WSP03524

• File Number: 8273.500
• Description: Colorado River Basin Salinity Control - Federal Agencies - EPA
• Basin: Colorado Mainstem
• Water Division: 5
• Date: 11/8/1983
• Title: Federal Register - Environmental Protection Agency Part II
• Water Supply Pro - Doc Type: Publication

and. Regulatiotls
.'Il

the final Rule. As explainedejn the
preamble. Ihe Agency was persuaded by
the arguments.-that U~e're;ar~;i.tthererit
conceptual and.prdbednf81tlifficulties in
balancing the. benefits df achieving the
Section 101(a)(2) goals vers~the costs.
The final regulation avoids (hase
problems while'lltill recogni~ing the
relevance aI-economic -factors in
determining attainability. Tbe Agency
has retained the concept that economic
analysis be judged on substantial -and
widespread economic ~nd social impact.

DE/n/ngAtta/nable Uses

Several recommendations :were made
to delete references to SectidJ:l301(C)
from the definition 'Of the minimum
baseline technology defining' when s use
is considered attainable and ~c8nnijt be
m09ified or remo,ved. They al,so
suggested making 301(c) waiVers snbject
. to the requirements of propOlied
~ 131.13(c).The Agency believes thatit
is appropriate to use an applicable
sections of the Actin defining the
minimum technology based
r~quirements of the Act; sectign 301(c} is
one ,such section. In addition.;Section
301(c) prescribes the eligibility
requirements for a Section 30t waiver.
Therefore; EPA has not made,:the.
suggested changes relating toCSection
301(cl.

Others pointed out that the proposed
rule did.not, but should, allowamlil of
point and nonpoit'H source cOQ;'trols in
determining whether a use Is *ttain~ble.
It was not EPA's intent 10 prevent that
type of analysis, and the finarregulatiDn
lias been clarified by. combining the two
paragraphs .on point-and nonp~int
source controls with the word'~'and~'.in
~ 131.10(h) > ...
Other'comments ori nonpoiIit sourc.es
. focused on the use.of'the termipology
"cost effective and rea.sonable'best
management practices;" EPA t.j.8ed the
term "cost effective and reasoftable best
management practices" to cover the
development of nonpoint sou~e con'rols
with Section 205(j)funding. We believe
generaHy that-m;ulpoint source:controls
developed 'as part of a State's water
quality management plan are c'ost
effeotive and reasonable. If a d:esignated
use can be attained throughslich BMPa;
it would be inctmsistent"to allow a
change 'hI the use. Some comm~nt8 als.o
"expressed concern that the Age_ney Was
forcing a mandatory regulatory.progrpm
for nonpoint sourc,e controls thtough, the
Water QuaIityStandards Regul~tion,..
The Agency does not believe that the
wording will impose any new'
requirements fDr the development of'.
,regulatory programs for nonpoitlt sOUlce
controls; rather..the regulation ~imp~y

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Federal Regislar I Vol. 48, No. 217 I 'IVesday, November 8, 1983 / Rules
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in Stat~ standards are socbroad that
they!lo nDtadequatdl:y describe to the
public the actual use :to .be protected. .
The final rule provides tht a State may.
hecause of physical. chemical.
biological. and economic factors, wish to
adopt sub-categories.of a ~use and set
criteria appropriate to protect a
particular use sub-category. The
alteration of the langdage from the
proposal to the final ~\J!e specifically
follows suggestions that uses other than
aquatic life protection should be
covered, and that factors other than
economics should be considered. in
designating particular: sub..categories of
uses.
Many of the commebts on setting sub-
categories of uses levels -of aquatic
protection. and seasonal uses were
similar, focusing prim4rilyon the
availability of guidance and the
adequacy of in(ormati(>n on how to'
establish levels of protection or
seasonal uses. Guidance is available in
the' Woter Quality StdPdords Handbook
on what considerations are involved in
determining levels of protection.and
seasonal uses. to .desig~ating appropriate
uses for a weter body. !rheavailebility
of information will vary depending on
the site involved. EPA lQtends to .
continually improve th~ scientific and-
technical basis.of the gUidance and to
revise such guidance frtlm time to time.
Moreover, EPA will nol aPllrove
standards unless tbey are based on
sound scientific and technical analysis.
Establishing 8ub-categdries of uses and
seasonal uses are optional
consideratiPDs on the p\art of the State.
Several commenters .uggested that
EPA establish a .minimum level.of
protection. EPA beHeves it provides the
basic scientific inforinaiion on various
levels of protection witl) tbe water
quality criteria recomm~ndation8 under
Section 304(a) of the Act However. for
EPA to mandate certain levels of
aquafic life protection ~ithin a use
would override the pri",ary authority of
the State to adopt use classifications,
and supporting criteria througb public
hearings. EPA does not ~elieve.a8 'being
valid the concern expre$sed by the
public that when establishing-various
levels of protection that~he most
sensitive species will no~ be protected.
The degree, of protection; may vary ~
depending upon what life stage of the
most sensitive species tIle public wishes
to protect. For example,_ Water quality
criteria necessary to profect spawning of
aquatic life generally:requires more
stringent water,quality ctiteda than
does prQtection .of the sp~cies during
other stages of its lif8 cy*le. If spawning
is not part ,of. a de$ignateo use: for a

specific water body. then less stringent
criteria levels may be establishad and
they will-be adequate to protect the use
fully.
The public also was concerned that
uses or sub-oategories of uses_would not
be based on original habitat conditions.
It has never been the intention of the
. water quality standards program to
bring 'aU waters to a pristine condition
or necessarily to set standards based on
original habitat conditions. In the first
instance. some waters are naturally of
upoor" quality, and in th~ s~cond, man
has changed the environment and there
are instances where an attempt to
correct or control some sources of
pollution either simply canno't be
effected or would cause more
environmental damage to. correct than to
leave in place.
In response to comments that the
provision on seasonal uses was too
loose, we revised the wording to clarify-
that the.criteria may not be adjusted in a
way that precludes 8- more protective
use in another seasoD'.
A basic policy of the standards
program throughout its history has been
that the designation of a water body for
the purposes of waste transport or
waste assimilation. is unacceptable. At
the public's suggestion,. an eilplicit
statement oUhis policyhas been added
to ~ 131.10(a). The objective is to. .
prevent W8 ter bodies from being used as
open sewers. Thus. this "no waste
transport" policy does not mean that
wastes cannot be conveyed by barge:()l
boat; such activity.is encompassed by
the navigation use designation.

Use i!tta/nab/lity i!nalys/s

Because, of the.wide range of
. comments on the use attainability
analysis. EPA revised the regulation to
better define when such an analysis is
appropriate. The changes were
described in the Preamble.
EPA also rewo'rded the proposed
co.ncept of the use attainabiljty analysis
to include. where appropriate. an
analysis of the economic impacts of
attaining a use consistent with or more
stringent than the Section 101(a)(2) g~als
of the Act. EPA agrees with the
comments that ~ttainabiJity and
affordability are integral components of
the saml;t analyses. This is consistent
with the previou~ r~gulation. which
provided that. in,d.etermtning
attainability. States were to consider
economic factors (~ 35.1550(c)(1)).
In the proposed Rule. EPA
recommended conducting a benefit-cost
asaessment in determining .whether the
bl..nefits of attaining-s use/bear a
l'easpnable -relationship.-to the costs.
That concept has heen removed from

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