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<br />Fede alRegisler I Vol. 48. NO. 217 I Tuesda '. November 8.1983 I Rules andRegulti~n~
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<br />takes into Reaouqt those programs
<br />which.exist in ascertaining the minimum
<br />requirements. States are still free to
<br />review and revise ,their non.point source
<br />requirements in ,accordance with 208.
<br />303(e).and 205(j).
<br />One commenter recommended that
<br />the Agency inclu4e in the section on use
<br />attainability a discussion of the
<br />relationship betw~en best 'management
<br />pracUces and w8~er quality standards
<br />similar to that in q.S. BFA, State and
<br />Areawide Memorandum, Number 32.
<br />Nov. 14. 1978. EPA has included that
<br />memorandum in tQe chapter on' "Water
<br />'Body Survey and Ass~Bsments for
<br />Conducting Use A\tainability Analyses"
<br />.in the Water QualityStandards
<br />Handbook.. .
<br />
<br />Changes in Uses
<br />
<br />EPA re.celved substantial ,comment on
<br />~ 131.10(h)(1J-(6) a;nd (1)(1)-(6) of the
<br />proposed regulatidn, which deal with
<br />the circumstances ~mder which changes
<br />mey (or may not) be made in designated
<br />uses. These sections have been revised:
<br />the changes are diScussed in Section A
<br />of the Prelimhle. .
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<br />Criteria
<br />
<br />We accepted the'comment that the
<br />added test of criteria being "compatible
<br />with" protecting a Qesignated use might
<br />raise the p08sibmt~ of unnecessary,
<br />dehate over what i~ compatible with
<br />protecting a designi;lted ,use. The
<br />sentence was revised to read "States
<br />must adopt water qpality criteria' that
<br />protect _8 designllted use." In response to
<br />several comments, ~PAalso added
<br />language to clarify tj,at criteria musl be
<br />based on sound sci~ntific rational and
<br />must contain sufficient parameters or
<br />'constituents to prot~ct the desig~ated
<br />use. Some commentprs apparently
<br />beliave that the Ag",ncy.continues to
<br />hsve a policy of "pri>aumptive
<br />applicability" applied to the Federal
<br />water quality criteria or thatlhe
<br />proposed RegulatiOl:l recreated that
<br />policy. That policy existed from July 10.
<br />1978 to Nov. 28, 1980. when it was
<br />rescinded. No such policy now exists
<br />nor is Intended in Ihil final rule. While
<br />States are free to dr4w on EPA's304(a)
<br />criteria 8S.9Upport-for State criteria. they
<br />are equally free to u~e any other criteria
<br />for which they have aound scientific
<br />support.
<br />Comments received from the public
<br />clearly indicated conbern that the
<br />proposed rule did not appear to provide
<br />sufficient emphasis 0/1 the control of
<br />toxic poIlutants. Thep'roposed
<br />paragraph on toxic poIlutants was
<br />therefore strengthena:d to provide that
<br />States "must" review, water quality data
<br />and Information on dischargers to .
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<br />identify where toxic pollutants may be
<br />adversely affecting the attainment of
<br />designated water uses and "must" adopt
<br />criteria to ensure the prptection of the
<br />designated, uses. Furthermore. where
<br />States adopt narrative statements for
<br />toxic poIlutants, EPA is requiring that
<br />States submit along with their standards
<br />submission information identifying ,the
<br />method by which the State intends to
<br />regulate point source discharges of toxic
<br />pollutants based. on the narrative
<br />ptovisions. For example, States may'
<br />require biological ,monitoring of
<br />dischargers' effluents such that a
<br />particular tolerance or LCso value is n'ot
<br />exceeded. EPA made these changes
<br />because it agrees that more emphasiS
<br />needs to be placed on the control of
<br />toxic"dischargers. Information on
<br />. implementing methods will ensure that
<br />EPA andState have a common
<br />understanding of what the narraUve
<br />criteria really mean, and w.ill facilitate
<br />permit writing on water quality limited
<br />streams.
<br />The regulati9n provides several ways
<br />of establishing water quality criteria,
<br />including criteria development based on
<br />site-speciflc characteristics, EPA's field
<br />tests of the proposed guidance '.
<br />supporting the concept of developing
<br />site-specific criteria, the comments
<br />received during the public revi~w, and
<br />the review conducted by the Agency's
<br />ScienceAdvisofy Board identWed
<br />difficulties with the proposed guidance.
<br />The final guidance has been carefully
<br />revised to reflect the concerns, and
<br />comments received to ensure that the
<br />meohanisms used to develop site~
<br />specific criteria ate scientifically
<br />credible. Research will also c'ontinue oil
<br />improved'tebhniques, and 8S validated
<br />Ihey will be made available to the .
<br />States. .
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<br />General Policies
<br />
<br />While many conunenters supported
<br />including the General Policies provision
<br />(Section 131.13) in the framework of the
<br />Regulation. others recommended
<br />deleting the General Policies section
<br />. from the Regulation and including itln
<br />guidance documents. Since much of the
<br />language in that proposed part was in
<br />fact guidance, EPA decided to delete
<br />paragraphs (b)-(d). Only the first part of
<br />the. section which recognize6 that States
<br />do adopt policies that impact on the
<br />implementation and application of water
<br />quality standards and thetsuch policies,
<br />if adopted. are subject to EPA review
<br />and approval was retained.
<br />EPA believes that it is important for
<br />the public to understand that while the
<br />adoption of these policies is optional, if
<br />adopted they are subject to EPA revieW
<br />and approval. EPA will continue to
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<br />include a 'discussion of ~ixil1$, z~ne's.
<br />low flows. variance' a'nttother general
<br />program policies in a guIdance
<br />document. as has been done since 1975/
<br />Detailed guidance on these optional '"
<br />. policies is'included in tHe Water QualilJi
<br />Standards Handbook. ..
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<br />Resource' CapabJ1iti'es
<br />
<br />The issue of resources,:was of conce~,;
<br />10 many. While some States over the ;..
<br />years have collected the.~cienlific and,;'
<br />technical information to ~e,t approprIate:,>.
<br />water quality standards"otherS hllve .
<br />done significantly less dS:ta.co!lecllon.
<br />EPArecogni~es thai use. attainability .
<br />analyses, and site 'specifig critetia
<br />studies,may :l'~quire SODl~ States,to. " ,^
<br />program more resoUrces .lor setting, tli,~dr,,~,;
<br />water quality standarda (han in the pest,;,
<br />However. the USe attaina:piJity an~lY$e8)'::
<br />apply only to waterq'lality limited.. .
<br />segments-segments wheresllindards
<br />. will not be attained even'~ilh .' .
<br />implementation of techl!ql,)gyrl1ased .
<br />controls of the Acl, wherlithe..8lli!e' .
<br />wishes to justify uses lesli..lhen
<br />"fishablefswinunable", M'oteover,
<br />nothing in the guidance oth, the .
<br />requirement for conducti~ use . " .
<br />attainabilitYlinalyses suggests thaI
<br />every analysis be simllarln'scQpe:and
<br />detail or that theY must bli.intrinsicaUy
<br />expensive and dlfficult.IlI>A expeolli
<br />quite. the opposite 10 be tnie; the
<br />analyses only nead to be .$umclenlly
<br />detailed to support Ihespecific
<br />standards decision in question.
<br />Consequently, when attempllng,to
<br />establiah appropriate aquatic protecllon
<br />uses it will, for example. barelalively.
<br />simple 10 demonstrate to J!PA that'
<br />certein equaticlife forms will be unable
<br />. to exist in an areabecauaeofphysical
<br />facldrs regardless ofthe le~el ofwaler
<br />quaJity attained,j,e., no level of'waler
<br />quality willlnduce fish to $pawn'ln
<br />areas where the bottom stra ta are not
<br />what the particular specie~: requires for
<br />. spawning. In other instances, given the
<br />environmental.pr,oblems,'DUmbe't of
<br />people involved, the cost of pollution
<br />control to municipalities aItd ind'lslfles,
<br />and the political aspects of the situ all on.
<br />the. use littainabilily analyses may be
<br />quite costly. Because r~80utces are and
<br />will likely conlinueto be a problem. .
<br />EPA recommends that States set
<br />priorities for conducting these analyaes.
<br />The Agency also believes Ihpt it is
<br />appropriate for 'States to enlisl the
<br />cooperation and resources ,Qf
<br />dischargers in conducllng tlj.ese
<br />analyses. EPA continues to .believe thet
<br />there is considerebla expertise and dala
<br />available from.verious State' agencies
<br />that can be tapped 10 asslst'in
<br />establishing attainable standards, This
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