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federal Register / Vol. 48'- No. 217/ Tuesday, November 6, 1963 / Rules and Regulalion~ ,.... CO l'"j CD add pollutants to lhe water, Moreover, we believe the deleted sentence was. intended merely ~8,a r,cstatement of the basic po !.icy: ,Since the rewritten provision, with Hill addition of a phrase on water quality described in the next sentence,;stands ~lone as expressing the basic thrust and intent of tbe antidegradation pnlicy, we deleted the confusing phrases: Secondt in_ ~.131.12(a)(1) a plirase was added requiring tbat the level of water quality necessary to protfict an existing use be maintained and proteoted. The previous policy required only,that an existing use be maintsined. In ~ 131.12(a)(2) a phrase was added that "In allowing such degradation or 10>\,er water. quality, the State shail assure water quality adequate to protedt existing uses fuily", This means that the fuil use must continue to exist even if some change in water quality may.be permitted, Third, ' in the first sentence of ~ 131,12(a)(2) the wording was changed {rom ". . . significant economic or social development. . ."ho ". . . important economic or social~de.velopment. . . ." In the context of tlie antidegradation P9licy the word "irttportant" strengthens the intent of prote.;tlng higher quality waters. Althongh c.,mmon usage of the words may imply otherwise, the correct ' definitions of the two terms indicate that the greater degree bf environmental protection is efforded by the word "important" ' Fourth, ~ 131,12(~)(3)deeling with the designation of-outstanding National resource weters (O.NRW) was chenged to provide a limited exception to the abao'lute "no degra~ation" requlrement. EPA was concerne4 that waters which properly could hav~ beeo desigOated as ONRW were not baing so designated because of the 'Oat 60 degradation provision. and therefor~ were not being given special protedtion. The n'O , degradation provision Was sometimes , interpreted as prohtbitiI:18 any activity (including temporary or..short-term) from being conducted, States may allow some limited activities which result in temporary and sho,:.-term changes In water quality. Such:activities are considered to be consisfent with the intent and purpose Of an ONRW. Therefore, EPA hesrewritten tlie provision to read ",:. . that water quality shell bemaibtained end protected," end removed the phrase "No degradation sheU be ellowed, , . ." In its entirety, the;antidegradation poHcy represents 8 threeptiered ~pproach to maintaining a~d pfQtecting vcuious levels of water quality and uses. At its base (Sectionp1,12(e)(1)), all existing uses and th~ leveLof water ..;i.~ J quality necessarl' to protect those uses must be maintained and protected, This p~ovision establishes the absolute, floor of water quality in aU waters of-the United States. The second level (Se,ction 131,12(a)(2)) provil;les protection of actual water quality in areas where the quality of the waters exceed levels necessary to support propagation of fish, sheUfish, and wildlife end recreation in and' on, the water ("fishable/ ' swimmable"). There are provisions contained in this subsection to aHow some limited water quality degradation after extensive ,public involvement, as long as the water quality remains edequete to be "fishable/swimmeble." Finally ~ 131.23(a)(3) provides speciel protection of waters for which the orqinary use classifications and water quality criteria do not suffice, denoted "outstanding National resource water." Ordinarily most people view this subsection as protecting and maintaining the highest quality waters of the United States: thet is cleerly,the thrust of the provision. It does, however. also offer special protection for waters Qf "ecological significance." These are water bodies which are important, unique, or sensitive ecologically, but whose water quality as measured by the treditional perameters (dissolved , oxygen, pH, etc.) may not be particulerly high or whose character cannot be adequately described by these parameters. General Policies Exc~pt for a general statement that Stetes may adopt policies effecting the application and implementation of standards arid tht)t such policies are subject to EPA review and approval, aU other elements of proposed Section P1,13 have been deleted, including the detailed statements on tI)ixing zones, low'flow exemptions. and variances. Specific subsections on mixing zones, low flow exemptions and variances were deleted because. as the public comments suggested, they were not. regulatory in nature and therefore were more appropriately eddressed in guidance. More detailed information on these subjects is included es guidance in the Water Quality Standards Handbook. Many objected to the temporal'Y variance policy because it appeared to be outside the normal ,water quality standards setting process and because the test for,.granting a variance was different from that applied to changing a designated use. While a variance does no.t change,a standard per se, ther~ was concern that such a policy.would stimulate "pollution shopping" or would unfairly penalize firms that had managed thei~ operaHOI'l8 to mai"r)tain.a,-{; pl'ofitwhile installing pollution contl'ol '" '. equipment, to the ad:vantage df:those that hednot; ,.', ,.' ." EPA has approved State'edopted' variances in .the past ang will t::6ritinue to do so if: each individual ,variance is included as partofthe "(ater quality standerd, subject to the same public review as other changes In 'water. qualitY,: standards end if each individuel ' variance is granted based. on a { demonstratio.n that meeting the standar(f:: would cause substantial and widespread economic an:d social iinpact.':f . the s.ame test as if the State were 1 changing a use based on 'substantial, and,;:' widespread social arid eQonomic impact~r EP A will review for approvellndlvidual ;: variances, not. just an. over-all State variance policy. A State may wish tq include a variance 8S part of a water :-i-, quality stenderd rather than change the 1 , stendard beceuse the Stale believes thai" the .standard ultimately clm be a.uain~d. :1: By mein telning the standard rather then' chenging it, the Ste te wilfessure (urther, progress is made in impiQVing wa.ter quality and ettaining the standard; With' the variance provision, NPDES :permits may be written.such that,reasonable . progress .is made toward ~ttaining the stendards withoot violatihg Section 402(a)(1) of the Act whichsletes tb.at NPPES permits must meelthe applicable wate,r quelity standerd.. State Review Section 131,2O(e) was changed from the proposal in several re$pects. ,These changes were made in rel1ponse to the. public's concern that thebmguege in the pJ;'oPQsed regulat,ion eitnet removed or . ,~H:uted the Act's,requitem:~nt to review all standards every three years and th,at EPA's proposed regulatory tenguagedid not provide edequate recognition of the goals of the Act. 'First, the language on the 3-year review'requiredient was changed to read exectly as the Act. It now reads that "the Slate, shall, from time to time, but at least once every three years, hold public ha~.illgs for the purpose of reviewing applicable water quality standards and, as appropriate. modifying and adopting standards," Second. a mandatory reView and upgrading requirement ha,s beenedded, On segme~ts with: water q~ality ;J standards that do not include an of the uses specified In Section 101(e](2) of the Act, States must reexamine. the basis of )ha t decision .every three y~ar8 to determine :whether any new informetion, technology, etc. has become availeble that would werrant adding the p,rotection and Propagation :1 '~ '<<>.';';".: &(":'.';',,1.';"<" '""',