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Basic Information topics
[Why
are WQS Important?] [WQS Review and Revision]
[Role of the Public] [Designated
Uses] [Water Quality Criteria]
[Antidegradation] [General
Policies] [Indian Tribe Participation]
[WQS Program History]
Statutory History
The first comprehensive legislation for water pollution control
was the Water Pollution Control Act of 1948 (Pub. L. 845, 80th
Congress). This law adopted principles of state and federal
cooperative program development, limited federal enforcement authority,
and limited federal financial assistance. These principles
were continued in the Federal Water Pollution Control Act (Pub.
L. 660, 84th Congress) in 1956 and in the Water Quality Act of
1965. Under the 1965 Act, States were directed to develop
water quality standards establishing water quality goals for interstate
waters. By the early 1970's, all the States had adopted
such water quality standards. Since then, States have revised
their standards to reflect new scientific information, the impact
on water quality of economic development and the results of water
quality controls.
Due to enforcement complexities and other problems, an approach
based solely on water quality standards was deemed insufficiently
effective. In the Federal Water Pollution Control Act Amendments
of 1972 (Pub. L. 92500, Clean Water Act or CWA), Congress established
the National Pollutant Discharge Elimination System (NPDES) whereby
each point source discharger to waters of the U.S. is required
to obtain a discharge permit. The 1972 Amendments require
EPA to establish technology based effluent limitations that are
to be incorporated into NPDES permits. In addition, the
amendments extended the water quality standards program to intrastate
waters and required NPDES permits to be consistent with applicable
state water quality standards. Thus, the CWA established
complementary technology-based and water quality-based approaches
to water pollution control.
Water quality standards serve as the foundation for the water-quality
based approach to pollution control and are a fundamental component
of watershed management. Water quality standards are State
or Tribal law or regulation that: define the water quality goals
of a water body, or segment thereof, by designating the use or
uses to be made of the water; criteria necessary to protect the
uses; and protect water quality through antidegradation provisions.
States and Tribes adopt water quality standards to protect public
health or welfare, enhance the quality of water, and serve the
purposes of the Act. "Serve the purposes of the Act"
(as defined in Sections 1O1(a), 1O1(a)(2), and 3O3(c) of the Act)
means that water quality standards should: 1) include provisions
for restoring and maintaining chemical, physical, and biological
integrity of State waters, 2) provide, wherever attainable, water
quality for the protection and propagation of fish, shellfish,
and wildlife and recreation in and on the water ("fishable/swimmable"),
and 3) consider the use and value of State waters for public water
supplies, propagation of fish and wildlife, recreation, agricultural
and industrial purposes, and navigation. See 40 CFR 131.2.
Section 303(c) of the CWA establishes the basis for the current
water quality standards program. Section 303(c):
1. Defines water quality standards;
2. Identifies acceptable beneficial uses: propagation
of fish, shellfish and wildlife, public, agricultural, industrial
water supplies and navigation;
3. Requires that State and Tribal standards protect public
health or welfare, enhance the quality of water and serve the
purposes of the Act;
4. Requires that States and Tribes review their standards at
least every three years;
5. Establishes the process for EPA review of State and Tribal
standards, including where necessary the promulgation of a superseding
Federal rule in cases where a State's or Tribe's standards are
not consistent with applicable requirements of the CWA or in
situations where the Administrator determines that Federal standards
are necessary to meet the requirements of the Act.
The decade of the 1970's saw State and EPA attention focus on
creating the infrastructure necessary to support the NPDES permit
program and development of technology-based effluent limitations.
While the water quality standards program continued, it was a
low priority in the overall CWA program. In the late 1970's
and early 1980's, it became obvious that greater attention to
the water quality-based approach to pollution control was needed
to effectively protect and enhance the nation's waters.
The first statutory evidence of this was the enactment of a CWA
requirement that after December 29, 1984, no construction grant
could be awarded for projects that discharged into stream segments
which had not, at least once since December 1981, had their water
quality standards reviewed and revised or new standards adopted
as appropriate under Section 303(c). The efforts by the
States to comply with this onetime requirement essentially made
the States' water quality standards current as of that date for
segments with publicly-owned treatment works (POTWs) discharging
into them.
Additional impetus to the water quality standards program occurred
on February 4, 1987, when Congress enacted the Water Quality Act
of 1987 (Pub. L. 1004). Congressional impatience with the
lack of progress in State adoption of standards for toxics (which
had been a national program priority since the early 1980's) resulted
in the 1987 adoption of new water quality standard provisions
in the Water Quality Act amendments. These amendments reflected
Congress' conclusion that toxic pollutants in water are one of
the most pressing water pollution problems. One concern
Congress had was that States were relying, for the most part,
on narrative criteria to control toxics (e.g. "no toxics
in toxic amounts"), which made development of effluent limitations
in permits difficult. To remedy this, Congress adopted section
303(c)(2)(B), which essentially required development of numeric
criteria for those water body segments where toxic pollutants
were likely to adversely affect designated uses.
The 1987 Amendments gave new teeth to the control of toxic pollutants.
As Senator Mitchell put it, Section 303(c)(2)(B) requires "States
to identify waters that do not meet water quality standards due
to the discharge of toxic substances, to adopt numerical criteria
for the pollutants in such waters, and to establish effluent limitations
for individual discharges to such water bodies."."
(From Senator Mitchell, 133 Cong. Rec. S733).
To assist States in complying with Section 303(c)(2)(B), EPA
issued program guidance in December 1988 and instituted an expanded
program of training and technical assistance.
Section 518 was another major addition in the 1987 Amendments
to the Act. This section extended participation in the water
quality standards and 401 certification programs to certain Indian
Tribes. The Act directed EPA to establish procedures by
which a Tribe could "qualify for treatment as a State,"
at its option, for purposes of administering the standards and
401 certification programs. The Act also required EPA to
create a mechanism to resolve disputes that might develop when
unreasonable consequences arise from a Tribe and a State or another
Tribe adopting differing water quality standards on common bodies
of water.
Furthermore, with the 1987 Amendments, the Act explicitly recognized
EPA's antidegradation policy for the first time. The intent
of the antidegradation policy in EPA's regulation was and is to
protect existing uses and the level of water quality necessary
to protect existing uses and to provide a means for assessing
activities that may lower water quality in high quality waters.
Section 3O3(d)(4) of the Act requires that water quality standards
in those waters that meet or exceed levels necessary to support
designated uses "may be revised only if such revision is
subject to and consistent with the antidegradation policy established
under this section."
Regulatory Requirements and Guidance
In the late 1960's and early 1970's the water quality standards
program was initiated and administered based on minimal guidance
and Federal policies--many of which are still reflected in the
water quality standards program today.
EPA first promulgated a water quality standards regulation in
1975 (4O CFR 13O.17, 4O FR 55334, November 28, 1975) as part of
EPA's water quality management regulations mandated under Section
3O3(e) of the Act. As discussed earlier, the standards program
had a relatively low priority during this time. This was
reflected in the minimal requirements of the first Water Quality
Standards Regulation. Few requirements on designating water
uses and procedures were included. The Regulation merely
required "appropriate" water quality criteria necessary
to support designated uses. Toxic pollutants or any other
specific criteria were not mentioned. The antidegradation
policy was incorporated as a regulatory requirement.
State response to the initial regulation was varied and in some
cases inadequate. Some States developed detailed water quality
standards regulations while others adopted only general provisions
which proved to be of limited use in the management of increasingly
complex water quality problems. The few water quality criteria
that were adopted addressed a limited number of pollutants and
primarily described fundamental water quality conditions (e.g.,
pH, temperature, dissolved oxygen and suspended solids) or dealt
with conventional pollutants.
In the late 1970s, a greater appreciation evolved on the need
to expand and accelerate the control of pollutants in surface
waters using water quality-based controls. It became clear
that primary reliance on industry effluent guidelines or effluent
standards under Section 3O7 of the Act would not comprehensively
address pollutants, particularly toxic pollutants, and that existing
State water quality standards needed to be better developed.
EPA moved to strengthen the water quality program to complement
the technology based controls.
To facilitate this effort, EPA decided to amend the Water Quality
Standards Regulation to explicitly address toxic criteria requirements
in State standards and other legal and programmatic issues.
This effort culminated in the promulgation of a revised water
quality standards regulation on November 8, 1983 (54 FR
51400), which is still in effect. This regulation is much
more comprehensive than its predecessor and it includes many more
specific regulatory and procedural requirements. Nonetheless,
it is still a succinct and flexible regulation for a program with
a scope as broad as the national water quality criteria and standards
program.
The regulation specifies the roles of the States, Tribes and
EPA and the administrative requirements for States and Tribes
in adopting and submitting their standards to EPA for review.
It also delineates the EPA requirements for review of State and
Tribal standards and promulgation of federal standards.
The regulation provided States and subsequently Tribes with the
option of refining their use designation process by allowing them
to establish subcategories of uses, such as cold water and warm
water aquatic life designations. The regulation expanded
and clarified the factors that could be applied by a State in
removing a designated use that is not an existing use. The
regulation recognized that naturally occurring pollutant concentrations,
naturally low or intermittent flow conditions, human caused conditions
or sources of pollution that cannot be remedied, hydrologic modifications
(such as dams or channelized streams), natural physical conditions,
and widespread economic and social impact could be used to demonstrate
that attaining a use designation is not feasible (see 40 CFR 131.10(g)).
Part 131.10(h) identified circumstances in which States are prohibited
from removing designated uses.
Much more specificity was provided in the 1983 regulation regarding
the requirements for States on the form of water quality criteria
adopted by the States. Under 40 CFR 131.11(b) of the regulation,
States and Tribes may use the criteria developed by EPA under
Section 304(a) of the Act, 304(a) guidance modified to reflect
site-specific conditions, or criteria developed through other
scientifically defensible methods. Section 304(a) criteria
are the water quality criteria that EPA develops and provides
in the form of guidance to States and Tribes pursuant to CWA section
304(a). In practice, States and Tribes have applied all
of these provisions in setting water quality standards.
The 1983 regulation also clarified that States and subsequently
Tribes may adopt discretionary policies affecting the implementation
of standards, such as mixing zones, low flows, and variances.
Such policies are subject to EPA review under 303(c). Section
131.11 of the regulation requires States and subsequently Tribes
with water quality standards programs to review available information
and "...to identify specific water bodies where toxic pollutants
may be adversely affecting water quality ...and... adopt criteria
for such toxic pollutants applicable to the water body sufficient
to protect the designated use."
Under the statutory scheme, during the 3-year review period following
EPA's 1980 publication of section 304(a) water quality criteria
to the protect human health and aquatic life, States were expected
to review those criteria and adopt standards for many priority
toxic pollutants. A few States adopted large numbers of
numeric toxics criteria, primarily for the protection of aquatic
life. Other States adopted few or no water quality criteria
for priority toxic pollutants. Some relied on a narrative
"free from toxicity" criterion, and "action levels"
for toxic pollutants or occasionally calculated site-specific
criteria. Few States addressed the protection of human health
by adopting numeric human health criteria.
In support of the 1983 Regulation, EPA simultaneously issued
program guidance entitled Water Quality Standards Handbook
(December, 1983). The Handbook provided guidance on
the interpretation and implementation of the Water Quality Standards
Regulation. This document also contained information on
scientific and technical analyses that are used in making decisions
that would impact water quality standards. EPA also developed
the Technical Support Document for Water Quality Based Toxics
Control (EPA 44/485032, September,1985)(TSD) which provided
additional guidance for implementing State water quality standards.
In 1991, EPA revised and expanded the TSD. (EPA 505/2-90-001,
March 1991). In 1994, EPA issued the Water Quality Standards
Handbook: Second Edition (EPA-823-B-94-006, August 1994).
To accelerate compliance with CWA section 303(c)(2)(B) (created
by the 1987 Water Quality Act), EPA started action in 1990 to
promulgate numeric water quality criteria for those States that
had not adopted sufficient water quality standards for toxic pollutants.
The intent of the rule making, known as the National Toxics Rule,
was to strengthen State water quality management programs by increasing
the level of protection afforded to aquatic life and human health
through the adoption of all available criteria for toxic pollutants
present or likely to be present in State waters. This action
culminated on December 22, 1992, with EPA promulgating Federal
water quality criteria for priority toxic pollutants for 14 States
and Territories (see 57 FR 60848).
Subsequent to the promulgation of criteria under the National
Toxics Rule, EPA altered its national policy on the expression
of aquatic life criteria for metals. On May 4, 1995 at 60
FR 22228, EPA issued a stay of several metals criteria (expressed
as total recoverable metal) previously promulgated under the National
Toxics Rule for the protection of aquatic life. EPA simultaneously
issued an interim final rule that changed these metal criteria
promulgated under the National Toxics Rule from the total recoverable
form to the dissolved form.
The Water Quality Standards Regulation was amended in 1991 to
implement Section 518 of the Act to expand the standards program
to include Indian Tribes (56 FR 64893, December 12, 1991).
EPA added 40 CFR 131.7 to describe the requirements of the issue
dispute resolution mechanism (to resolve unreasonable consequences
that may arise between a Tribe and a State or another Tribe when
differing water quality standards have been adopted for a common
body of water) and 40 CFR 131.8 to establish the procedures by
which a Tribe applies for authorization to assume the responsibilities
of the water quality standards and section 401 certification programs.
Water quality standards are essential to a wide range of surface
water activities, including: (1) setting and revising water
quality goals for watersheds and/or individual water bodies, (2)
monitoring water quality to provide information upon which water
quality based decisions will be made, (3) calculating total maximum
daily loads (TMDLs), waste load allocations (WLAs) for point sources
of pollution, and load allocations (LAs) for non point sources
of pollution, (4) issuing water quality certifications for activities
that may affect water quality and that require a federal license
or permit, (5) developing water quality management plans which
prescribe the regulatory, construction, and management activities
necessary to meet the water body goals, (6) calculating NPDES
water quality-based effluent limitations for point sources, in
the absence of TMDLs, WLAs, LAs, and/or water quality management
plans; (7) preparing various reports and lists that document the
condition of the State's or Tribe's water quality, and (8) developing,
revising, and implementing an effective section 319 management
plan which outlines the State's or Tribe's control strategy for
non point sources of pollution.
Also, as described in EPA's 40 CFR 131.21, EPA requires that
water quality standards adopted by states and authorized tribes
on or after May 30, 2000 must be approved by EPA before they can
be used as the basis for actions, such as establishing water quality-based
effluent limitations or toal maximum daily loads (TMDLs), under
the Clean Water Act. (See 65 FR 24641, April 27, 2000, for more
information regarding this requirement).
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