended water quality criteria
published under section 304(a) of the CWA for parameters for which EPA
has section 304(a) criteria recommendations; or
[[Page 29523]]
(ii) Where information and/or data are available that more
accurately reflect site-specific conditions, translate the narrative
criteria in paragraph (d)(1) of this section using EPA's national
recommended water quality criteria published under section 304(a) of
the CWA modified to reflect site-specific conditions and aquatic
communities. The modifications shall protect the applicable designated
uses in paragraph (c) of this section or as revised per paragraph (i)
of this section and be based on a sound scientific rationale, including
EPA published methodologies if available, and Indigenous Knowledge, as
appropriate, incorporating where relevant:
(A) A fish consumption rate protective of Tribal fish consumers or
EPA's latest default fish consumption rate, if appropriate; or
(B) Available ambient monitoring data reflecting site-specific
water chemistry inputs; or
(C) Protective default water chemistry inputs; or
(D) Other scientifically defensible assessments, for example,
guidance published by EPA regions or those related to Endangered
Species Act consultation, and Indigenous Knowledge, as appropriate; or
(iii) Where appropriate, translate the narrative criteria in
paragraph (d)(1) of this section using water quality standards adopted
by the Tribe, or CWA-effective water quality standards applicable in an
adjacent or other relevant state(s) or Tribe(s), that are based on a
sound scientific rationale, reflect similar waterbody characteristics,
and ensure protection of the applicable designated use(s), taking into
consideration Indigenous Knowledge, as appropriate; or
(iv) Where applicable, translate the narrative criteria in
paragraph (d)(1) of this section using provisions of 40 CFR part 132
(the Water Quality Guidance for the Great Lakes System) to ensure the
translations are as protective as required by 40 CFR part 132; or
(v) Where paragraphs (d)(2)(i) through (iv) of this section are not
applicable, the Regional Administrator shall rely on existing CWA
implementation provisions in this part to derive numeric translations
of the narrative criteria in paragraph (d)(1) of this section where
necessary; and
(vi) The Regional Administrator shall maintain and make available
to the public for informational purposes a list of numeric translations
of the narrative criteria derived per paragraph (d)(2) of this section
at [location of list to be provided in final rule].
(e) Federal baseline antidegradation policy. (1) Existing instream
water uses and the level of water quality necessary to protect the
existing uses shall be maintained and protected.
(2) Where the quality of the waters exceeds levels necessary to
support the protection and propagation of fish, shellfish, and wildlife
and recreation in and on the water, that quality shall be maintained
and protected unless the Regional Administrator finds with written
agreement from the Tribe, after full opportunity for intergovernmental
coordination and public involvement, 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 such degradation
or lower water quality, the Regional Administrator shall assure water
quality adequate to protect existing uses fully. Further, the Regional
Administrator shall assure that there shall be achieved the highest
statutory and regulatory requirements for all new and existing point
sources and all Tribal-regulated cost effective and reasonable best
management practices for nonpoint source control.
(i) Before allowing any lowering of high water quality, pursuant to
paragraph (e)(2) of this section, the Regional Administrator shall find
with written agreement from the Tribe, after an analysis of
alternatives, that such a lowering is necessary to accommodate
important economic or social development in the area in which the
waters are located. The analysis of alternatives shall evaluate a range
of practicable alternatives that would prevent or lessen the
degradation associated with the proposed activity. When the analysis of
alternatives identifies one or more practicable alternatives, the
Regional Administrator shall only find with written agreement from the
Tribe, that a lowering is necessary if one such alternative is selected
for implementation.
(ii) [Reserved]
(3) Where high quality waters constitute an outstanding national
resource, such as waters of national and Tribal parks and wildlife
refuges and waters of exceptional recreational, ecological, or cultural
significance, that water quality shall be maintained and protected.
(4) In those cases where potential water quality impairment
associated with a thermal discharge is involved, the decision to allow
such degradation shall be consistent with section 316 of the Clean
Water Act.
(f) Federal baseline antidegradation implementation methods--(1)
Applicability. The antidegradation policy in paragraph (e) of this
section and the antidegradation implementation methods in this
paragraph (f) shall apply to all Indian reservation waters of the
United States included in paragraph (a) of this section.
(i) The requirements of paragraphs (e) and (f) of this section
shall be followed when considering all requests to authorize new or
expanded regulated activities. Regulated activities include, but are
not limited to, any activity that requires a permit, license, or water
quality certification pursuant to sections 401, 402, and 404 of the
CWA.
(ii) Antidegradation protections will be addressed in new or
reissued general permits authorized, implemented, or administered by
the Regional Administrator either at the time the Regional
Administrator develops and issues the general permit or upon review of
an applicant's request to be covered by a general permit. The Regional
Administrator will describe in writing in the permit fact sheet how the
general permit is consistent with the antidegradation requirements of
this paragraph (f)(1)(ii) and the antidegradation policy in paragraph
(e) of this section.
(2) Existing instream use protection consistent with paragraph
(e)(1) of this section. For all waters, the Regional Administrator,
shall ensure that the level of water quality necessary to protect
existing uses is maintained. In order to achieve the requirement in
this paragraph (f)(2), the Regional Administrator shall consider
whether a regulated activity would lower the water quality to the
extent that it would no longer be sufficient to protect and maintain
the existing uses of that water body. If the lowering of water quality
would not protect and maintain the existing uses of that water body,
then the Regional Administrator would not allow the lowering of water
quality. Such consideration shall be based on all existing and readily
available water quality-related data and information, as well as any
additional water-quality related data and information submitted during
the public comment period for the authorization.
(3) High quality water protection consistent with paragraph (e)(2)
of this section. In determining which waters will receive high quality
water protection consistent with paragraph (e)(2) of this section, the
Regional Administrator will identify high quality water on a parameter-
by-parameter basis. Each parameter that is determined to be high
quality shall be considered and evaluated independently, consistent
with this paragraph (f)(3), at the time an
[[Page 29524]]
applicant requests authorization to lower high water quality. A
parameter is high quality if its water quality level exceeds its water
quality criterion in paragraph (d) of this section. The Regional
Administrator shall ensure that no regulated activity that results in a
lowering of high water quality occurs unless the components outlined in
paragraph (f)(3)(i) of this section are available and the Regional
Administrator has made a finding with written agreement from the
relevant Tribe, consistent with paragraph (f)(3)(ii) of this section.
If the Tribe does not provide its written agreement, then the Regional
Administrator will maintain the current high water quality.
(i) When determining whether to allow a lowering of high water
quality for one or more parameters that exceed levels necessary to
support the protection and propagation of fish, shellfish, and wildlife
and recreation in and on the water, the Tribe and Regional
Administrator will consider the following components and information:
(A) Identifying information. Name of the applicant, a description
of the nature of the applicant's business and the pollutants to be
discharged, location of the discharge, the name of and any water
quality data for the receiving water body, daily maximum and average
flow to be discharged, and effluent characterization.
(B) Analysis of alternatives. Identification and evaluation of a
range of practicable alternatives that would prevent or lessen the
degradation associated with the proposed activity to determine whether
the degradation of water quality is necessary. When the analysis of
alternatives identifies one or more practicable alternatives, the
Regional Administrator shall only find with written agreement from the
Tribe that a lowering of high water quality is necessary, consistent
with paragraph (e)(2)(ii) of this section, if one such alternative is
selected for implementation.
(C) Socio-economic analysis. Identification and evaluation of the
social and economic development benefits to the area in which the
waters are located that will be foregone if the lowering of water
quality is not allowed. Along with the analysis of alternatives, the
socio-economic analysis is used to determine whether the lowering of
high water quality will accommodate important economic and social
development in the area in which the water is located. The ``area in
which the waters are located'' shall be determined on a case-by-case
basis and shall include all areas directly impacted by the proposed
regulated activity. Factors that must be considered in the socio-
economic analysis include, but are not limited to, the ecological and
economic importance of the affected waters, the importance of the
development to the affected community, and the socio-economic health of
the affected community as determined by appropriate analytical methods.
(ii) The Regional Administrator shall make a finding that a
lowering of high water quality is necessary to accommodate important
social and economic development in the area in which the water is
located only if the information in paragraph (f)(3)(i) of this section
supports such a conclusion and the Tribe has provided written
agreement.
(A) If the lowering of high water quality is necessary to
accommodate important social or economic development goals, and the
Tribe has provided its written agreement, the Regional Administrator
may allow a lowering of the high water quality as long as one of the
alternatives identified in paragraph (f)(3)(i)(B) of this section is
selected for implementation and incorporated into the authorization for
the activity. If no practicable alternative was identified by the
analysis of alternatives, but the lowering of high water quality will
accommodate important social or economic development and the Tribe has
provided written agreement, the Regional Administrator may allow the
lowering of high water quality. If a non-degrading practicable
alternative is selected, no lowering of the high water quality will
occur, and the Regional Administrator does not need to allow the
lowering.
(B) In no event will the Regional Administrator allow water quality
to be lowered below the level required to fully protect existing and
designated uses.
(C) To fulfill intergovernmental coordination, the Regional
Administrator shall notify local, state, and Federal agencies that
operate in the area impacted by the activity and request comment on the
preliminary decision to allow a lowering of water quality in a high
quality water based on whether it is necessary to accommodate important
social and economic development in the area of the waters impacted by
the activity.
(D) To ensure the opportunity for public involvement, the Regional
Administrator shall provide public notice following EPA's own
procedures and request public comment on the preliminary decision to
allow a lowering of high water quality. In addition, the Regional
Administrator will rely on any existing public notification and input
procedures in place for the Tribe. The preliminary decision will
provide relevant information regarding the lowering of high water
quality, including the alternatives analysis, socio-economic analysis,
the estimated amount of assimilative capacity available in the water
body, and the estimated amount of assimilative capacity to be utilized
by the proposed activity.
(E) The Regional Administrator's authorization of the regulated
activity shall serve as notice of the final decision on whether to
allow a lowering of high water quality.
(F) Before allowing any degradation of high water quality, the
Regional Administrator shall identify point sources and Tribal-
regulated nonpoint sources that discharge to, or otherwise impact, the
receiving water. The Regional Administrator shall coordinate with other
agencies, as necessary, to assure compliance with the highest statutory
and regulatory requirements for all new and existing point sources and/
or all Tribal-regulated cost-effective and reasonable best management
practices for non-point source control. If compliance with the highest
statutory and regulatory requirements for all new and existing point
sources and all Tribal-regulated cost-effective and reasonable best
management practices for non-point sources cannot be assured, the
Regional Administrator will not allow a lowering of high water quality.
(4) Outstanding national resource water protection consistent with
paragraph (e)(3) of this section. For Indian reservation waters
assigned as Outstanding National Resource Waters, the Regional
Administrator shall ensure, through the application of appropriate
controls on point and Tribal-regulated nonpoint pollutant sources, that
water quality is maintained and protected. No new or expanded regulated
discharges will be allowed to Outstanding National Resource Waters or
tributaries to such waters that would result in lower water quality
unless it is on a short term and temporary basis, consistent with
paragraph (f)(4)(v) of this section.
(i) Any person or entity may nominate a specific Indian reservation
water with applicable baseline water quality standards under this
section to be assigned as an Outstanding National Resource Water. The
person or entity may transmit a written nomination to the Regional
Administrator and the Tribe, at any time, including why the Indian
reservation water warrants Outstanding National Resource Water
protection.
[[Page 29525]]
(ii) The Regional Administrator shall determine with written
agreement from the Tribe whether the nominated water qualifies as an
Outstanding National Resource Water as described in paragraph (f)(4) of
this section.
(iii) The Regional Administrator shall issue a public notice,
utilizing EPA's own procedures and any existing Tribal public notice
procedures, regarding the decision to assign a water as an Outstanding
National Resource Water.
(iv) The Regional Administrator will maintain a comprehensive list
of the Indian reservation waters that have been assigned as Outstanding
National Resource Waters consistent with paragraph (e)(3) of this
section at [location of list to be provided in final rule].
(v) The Regional Administrator may allow short-term, temporary
water quality degradation in an Outstanding National Resource Water
only if the short-term, temporary degradation is limited to the
shortest possible time, does not impact existing uses, and does not
alter the essential or special characteristics that make the Indian
reservation water an Outstanding National Resource Water. For purposes
of this section, short-term shall be considered any period that is
measured in the context of weeks to months, not years.
(g) Policy on dilution allowances and mixing zones. In conjunction
with the issuance of CWA section 402 and 404 permits for discharges to
Indian reservation waters covered in paragraph (a) of this section:
(1) Dilution allowances. Where the discharge has rapid and complete
mixing with the receiving water, a dilution allowance may be
established by the Regional Administrator at the time a CWA section 402
or section 404 permit is issued, renewed, or materially modified which
is in effect as long as the permit remains in effect.
(2) Mixing zones. Where the discharge does not have rapid and
complete mixing with the receiving water, a mixing zone may be
established by the Regional Administrator at the time a CWA section 402
or section 404 permit is issued, renewed, or materially modified which
is in effect as long as the permit remains in effect.
(i) Mixing zone means an allocated impact zone where water quality
criteria can be exceeded only if acutely toxic conditions are
prevented.
(ii) Mixing zones shall not be authorized for a pollutant when the
receiving water does not meet water quality criteria for that
pollutant. Effluent limits established consistent with the assumptions
and requirements of a wasteload allocation for the discharge in an EPA-
approved or EPA-established total maximum daily load (TMDL) are
acceptable if otherwise in accordance with this section.
(iii) Mixing zones shall not be authorized where they may fail to
protect the applicable designated uses in paragraph (c) of this section
or as revised per paragraph (i) of this section of the receiving water
body, as a whole, including, but not limited to, any of the following
scenarios:
(A) Impairment to the integrity of the aquatic community, including
interference with successful spawning, egg incubation, rearing, or
passage of aquatic life.
(B) Discharges into shellfish beds.
(C) Lethality to aquatic life passing through the mixing zone.
(D) Heat in the discharge that may cause thermal shock, lethality,
or loss of cold water habitat or attract aquatic life to a toxic
discharge.
(E) Conditions that impede or prohibit recreation in or on the
water body.
(iv) Mixing zones shall not be authorized for pathogens, pathogen
indicators, or bioaccumulative pollutants in the discharge, unless the
Regional Administrator can demonstrate, after consideration of the
effects of the mixing zone (including potential bioaccumulation within
specific trophic levels of resident species or other relevant factors),
that the designated use of the water body as a whole will be protected.
Bioaccumulative pollutant means a pollutant that is taken up and
retained by an aquatic organism from any surrounding media (e.g.,
water, food, sediment).
(v) Mixing zones shall not overlap.
(vi) Water quality within an authorized mixing zone is allowed to
exceed chronic water quality criteria for those parameters established
by the Regional Administrator through the CWA section 402 or section
404 permit. Acute water quality criteria may be exceeded for such
parameters within the zone of initial dilution inside the mixing zone.
Acute criteria shall be met as near to the point of discharge as
practicably attainable. Water quality criteria shall not be exceeded
outside of the boundary of a mixing zone as a result of the discharge
for which the mixing zone was authorized.
(vii) Mixing zones shall be no larger than necessary, and the
concentrations of pollutants present shall be minimized. Mixing zones
shall meet the following restrictions:
(A) Mixing zones in flowing waters shall not:
(1) Extend in a downstream direction for a distance from the
discharge port(s) greater than 10 times the stream width plus the depth
of water over the discharge port(s);
(2) Extend upstream for a distance of over 100 feet;
(3) Utilize greater than 25% of the applicable critical low flow
when based on steady-state modeling;
(4) Utilize greater than 25% of the flow when based on dynamic
modeling; nor
(5) Occupy greater than 25% of the width of the water body.
(B) Mixing zones in nonflowing waters shall not:
(1) Exceed 10% of the volume of the water body;
(2) Exceed 10% of the surface area of the water body (maximum
radial extent of the plume regardless of whether it reaches the
surface); nor
(3) Extend beyond 15% of the width of the water body.
(viii) Critical low flow means:
(A) The 1Q10 (the lowest one-day average flow event expected to
occur once every ten years) or 1B3 (the lowest one-day average flow
event expected to occur once every three years) flow rate for acute
aquatic life criteria.
(B) The 7Q10 (the lowest seven-consecutive-day average flow event
expected to occur once every ten years) or 4B3 (the lowest four-
consecutive-day average flow event expected to occur once every three
years) flow rate for chronic aquatic life criteria with a duration of
less than 30 days and human health criteria based on a short-term
toxicological effect.
(C) The 30Q10 (the lowest thirty-consecutive-day average flow event
expected to occur once every ten years), 30Q5 (the lowest thirty-
consecutive-day average flow event expected to occur once every five
years), or 30B3 (the lowest thirty-consecutive-day average flow event
expected to occur once every three years) flow rate for chronic aquatic
life criteria with a duration of 30 days or longer.
(D) The harmonic mean flow rate for human health criteria based on
lifetime exposure.
(ix) The Regional Administrator shall take the following elements
into consideration when reviewing outfall designs as part of mixing
zone applicability determinations and CWA section 402 permit
development:
(A) Promote rapid mixing to the extent practicable through careful
location and outfall design;
(B) Promote use of diffusers to the extent practicable; and
(C) Avoid shore-hugging plumes to the maximum extent practicable.
[[Page 29526]]
(h) Authorization for NPDES permit compliance schedules. When
appropriate, the Regional Administrator may include a compliance
schedule for water quality-based effluent limits in National Pollutant
Discharge Elimination System (NPDES) permits consistent with 40 CFR
122.47, to permittees discharging to Indian reservation waters covered
by paragraph (a) of this section.
(i) Federal administrative procedure to revise baseline designated
uses, add designated uses and establish water quality standards
variances. (1) The Regional Administrator may, upon the request of a
Tribe for its reservation waters, or based on the Regional
Administrator's identification, revise one or more designated uses in
paragraph (c) of this section and associated criteria, add additional
designated uses and associated criteria where such revisions will more
appropriately reflect the Tribe-specific use and value of waters
covered by paragraph (a) of this section, or establish water quality
standards variances that apply to specific parameter(s), water body/
waterbody segment(s), and permittee(s) covered by paragraph (a) of this
section, as specified in the water quality standards variance. Any such
designated use revision or addition, and associated criteria revisions,
shall be consistent with Sec. Sec. 131.10 and 131.11. Any such water
quality standards variance shall be consistent with Sec. 131.14.
(2) For any revision or addition of a designated use and associated
criteria or water quality standards variance established under
paragraph (i)(1) of this section, the Regional Administrator shall
first provide for public notice of a public hearing on the proposed
revision or addition to the designated use(s) and associated criteria
and/or water quality standards variance at least 45 days in advance of
the public hearing and hold a 45-day public comment period on the
proposal, consistent with Sec. 131.20(b) and EPA's public
participation regulation at 40 CFR part 25. For any such proposal, the
Regional Administrator shall prepare and make available to the public
supporting documents identifying the specific surface water(s) affected
and include the justification for each proposed designated use revision
and/or water quality standards variance consistent with the
requirements of the CWA and EPA's implementing regulation, specifically
at Sec. Sec. 131.10 and 131.14, respectively. The documents shall be
made available to the public at least 30 days in advance of the date of
a public hearing consistent with 40 CFR 25.5.
(3) Where the Regional Administrator makes a final decision to
revise the designated use and associated criteria, add a designated use
and associated criteria, or establish a water quality standards
variance, those changes become applicable for CWA purposes, consistent
with the requirements of the CWA and EPA's regulations including
Sec. Sec. 131.10 and 131.14. For water quality standards variances,
those CWA purposes are limited to purposes of developing NPDES permit
limits under section 301(b)(1)(C) of the CWA, where appropriate, and
issuing certification under section 401 of the CWA pursuant to Sec.
131.14(a)(3).
(4) The Regional Administrator shall maintain and make available to
the public for informational purposes an updated list of designated use
revisions, additions, and the associated criteria, as well as water
quality standards variances established pursuant to this paragraph (i)
at [location of list to be provided in final rule]. The Regional
Administrator shall also maintain and make available to the public the
supporting documents for each designated use revision, addition, and
water quality standards variance.
(5) Nothing in this paragraph (i) shall limit the Administrator's
authority to revise the designated uses in paragraph (a) of this
section or establish a water quality standards variance through
subsequent Federal rulemaking.
(j) Applicability date. The Federal water quality standards in this
section will become the applicable water quality standards, effective
for CWA purposes, for the waters identified in paragraph (a) of this
section [DATE 120 DAYS AFTER THE FINAL RULE IS PUBLISHED IN THE FEDERAL
REGISTER].
(k) EPA implementation of the Federal baseline water quality
standards of this section in waters of the Great Lakes system. In
making decisions under the CWA based on the water quality standards of
this section for waters located in the Great Lakes System, as defined
in 40 CFR 132.2, EPA will ensure that such decisions are consistent
with the requirements for water quality standards, antidegradation
policies, and implementation procedures for the Great Lakes System in
40 CFR part 132, as well as the water quality standards of this
section.
PART 230--SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF
DISPOSAL SITES FOR DREDGED OR FILL MATERIAL
0
3. The authority citation for part 230 is revised to read as follows:
Authority: 33 U.S.C. 1344(b) and 1361(a).
0
4. Amend Sec. 230.10 by revising paragraph (b)(1) to read as follows:
Sec. 230.10 Restrictions on discharge.
* * * * *
(b) * * *
(1) Causes or contributes, after consideration of disposal site
dilution and dispersion, to violations of any applicable State water
quality standard or federally promulgated water quality standard;
* * * * *
PART 233--404 STATE PROGRAM REGULATIONS
0
5. The authority citation for part 233 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
0
6. Amend Sec. 233.51 by revising paragraph (b)(3) to read as follows:
Sec. 233.51 Waiver of review.
* * * * *
(b) * * *
(3) Discharges with reasonable potential for adverse impacts on
waters of another State or on waters subject to federally promulgated
water quality standards;
* * * * *
[FR Doc. 2023-09311 Filed 5-4-23; 8:45 am]
BILLING CODE 6560-50-P