[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

[[Page 29497]]

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

[[Page 29498]]

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].
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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)).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

     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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \25\ See https://www.epa.gov/sites/default/files/2015-09/documents/pwm_chapt_01.pdf.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \31\ See Current Water Quality Criteria Tables at https://www.epa.gov/wqc.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \35\ See https://www.epa.gov/wqs-tech/water-quality-standards-tools-tribes.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \36\ Methodology for Deriving Ambient Water Quality Criteria for 
the Protection of Human Health (2000), EPA-822-B-00-004, October 
2000.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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
.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.''

---------------------------------------------------------------------------

[[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