3745-1-17 Southwest Ohio tributaries drainage basin.

 

 

 

Rule Summary and Fiscal Analysis (Part A)

 

Ohio Environmental Protection Agency

Agency Name

 

Division of Surface Water (DSW)                     Bob Heitzman

Division                                                                  Contact

 

50 West Town Street, Suite 700 PO Box 1049 Columbus OH 43216-1049

614-644-2001        614-644-2745

Agency Mailing Address (Plus Zip)                                       Phone                     Fax

3745-1-17

Rule Number

NO CHANGE

TYPE of rule filing

Rule Title/Tag Line              Southwest Ohio tributaries drainage basin.

RULE SUMMARY

1.  Is the rule being filed consistent with the requirements of the RC 119.032 review? Yes

2.  Are you proposing this rule as a result of recent legislation? No

3.  Statute prescribing the procedure in accordance with the agency is required to adopt the rule: 119.03

4.  Statute(s) authorizing agency to adopt the rule: 6111.041

5.  Statute(s) the rule, as filed, amplifies or implements: 6111.041

6.  State the reason(s) for proposing (i.e., why are you filing,) this rule:

R.C. 119.032 five-year rule review.

7.  If the rule is an AMENDMENT, then summarize the changes and the content of the proposed rule; If the rule type is RESCISSION, NEW or NO CHANGE, then summarize the content of the rule:

This rule identifies beneficial use designations for water bodies in the Southwest Ohio tributaries drainage basin. Specific water quality criteria are associated with each use designation and are the specific target conditions to be maintained in the

Page 2                                                                                         Rule Number: 3745-1-17

water bodies. Together the use designations and criteria may be the basis for permit limits in wastewater discharge permits.

8.  If the rule incorporates a text or other material by reference and the agency claims the incorporation by reference is exempt from compliance with sections

121.71 to 121.74 of the Revised Code because the text or other material is generally available to persons who reasonably can be expected to be affected by the rule, provide an explanation of how the text or other material is generally available to those persons:

This rule contains references to the Ohio Administrative Code (OAC). While copies of these rules are generally available to the public through libraries and

on-line sources, including the Ohio EPA website, ORC section 121.76(A) exempts such references from the provisions of ORC sections 121.71 through 121.75.

9.  If the rule incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material electronically, provide an explanation of why filing the text or other material electronically was infeasible:

Not Applicable.

10.  If the rule is being rescinded and incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material, provide an explanation of why filing the text or other material was infeasible:

Not Applicable.

11.  If revising or refiling this rule, identify changes made from the previously filed version of this rule; if none, please state so:

Not Applicable.

12. 119.032 Rule Review Date: 7/23/2007 and 07/23/2012

(If the rule is not exempt and you answered NO to question No. 1, provide the scheduled review date. If you answered YES to No. 1, the review date for this rule is the filing date.)

NOTE: If the rule is not exempt at the time of final filing, two dates are required: the current review date plus a date not to exceed 5 years from the effective date for Amended rules or a date not to exceed 5 years from the review date for No Change rules.

Page 3                                                                                         Rule Number: 3745-1-17

FISCAL ANALYSIS

13.  Estimate the total amount by which this proposed rule would increase / decrease either revenues / expenditures for the agency during the current biennium (in dollars): Explain the net impact of the proposed changes to the budget of your agency/department.

This will have no impact on revenues or expenditures.

$0

Filing this rule as no change will neither increase nor decrease Ohio EPA revenues or expenditures during the current biennium.

14.  Identify the appropriation (by line item etc.) that authorizes each expenditure necessitated by the proposed rule:

Not Applicable.

15.  Provide a summary of the estimated cost of compliance with the rule to all directly affected persons. When appropriate, please include the source for your information/estimated costs, e.g. industry, CFR, internal/agency:

Filing this rule as no change will have no impact on the cost of compliance. Costs of compliance with the currently effective rule vary among wastewater dischargers, based upon factors such as the type and quantity of pollutants discharged, the amount of dilution water available to mix with the discharge, and the amounts of pollutants in the dilution water. Rule 3745-33-07 of the Administrative Code allows the director to grant temporary variances from compliance with water quality criteria if attainment of the criteria is not feasible.

16.  Does this rule have a fiscal effect on school districts, counties, townships, or municipal corporations? Yes

You must complete Part B of the Rule Summary and Fiscal Analysis in order to comply with Am. Sub. S.B. 33 of the 120th General Assembly.

17.  Does this rule deal with environmental protection or contain a component dealing with environmental protection as defined in R. C. 121.39? Yes

You must complete the Environmental rule Adoption/Amendment Form in order to comply with Am. Sub. 106 of the 121st General Assembly.

                                                                                                                                             

Page B-1                                                                                     Rule Number: 3745-1-17

Rule Summary and Fiscal Analysis (Part B)

1.  Does the Proposed rule have a fiscal effect on any of the following?

(a)  School Districts

(b)    Counties                                 (c) Townships           (d) Municipal

Corporations

Yes                              Yes                              Yes                              Yes

2.  Please provide an estimate in dollars of the cost of compliance with the proposed rule for school districts, counties, townships, or municipal corporations. If you are unable to provide an estimate in dollars, please provide a written explanation of why it is not possible to provide such an estimate.

Filing this rule as no change will have no impact on the cost of compliance. Costs of compliance with the currently effective rule vary among wastewater dischargers, based upon factors such as the type and quantity of pollutants discharged, the amount of dilution water available to mix with the discharge, and the amounts of pollutants in the dilution water. Rule 3745-33-07 of the Administrative Code allows the director to grant temporary variances from compliance with water quality criteria if attainment of the criteria is not feasible.

3.  If the proposed rule is the result of a federal requirement, does the proposed rule exceed the scope and intent of the federal requirement? No

4.  If the proposed rule exceeds the minimum necessary federal requirement, please provide an estimate of, and justification for, the excess costs that exceed the cost of the federal requirement. In particular, please provide an estimate of the excess costs that exceed the cost of the federal requirement for (a) school districts, (b) counties, (c) townships, and (d) municipal corporations.

Not Applicable.

5.  Please provide a comprehensive cost estimate for the proposed rule that includes the procedure and method used for calculating the cost of compliance. This comprehensive cost estimate should identify all of the major cost categories including, but not limited to, (a) personnel costs, (b) new equipment or other capital costs, (c) operating costs, and (d) any indirect central service costs.

See the response to question # 2 above.

Page B-2                                                                                     Rule Number: 3745-1-17

(a)  Personnel Costs

See the response to question # 2 above.

(b)  New Equipment or Other Capital Costs

See the response to question # 2 above.

(c)  Operating Costs

See the response to question # 2 above.

(d)  Any Indirect Central Service Costs

See the response to question # 2 above.

(e)  Other Costs

See the response to question # 2 above.

6.  Please provide a written explanation of the agency's and the local government's ability to pay for the new requirements imposed by the proposed rule.

The agency's and local government's ability to pay is already established as this is an existing rule.

7.  Please provide a statement on the proposed rule's impact on economic development.

As this is an existing rule, filing it as no change will have no impact on economic development.

                                                                                                                                             

Page E-1                                                                                     Rule Number: 3745-1-17

Environmental Rule Adoption/Amendment Form

Pursuant to Am. Sub. H.B. 106 of the 121st General Assembly, prior to adopting a rule or an amendment to a rule dealing with environmental protection, or containing a component dealing with environmental protection, a state agency shall:

(1)    Consult with organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment.

(2)   Consider documentation relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or rule amendment.

(3)  Specifically identify whether the proposed rule or rule amendment is being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program, whether the proposed rule or rule amendment is more stringent than its federal counterpart, and, if the proposed rule or rule amendment is more stringent, the rationale for not incorporating its federal counterpart.

(4)   Include with the proposed rule or rule amendment and rule summary and fiscal analysis required to be filed with the Joint Committee on Agency Rule Review information relevant to the previously listed requirements.

(A)  Were organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment consulted ? No

Please list each contact.

Pursuant to Section 121.39 of the Revised Code interested parties need only be consulted if a rule is being adopted, amended, or rescinded. This rule is being filed as "no change" pursuant to a 119.032 rule review and therefore no interested party consultation is necessary.

(B)  Was documentation that is relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or amendment considered ? Yes

Please list the information provided and attach a copy of each piece of documentation to this form. (A SUMMARY OR INDEX MAY BE ATTACHED IN LIEU OF THE ACTUAL DOCUMENTATION.)

40 CFR Part 131. USEPA Water Quality Standards Regulation.

Page E-2                                                                                     Rule Number: 3745-1-17

(C)  Is the proposed rule or rule amendment being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program ? No

Is the proposed rule or rule amendment more stringent than its federal counterpart ? No

(D)  If this is a rule amendment that is being adopted under a state statute that establishes standards with which the amendment is to comply, is the proposed rule amendment more stringent than the rule that it is proposing to amend? No

Not Applicable

                                                                                                                                             

Pt. 131

PART 131-WATER QUALITY STANDARDS

Subpart A-General Provisions

Sec.

131.1 Scope.

131.2       Purpose.

131.3       Definitions.

131.4       State authority.

131.5       EPA authority.

131.6 Minimum   requirements   for   water quality standards submission.

131.7       Dispute resolution mechanism.

131.8 Requirements for Indian Tribes to ad- minister a water quality standards pro- gram.

Subpart B-Establishment of Water Quality Standards

131.10       Designation of uses.

131.11       Criteria.

131.12       Antidegradation policy.

131.13       General policies.

Subpart C-Procedures for Review and Revision of Water Quality Standards

131.20       State  review  and  revision  of  water quality standards.

131.21       EPA  review  and  approval  of  water quality standards.

131.22       EPA  promulgation  of  water  quality standards.

Subpart D-Federally Promulgated Water Quality Standards

131.31       Arizona.

131.32       Pennsylvania.

131.33       Idaho.

131.34       Kansas.

131.35       Colville  Confederated  Tribes  Indian Reservation.

131.36       Toxics criteria for those states not complying with Clean Water Act section 303(c)(2)(B).

131.37       California.

131.38       Establishment of numeric criteria for priority toxic pollutants for the State of California.

131.40       Puerto Rico.

131.41       Bacteriological criteria for those states not complying with Clean Water Act section 303(i)(1)(A).

AUTHORITY: 33 U.S.C. 1251 et seq.

SOURCE:  48  FR  51405,  Nov.  8,  1983,  unless

otherwise noted.

Subpart A-General Provisions

§ 131.1   Scope.

This part describes the requirements and procedures for developing, review-

40 CFR Ch. I (7-1-06 Edition)

ing, revising, and approving water quality standards by the States as au- thorized by section 303(c) of the Clean Water Act. Additional specific proce- dures for developing, reviewing, revis- ing, and approving water quality stand- ards for Great Lakes States or Great Lakes Tribes (as defined in 40 CFR 132.2) to conform to section 118 of the Clean Water Act and 40 CFR part 132, are provided in 40 CFR part 132.

[60 FR 15386, Mar. 23, 1995]

§ 131.2   Purpose.

A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria necessary to protect the uses. States adopt water quality standards to protect public health or welfare, enhance the quality of water and serve  the  purposes  of  the Clean Water Act (the Act). ''Serve the pur- poses of the Act'' (as defined in sec- tions 101(a)(2) and 303(c) of the Act) means that water quality standards should, wherever attainable, provide water quality for the protection and propagation of fish, shellfish and wild- life and for recreation in and on the water and take into consideration their use and value of public water supplies, propagation of fish, shellfish, and wild- life, recreation in and on the  water, and agricultural, industrial, and other purposes including navigation.

Such standards serve the dual purposes of establishing the water quality goals for a specific water body and serve as the regulatory basis for the establish- ment of water-quality-based treatment controls and strategies beyond the technology-based levels of treatment required by sections 301(b) and 306 of the Act.

§ 131.3   Definitions.

(a)   The Act means the Clean Water Act  (Pub.  L.  92-500,  as  amended  (33

U.S.C. 1251 et seq.)).

(b)    Criteria are elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a par- ticular  use.  When  criteria  are  met,

400

Environmental Protection Agency                                                                           § 131.5

water  quality  will  generally  protect the designated use.

(c)  Section 304(a) criteria are developed by EPA under authority of section 304(a) of the Act based on the latest scientific information on the relation- ship that the effect of a constituent concentration has on particular aquat- ic species and/or human health. This information is issued periodically to the States as guidance for use in devel- oping criteria.

(d)   Toxic pollutants are those pollut- ants listed by the Administrator under section 307(a) of the Act.

(e)  Existing uses are those uses actu- ally attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards.

(f)    Designated uses are those uses specified in water quality standards for each water body or segment whether or not they are being attained.

(g)    Use attainability analysis is a structured scientific assessment of the factors affecting the  attainment of  the use which may include physical, chem- ical, biological, and  economic  factors as described in § 131.10(g).

(h)     Water quality limited segment means any segment where it is known that water quality does not meet appli- cable water quality standards, and/or is not expected to meet applicable water quality standards, even after the appli- cation of the technology-bases effluent limitations required by sections 301(b) and 306 of the Act.

(i) Water quality standards are provi- sions of State or Federal law which consist of a designated use or uses for the waters of the United States and water quality criteria for such waters based upon such uses. Water quality standards are to protect the public health or welfare, enhance  the quality of water and serve the purposes of the Act.

(j) States include: The 50 States, the District of Columbia, Guam, the Com- monwealth of Puerto Rico, Virgin Is- lands, American Samoa, the Trust Ter- ritory of the Pacific Islands, the Com- monwealth of the Northern Mariana Is- lands, and Indian Tribes that EPA de- termines to be eligible for purposes of water quality standards program.

(k) Federal Indian Reservation, Indian Reservation, or Reservation means all land within the limits of any  Indian reservation under the jurisdiction of the United States Government, not- withstanding the issuance of any pat- ent, and including rights-of-way run- ning through the reservation.''

(l) Indian Tribe or Tribe means any In- dian Tribe, band, group, or community recognized by the Secretary of the In- terior and exercising governmental au- thority over a Federal Indian reserva- tion.

[48 FR 51405, Nov. 8, 1983, as amended at 56

FR 64893, Dec. 12, 1991; 59 FR 64344, Dec. 14,

1994]

§ 131.4   State authority.

(a)  States (as defined in § 131.3) are re- sponsible for reviewing,  establishing, and revising water quality  standards. As recognized by section 510 of the Clean Water Act, States may develop water quality standards more stringent than required by this regulation. Con- sistent with section 101(g) and 518(a) of the Clean Water Act, water quality standards shall not be construed to su- persede or  abrogate rights  to quan- tities of water.

(b)   States (as defined in § 131.3) may issue certifications pursuant to the re- quirements of Clean Water Act section

401. Revisions adopted by States shall be applicable for use in issuing State certifications consistent with the pro- visions of § 131.21(c).

(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 pur- poses of certifications conducted under Clean Water Act section 401.

[56 FR 64893, Dec. 12, 1991, as amended at 59

FR 64344, Dec. 14, 1994]

§ 131.5   EPA authority.

(a)   Under section 303(c) of the Act, EPA is to review and to approve or dis- approve State-adopted water quality standards. The review involves a deter- mination of:

(1)   Whether the State has adopted water uses which are consistent with the requirements of the Clean Water Act;

§ 131.6

(2)   Whether the State has adopted criteria that protect the designated water uses;

(3) Whether the State has followed its legal procedures for revising or adopt- ing standards;

(4)    Whether the State standards which do not include the uses specified in section 101(a)(2) of the Act are based upon appropriate technical and sci- entific data and analyses, and

(5)    Whether the State submission meets  the  requirements  included  in

§ 131.6 of this part and, for Great Lakes States or Great Lakes Tribes (as de- fined in 40 CFR 132.2) to conform to section 118 of the Act, the require- ments of 40 CFR part 132.

(b)     If EPA determines that the State's or Tribe's water quality stand- ards are consistent with the factors listed in paragraphs (a)(1) through (a)(5) of this section, EPA approves the standards. EPA must disapprove the State's or Tribe's water quality stand- ards and promulgate Federal standards under section 303(c)(4), and for Great Lakes States or Great Lakes Tribes under section 118(c)(2)(C) of the Act, if State or Tribal adopted standards are not consistent with the factors listed in paragraphs (a)(1) through (a)(5) of this section. EPA may also promulgate a new or revised standard when nec- essary to meet the requirements of the Act.

(c)  Section 401 of the Clean Water Act authorizes EPA to issue certifications pursuant to the requirements of sec- tion 401 in any case where a State or interstate agency has no authority for issuing such certifications.

[48 FR 51405, Nov. 8, 1983, as amended at 56

FR 64894, Dec. 12, 1991; 60 FR 15387, Mar. 23,

1995]

§ 131.6 Minimum requirements for water quality standards submis- sion.

The following elements must be in- cluded in each State's water quality standards submitted to EPA for review:

(a)   Use designations consistent with the provisions of sections 101(a)(2) and 303(c)(2) of the Act.

(b)   Methods used and analyses con- ducted to support water quality stand- ards revisions.

40 CFR Ch. I (7-1-06 Edition)

(c)   Water quality criteria  sufficient to protect the designated uses.

(d)   An antidegradation policy con- sistent with § 131.12.

(e)  Certification by the State Attor- ney General or other appropriate legal authority within the State that the water quality standards were duly adopted pursuant to State law.

(f)   General information which will aid the Agency in determining the ade- quacy of the scientific basis of the standards which do not include the uses specified in section 101(a)(2) of the Act as well as information on general policies applicable to State standards which may affect their application and implementation.

§ 131.7   Dispute resolution mechanism.

(a)   Where disputes between States and Indian Tribes arise as a result of differing water quality standards on common bodies of water, the lead EPA Regional Administrator, as determined based upon OMB circular A-105, shall be responsible for acting in accordance with the provisions of this section.

(b)  The Regional Administrator shall attempt to resolve such disputes where:

(1)   The difference in water quality standards results in unreasonable con- sequences;

(2)  The dispute is between a State (as defined in § 131.3(j) but exclusive of all Indian Tribes) and a Tribe which EPA has determined is eligible to the same extent as a State for purposes of water quality standards;

(3)  A reasonable effort to resolve the dispute without EPA involvement has been made;

(4)  The requested relief is consistent with the provisions of the Clean Water Act and other relevant law;

(5)   The differing State and Tribal water quality standards have been adopted pursuant to State and Tribal law and approved by EPA; and

(6)  A valid written request has been submitted by either the Tribe or the State.

(c)  Either a State or a Tribe may re- quest EPA to resolve any  dispute which satisfies the criteria of para- graph (b) of this section. Written re- quests for EPA involvement should be

Environmental Protection Agency                                                                           § 131.7

submitted to the lead Regional Admin- istrator and must include:

(1)  A concise statement of the unrea- sonable consequences that are alleged to have arisen because of differing water quality standards;

(2)   A concise description of the ac- tions which have been taken to resolve the dispute without EPA involvement;

(3)  A concise indication of the water quality standards provision which has resulted in the alleged unreasonable consequences;

(4)   Factual data to support the al- leged unreasonable consequences; and

(5)  A statement of the relief sought from the alleged unreasonable con- sequences.

(d)   Where, in the Regional Adminis- trator's judgment, EPA involvement is appropriate based on the factors of paragraph (b) of this section, the Re- gional Administrator shall, within 30 days, notify the parties in writing that he/she is initiating an EPA dispute res- olution action and solicit their written response. The Regional Administrator shall also make reasonable efforts to ensure that other interested individ- uals or groups have notice of this ac- tion. Such efforts shall include but not be limited to the following:

(1)    Written notice to responsible Tribal and State Agencies, and other affected Federal agencies,

(2)  Notice to the specific individual or entity that is alleging that an un- reasonable consequence is resulting from differing standards having been adopted on a common body of water,

(3)  Public notice in local newspapers, radio, and television, as appropriate,

(4)  Publication in trade journal news- letters, and

(5) Other means as appropriate.

(e)   If in accordance with applicable State and Tribal law an Indian Tribe and State have entered into an agree- ment that resolves the dispute or es- tablishes a mechanism for resolving a dispute, EPA shall defer to this agree- ment where it is consistent with the Clean Water Act and where it has been approved by EPA.

(f)   EPA dispute resolution actions shall be consistent with one or a com- bination of the following options:

(1)  Mediation. The Regional Adminis- trator may appoint a mediator to me-

diate the dispute. Mediators shall be EPA employees, employees from other Federal agencies, or other individuals with appropriate qualifications.

(i) Where the State and Tribe agree to participate in the dispute resolution process, mediation with the intent to establish Tribal-State agreements, consistent with Clean Water Act sec- tion 518(d), shall normally be pursued as a first effort.

(ii)  Mediators shall act as neutral facilitators whose function is to en- courage communication and negotia- tion between all parties to the dispute.

(iii) Mediators may establish advi- sory panels, to consist in part of rep- resentatives from the affected parties, to study the problem and recommend an appropriate solution.

(iv) The procedure and schedule for mediation of individual disputes shall be determined by the mediator in con- sultation with the parties.

(v) If formal public hearings are held in connection with the actions taken under this paragraph, Agency require- ments at 40 CFR 25.5 shall be followed.

(2)  Arbitration. Where the parties to the dispute agree to participate in the dispute resolution process, the Re- gional Administrator may appoint an arbitrator or arbitration panel to arbi- trate the dispute. Arbitrators and panel members shall be EPA employ- ees, employees from other Federal agencies, or other individuals with ap- propriate qualifications. The Regional administrator shall select as arbitra- tors and arbitration panel members in- dividuals who are agreeable to all par- ties, are knowledgeable concerning the requirements of the water quality standards program, have a basic under- standing of the political and economic interests of Tribes and States involved, and are expected to fulfill the duties fairly and impartially.

(i)   The arbitrator or arbitration panel shall conduct one or more pri- vate or public meetings with the par- ties and actively solicit information pertaining to the effects of differing water quality permit requirements on upstream and downstream dischargers, comparative risks to public health and the environment, economic impacts, present and historical water uses, the quality of the waters subject to such

§ 131.7

standards, and other factors relevant to the dispute, such as whether pro- posed water quality criteria are more stringent than necessary to support designated uses, more stringent than natural background water quality or whether designated uses are reasonable given natural background water qual- ity.

(ii)  Following consideration of rel- evant factors as defined in paragraph (f)(2)(i) of this section,  the  arbitrator or arbitration panel shall have the au- thority and responsibility to  provide all parties and the Regional Adminis- trator with a written recommendation for resolution of the dispute. Arbitra- tion panel recommendations shall, in general, be reached by majority vote. However, where the parties agree to binding arbitration, or where required by the Regional Administrator, rec- ommendations of such arbitration pan- els may be unanimous decisions. Where binding or non-binding arbitration pan- els cannot reach a unanimous rec- ommendation after a reasonable period of time, the Regional Administrator may direct the panel to issue a non- binding decision by majority vote.

(iii)  The arbitrator or arbitration panel members may consult with EPA's Office of General Counsel on legal issues, but otherwise shall have no ex parte communications pertaining to the dispute. Federal employees who are arbitrators or arbitration panel members shall be neutral and shall not be predisposed for or against the posi- tion of any disputing party based on any Federal Trust  responsibilities which their employers may have with respect to the Tribe. In addition, arbi- trators or arbitration panel members who are  Federal  employees shall  act independently from the normal hier- archy within their agency.

(iv) The parties are not obligated to abide by the arbitrator's or arbitration panel's recommendation unless they voluntarily entered into a binding agreement to do so.

(v) If a party to the dispute believes that the arbitrator or arbitration panel has recommended  an action contrary to or inconsistent with the Clean Water Act, the party may appeal the arbitrator's recommendation to the Regional  Administrator.  The  request

40 CFR Ch. I (7-1-06 Edition)

for appeal must be in writing and must include a description of the statutory basis for altering the arbitrator's rec- ommendation.

(vi) The procedure and schedule for arbitration of individual disputes shall be determined by the arbitrator or ar- bitration panel in consultation with parties.

(vii)  If formal public hearings are held in connection with the actions taken under this paragraph, Agency re- quirements at 40 CFR 25.5 shall be fol- lowed.

(3)   Dispute resolution default proce- dure. Where one or more parties (as de- fined in paragraph (g) of this section) refuse to participate in either the me- diation or arbitration dispute resolu- tion processes, the Regional Adminis- trator may appoint a single official or panel to review available information pertaining to the dispute and to issue a written recommendation for resolving the dispute. Review officials shall be EPA employees, employees from other Federal agencies, or other individuals with appropriate qualifications. Re- view panels shall include appropriate members to be selected by the Re- gional Administrator in consultation with the participating parties. Rec- ommendations of such review officials or panels shall, to the extent possible given the lack of participation by one or more parties, be reached in a man- ner identical to that for arbitration of disputes specified in paragraphs (f)(2)(i) through (f)(2)(vii) of this section.

(g)   Definitions. For the purposes of this section:

(1)     Dispute Resolution Mechanism means the EPA mechanism established pursuant to the requirements of Clean Water Act section 518(e) for resolving unreasonable consequences that arise as a result of differing water quality standards that may be set by States and Indian Tribes located on common bodies of water.

(2)  Parties to a State-Tribal dispute include the State and the Tribe and may, at the discretion of the Regional Administrator, include an NPDES per- mittee, citizen, citizen group, or other affected entity.

[56 FR 64894, Dec. 12, 1991, as amended at 59

FR 64344, Dec. 14, 1994]

Environmental Protection Agency                                                                           § 131.8

§ 131.8 Requirements for Indian Tribes to administer a water quality stand- ards program.

(a)   The Regional Administrator, as determined based on OMB Circular A- 105, may accept and approve a tribal application for purposes of admin- istering a water quality standards pro- gram if the Tribe meets the following criteria:

(1)  The Indian Tribe is recognized by the Secretary of the Interior and meets the definitions in § 131.3 (k) and (l),

(2)  The Indian Tribe has a governing body carrying out substantial govern- mental duties and powers,

(3)  The water quality standards pro- gram to be administered by the Indian Tribe pertains to the management and protection of water resources which are within the borders of the Indian res- ervation and held by the Indian Tribe, within the borders of the Indian res- ervation and held by the United States in trust for Indians, within the borders of the Indian reservation and held by a member of the Indian Tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of the Indian res- ervation, and

(4)  The Indian Tribe is reasonably ex- pected to be capable, in the Regional Administrator's judgment, of carrying out the functions of an effective water quality standards program in a manner consistent with the terms and purposes of the Act and applicable regulations.

(b)  Requests by Indian Tribes for ad- ministration of a water quality stand- ards program should be submitted to the lead EPA Regional Administrator. The application shall include the fol- lowing information:

(1)  A statement that the Tribe is rec- ognized by the Secretary of the Inte- rior.

(2)    A descriptive statement dem- onstrating that the Tribal governing body is currently carrying out substan- tial governmental duties and powers over a defined area. The statement should:

(i)  Describe the form of the Tribal government;

(ii)  Describe the types of govern- mental functions currently performed by the Tribal governing body such as, but not limited to, the exercise of po-

lice powers affecting (or relating to) the health, safety, and welfare of the affected population, taxation, and the exercise of the power of eminent do- main; and

(iii) Identify the source of the Tribal government's authority to carry out the governmental functions currently being performed.

(3)  A descriptive statement of the In- dian Tribe's authority to regulate water quality. The statement should include:

(i) A map or legal description of the area over which the Indian Tribe as- serts authority to regulate surface water quality;

(ii) A statement by the Tribe's legal counsel (or equivalent official) which describes the basis for the Tribes asser- tion of authority and which may in- clude a copy of documents such as Tribal constitutions, by-laws, charters, executive orders, codes, ordinances, and/or resolutions which support the Tribe's assertion of authority; and

(iii) An identification of the surface waters for which the Tribe proposes to establish water quality standards.

(4)  A narrative statement describing the capability of the Indian Tribe to administer an effective water quality standards program. The narrative statement should include:

(i) A description of the Indian Tribe's previous  management   experience which may include  the  administration of programs and services authorized by the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.), the Indian Mineral Develop- ment Act (25 U.S.C. 2101 et seq.), or the Indian Sanitation Facility  Construc- tion Activity Act (42 U.S.C. 2004a);

(ii) A list of existing environmental or public health programs adminis- tered by the Tribal governing body and copies of related Tribal laws, policies, and regulations;

(iii) A description of the entity (or entities) which exercise the executive, legislative, and judicial functions of the Tribal government;

(iv) A description of the existing, or proposed, agency of the Indian Tribe which will assume primary responsi- bility for establishing, reviewing, im- plementing and revising water quality standards;

§ 131.10

(v) A description of the technical and administrative capabilities of the staff to administer and manage an effective water quality standards program or a plan which proposes how the Tribe will acquire additional administrative and technical expertise. The plan must ad- dress how the Tribe will obtain the funds to acquire the administrative and technical expertise.

(5)     Additional documentation re- quired by the Regional Administrator which, in the judgment of the Regional Administrator, is necessary to support a Tribal application.

(6)   Where the Tribe has previously qualified for eligibility or  ''treatment as a state'' under a Clean Water Act or Safe Drinking Water Act program, the Tribe need only provide the required information which has not been sub- mitted in a previous application.

(c)   Procedure for processing an In- dian Tribe's application.

(1)  The Regional Administrator shall process an application of an Indian Tribe submitted pursuant to § 131.8(b) in a timely manner. He shall promptly notify the Indian Tribe of receipt of the application.

(2)  Within 30 days after receipt of the Indian Tribe's application the Regional Administrator shall provide appro- priate notice. Notice shall:

(i)  Include information on  the sub- stance and basis of the Tribe's asser- tion of authority to regulate the qual- ity of reservation waters; and

(ii)  Be provided to all appropriate governmental entities.

(3)  The Regional Administrator shall provide 30 days for comments to be submitted on the Tribal application. Comments shall be limited to the Tribe's assertion of authority.

(4)  If a Tribe's asserted authority is subject to a competing or conflicting claim, the Regional Administrator, after due consideration, and in consid- eration of other comments received, shall determine whether the Tribe has adequately demonstrated that it meets the requirements of § 131.8(a)(3).

(5) Where the Regional Administrator determines that a Tribe meets the re- quirements of this section, he shall promptly provide written  notification to the Indian Tribe that the Tribe is

40 CFR Ch. I (7-1-06 Edition)

authorized  to  administer  the  Water Quality Standards program.

[56 FR 64895, Dec. 12, 1991, as amended at 59

FR 64344, Dec. 14, 1994]

Subpart B-Establishment of Water Quality Standards

§ 131.10   Designation of uses.

(a)   Each State must specify appro- priate water uses to be achieved and protected. The classification of the wa- ters of the State must take into con- sideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes including navigation. In no case shall a State adopt waste transport or waste assimilation as a designated use for any waters of the United States.

(b)   In designating uses of a water body and the appropriate criteria for those uses,  the  State shall take  into consideration the water quality stand- ards of downstream waters and shall ensure that its water quality standards provide for the attainment and mainte- nance of the water quality standards of downstream waters.

(c)   States may adopt sub-categories of a use and set the appropriate cri- teria to reflect varying needs of such sub-categories of uses, for instance, to differentiate between cold water and warm water fisheries.

(d)   At a minimum, uses are deemed attainable if they can be achieved by the imposition of effluent limits re- quired under sections 301(b) and 306 of the Act and cost-effective and reason- able best management practices for nonpoint source control.

(e)  Prior to adding or removing any use, or establishing sub-categories of a use, the State shall provide notice and an opportunity for a public hearing under § 131.20(b) of this regulation.

(f)  States may adopt seasonal uses as an alternative to reclassifying a water body or segment thereof to uses requir- ing less stringent water quality cri- teria. If seasonal uses are adopted, water quality criteria should be ad- justed  to  reflect  the  seasonal  uses,

Environmental Protection Agency                                                                         § 131.11

however, such criteria shall not pre- clude the attainment and maintenance of a more protective use in another season.

(g)   States may remove a designated use which is not an existing use, as de- fined in § 131.3, or establish sub-cat- egories of a use if the State can dem- onstrate that attaining the designated use is not feasible because:

(1)    Naturally occurring pollutant concentrations prevent the attainment of the use; or

(2)  Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use, un- less these conditions may be com- pensated for by the discharge of suffi- cient volume of effluent discharges without violating State water con- servation requirements to enable uses to be met; or

(3)    Human caused conditions or sources of pollution prevent the attain- ment of the use and cannot be rem- edied or would cause more environ- mental damage to correct than to leave in place; or

(4)  Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not fea- sible to restore the water body to its original condition or to operate such modification in a way that would re- sult in the attainment of the use; or

(5)  Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles,  and the like, unrelated to water quality, preclude attainment of aquatic life protection uses; or

(6)    Controls more stringent than those required by sections 301(b) and 306 of the Act would result in substan- tial and widespread economic and so- cial  impact.

(h) States may not remove designated uses if:

(1)  They are existing uses, as defined in § 131.3, unless a use requiring more stringent criteria is added; or

(2)  Such uses will be attained by im- plementing effluent limits required under sections 301(b) and 306 of the Act and by implementing cost-effective and reasonable best management practices for nonpoint source control.

(i)    Where existing water quality standards specify designated uses less than those which are presently being attained, the State shall revise its standards to reflect the uses actually being  attained.

(j)   A State must conduct a use at- tainability  analysis  as  described  in

§ 131.3(g) whenever:

(1)  The State designates or has des- ignated uses that do not include the uses specified in section 101(a)(2) of the Act, or

(2)  The State wishes to remove a des- ignated use that is specified in section 101(a)(2) of the Act or to adopt subcat- egories of uses specified in section 101(a)(2) of the Act which require less stringent criteria.

(k)  A State is not required to conduct a use attainability analysis under this regulation whenever designating uses which include those specified in section 101(a)(2) of the Act.

§ 131.11   Criteria.

(a)   Inclusion of pollutants: (1) States must adopt those water quality cri- teria that protect the designated use. Such criteria must be based on sound scientific rationale and must contain sufficient parameters or  constituents to protect the designated use. For wa- ters with multiple use designations, the criteria shall support the most sen- sitive use.

(2) Toxic pollutants. States must re- view water quality data and informa- tion on discharges to identify specific water bodies where toxic pollutants may be adversely affecting water qual- ity or the attainment of the designated water use or where the levels of toxic pollutants are at a level to warrant concern and must adopt criteria for such toxic pollutants applicable to the water body sufficient to protect the designated use. Where a State adopts narrative criteria for  toxic  pollutants to protect designated uses, the State must provide information identifying the method by which the State intends to regulate point source discharges of toxic pollutants on water quality lim- ited segments based on such narrative criteria. Such information may be in- cluded as part of the standards or may be included in documents generated by the  State  in  response  to  the  Water

§ 131.12

Quality    Planning    and    Management Regulations (40 CFR part 35).

(b)   Form of criteria: In establishing criteria, States should:

(1)  Establish numerical values based on:

(i) 304(a) Guidance; or

(ii) 304(a) Guidance modified to re- flect site-specific conditions; or

(iii)  Other scientifically defensible methods;

(2)  Establish narrative criteria or cri- teria based upon biomonitoring meth- ods where numerical criteria cannot be established or to supplement numerical criteria.

§ 131.12   Antidegradation policy.

(a)  The State shall develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy pursuant to this subpart. The antidegradation policy and imple- mentation methods shall, at a min- imum, be consistent with the fol- lowing:

(1)  Existing instream water uses and the level of water quality necessary to protect the existing uses shall be main- tained and protected.

(2)  Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wild- life and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovern- mental coordination and public partici- pation provisions of the State's con- tinuing planning process, that allowing lower water quality is necessary to ac- commodate important economic or so- cial development in the area in which the waters are located. In allowing such degradation or lower water qual- ity, the State shall assure water qual- ity adequate to protect existing uses fully. Further, the State shall assure that there shall be achieved the high- est statutory and regulatory require- ments for all new and existing point sources and all cost-effective and rea- sonable best management practices for nonpoint source control.

(3)   Where high quality waters con- stitute an outstanding National re- source, such as waters of National and State parks  and wildlife  refuges and waters  of  exceptional  recreational  or

40 CFR Ch. I (7-1-06 Edition)

ecological significance, that water quality shall be maintained and pro- tected.

(4)   In those cases where potential water quality impairment associated with a thermal discharge is involved, the antidegradation policy and imple- menting method shall be consistent with section 316 of the Act.

§ 131.13   General policies.

States may, at their discretion, in- clude in their State standards, policies generally affecting their application and implementation, such as mixing zones, low flows and variances. Such policies are subject to EPA review and approval.

Subpart C-Procedures for Review and Revision of Water Quality Standards

§ 131.20 State review and revision of water quality standards.

(a)  State review. The State shall from time to time, but at least once every three years, hold public hearings for the purpose of reviewing applicable water quality standards and, as appro- priate, modifying and adopting stand- ards. Any water body segment with water quality standards that do not in- clude the uses specified in section 101(a)(2) of the Act shall be re-exam- ined every three years to determine if any new information has become avail- able. If such new information indicates that the uses specified in section 101(a)(2) of the Act are attainable, the State shall revise its standards accord- ingly. Procedures States establish for identifying and reviewing water bodies for review should be incorporated into their Continuing Planning Process.

(b)    Public participation. The State shall hold a public hearing for the pur- pose of reviewing water quality stand- ards, in accordance with provisions of State law, EPA's water quality man- agement regulation (40 CFR 130.3(b)(6)) and public participation regulation (40 CFR part 25). The proposed water qual- ity standards revision and supporting analyses shall be made available to the public prior to the hearing.

(c)  Submittal to EPA. The State shall submit the results of the review, any

Environmental Protection Agency                                                                         § 131.21

supporting analysis for the use attain- ability analysis, the methodologies used for site-specific criteria develop- ment, any general policies  applicable to water quality standards and any re- visions of the standards to the Re- gional Administrator for review and approval, within 30 days of the final State action to adopt and certify the revised standard, or if no revisions are made as a result of the review, within 30 days of the completion of the review.

§ 131.21   EPA  review  and  approval  of water quality standards.

(a)   After the State submits its offi- cially adopted revisions, the Regional Administrator shall either:

(1)   Notify the State within 60 days that the revisions are approved, or

(2)   Notify the State within 90 days that the revisions are disapproved. Such  notification  of  disapproval  shall

specify the changes needed to assure compliance with the requirements of the Act and this regulation, and shall explain why the State standard is not in compliance with such requirements. Any new or revised State standard must be accompanied by some type of supporting analysis.

(b)  The Regional Administrator's ap- proval or disapproval of a State water quality standard shall be based on the requirements of the Act as described in

§§ 131.5 and 131.6, and, with respect to Great Lakes States or Tribes (as de- fined in 40 CFR 132.2), 40 CFR part 132.

(c)   How do I determine which water quality standards are applicable for pur- poses of the Act? You may determine which water quality standards are ap- plicable water quality standards for purposes of the Act from the following table:

If-	Then-	Unless or until-	In which case-
(1) A State or authorized Tribe has adopted a water quality standard that is effective under State or Tribal law and has been submitted to EPA before May 30, 2000...	. . . the State or Tribe's water quality standard is the ap- plicable water quality stand- ard for purposes of the Act...	. . . EPA has promulgated a more stringent water quality standard for the State or Tribe that is in effect...	. . . the EPA-promulgated water quality standard is the applicable water quality standard for purposes of the Act until EPA withdraws the Federal water quality standard.
(2) A State or authorized Tribe adopts a water quality stand- ard that goes into effect under State or Tribal law on or after May 30, 2000...	. . . once EPA approves that water quality standard, it becomes the applicable water quality standard for purposes of the Act...	. . . EPA has promulgated a more stringent water quality standard for the State or Tribe that is in effect...	. . . the EPA promulgated water quality standard is the applicable water quality standard for purposes of the Act until EPA withdraws the Federal water quality standard.

(d)  When do I use the applicable water quality standards identified in paragraph

(c)      above? Applicable water quality standards for purposes of the Act are the minimum standards which must be used when the CWA and regulations implementing the CWA refer to water quality standards, for example, in iden- tifying impaired waters and calcu- lating TMDLs under section 303(d), de- veloping NPDES permit limitations under section 301(b)(1)(C), evaluating proposed discharges of dredged or fill material under section 404, and in issuing certifications under section 401 of the Act.

(e)   For  how  long  does  an   applicable

water quality standard for purposes of the Act remain  the applicable water quality standard for purposes of the Act? A State

or authorized Tribe's applicable water quality standard for purposes of the Act remains the applicable standard until EPA approves a change, deletion, or addition to that water quality standard, or until EPA promulgates a more stringent water quality standard.

(f)  How can I find out what the appli- cable standards are for purposes of the Act? In each Regional office, EPA maintains a docket system for the States and authorized Tribes in that Region, available to the public, identi- fying the applicable water quality standards for purposes of the Act.

[48 FR 51405, Nov. 8, 1983, as amended at 60

FR 15387, Mar. 23, 1995; 65 FR 24653, Apr. 27,

2000]

§ 131.22

§ 131.22   EPA   promulgation   of   water quality standards.

(a)   If the State does not adopt the changes specified by the Regional Ad- ministrator within 90 days after notifi- cation of the Regional Administrator's disapproval, the Administrator shall promptly propose and promulgate such standard.

(b)  The Administrator may also pro- pose and promulgate a regulation, ap- plicable to one or more States, setting forth a new or revised standard upon determining such a standard is nec- essary to meet the requirements of the Act.

(c)    In promulgating water quality standards, the Administrator is subject to the same policies, procedures, anal- yses, and public participation require- ments established for States in these regulations.

Subpart D-Federally Promulgated Water Quality Standards

§ 131.31   Arizona.

(a)  [Reserved]

(b)  The following waters have, in ad- dition to the uses designated by the State, the designated use of fish con- sumption as defined in R18-11-101 (which is available from the Arizona Department of Environmental Quality, Water Quality Division, 3033 North Central Ave., Phoenix, AZ 85012):

COLORADO     MAIN      STEM       RIVER BASIN:

Hualapai Wash

MIDDLE GILA RIVER BASIN:

Agua Fria River (Camelback Road to Avondale WWTP)

Galena Gulch

Gila  River  (Felix  Road  to  the  Salt River)

Queen Creek (Headwaters to the Su- perior WWTP)

Queen Creek (Below Potts Canyon) SAN PEDRO RIVER BASIN:

Copper Creek

SANTA CRUZ RIVER BASIN:

Agua Caliente Wash Nogales Wash

Sonoita  Creek  (Above  the  town  of Patagonia)

Tanque Verde Creek Tinaja Wash Davidson Canyon

40 CFR Ch. I (7-1-06 Edition)

UPPER GILA RIVER BASIN

Chase Creek

(c)  To implement the requirements of R18-11-108.A.5 with respect to effects of mercury on wildlife, EPA (or the State with the approval of EPA) shall imple- ment a monitoring program to assess attainment of the water quality stand- ard.

(Sec. 303, Federal Water Pollution Control Act, as amended, 33 U.S.C. 1313, 86 Stat. 816 et seq., Pub. L. 92-500; Clean Water Act, Pub.

L.  92-500, as amended; 33 U.S.C. 1251 et seq.)

[41 FR 25000, June 22, 1976; 41 FR 48737, Nov.

5, 1976. Redesignated and amended at 42 FR

56740, Oct. 28, 1977. Further redesignated and

amended at 48 FR 51408, Nov. 8, 1983; 61 FR

20693, May 7, 1996; 68 FR 62744, Nov. 6, 2003]

§ 131.32   Pennsylvania.

(a)      Antidegradation policy. This antidegradation policy shall be appli- cable to all waters of the United States within the Commonwealth of Pennsyl- vania, including wetlands.

(1)   Existing in-stream uses and the level of water quality necessary to pro- tect the existing uses shall be main- tained and protected.

(2)  Where the quality of the waters exceeds levels necessary to support propagation of fish, shellfish, and wild- life and recreation in and on the water, that quality shall be maintained and protected unless the Commonwealth finds, after full satisfaction of the inter-governmental coordination and public participation provisions of the Commonwealth's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social develop- ment in the area in which the waters are located. In allowing such degrada- tion or lower water quality, the Com- monwealth shall assure water quality adequate to protect existing uses fully. Further, the Commonwealth shall as- sure that there shall be achieved the highest statutory and regulatory re- quirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint sources.

(3)   Where high quality waters are identified as constituting an out- standing National resource, such as waters of National and State parks and