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Water Quality Standards Variance Building Tool

About This Tool

The Water Quality Standards (WQS) Variance Building Tool is an implementation support tool designed to help states, territories, and authorized tribes determine whether a WQS variance is an appropriate tool for a particular situation and, if so, help the entity navigate the requirements at 40 CFR Part 131.14 to determine what a legally binding WQS variance would look like and what additional information must be documented and submitted to EPA to support the WQS variance. The draft regulatory language that results from the use of this tool is intended as a regulatory framework for the state, territory, or authorized tribe to use as a starting point when drafting a legally binding WQS variance. States, territories, and authorized tribes may tailor the draft regulatory language to include additional information that more accurately captures the case-specific facts of the individual WQS variance or fits a desired format as long as all federal requirements are met. The final regulatory language and all necessary supporting documentation can then be adopted and submitted to EPA for Clean Water Act (CWA) Section 303(c) review.

Use of this tool and resulting draft regulatory language does not guarantee EPA approval. EPA encourages early and frequent coordination between a state, territory, or authorized tribe and their EPA Region before adopting the WQS variance to provide the best chance that the submission meets the requirements of the CWA and EPA’s regulations. (See EPA’s website for relevant contact information.)

WQS variances for waters discharging to the Great Lakes System are also subject to the requirements at 40 CFR Part 132. Where these two regulations overlap, the more stringent regulation applies.

Variance Building Tool Version 1.0 (2017.08.23)

How to Use This Tool

Answer the questions provided in the “Use the Variance Building Tool” tab to begin populating the draft regulatory language for your water quality standards (WQS) variance. EPA has provided examples for questions that require you to type in a response, and these examples are formatted such that they will fit grammatically into the draft regulatory language. It is recommended that you follow the format provided to reduce the likelihood that the draft regulatory language will have grammatical errors. If there is an instance where your response does not fit the standard format, you can always insert your desired format into the draft regulatory language later on. States, territories, and authorized tribes may tailor the draft regulatory language to include additional information that more accurately captures the case-specific facts of the individual WQS variance or fits a desired format as long as all federal requirements are met.

Before using this tool, EPA recommends reviewing the Water Quality Standards Variance Building Tool – FAQs (PDF)(2 pp, 140 K), as well as the Checklist for Water Quality Standards Variance Supporting Documentation Requirements (PDF)(1 pg, 160K), so you can be prepared with the necessary information to answer each question prior to beginning the tool.

As you progress through the questions, this tool will record each of your responses. To view your responses to any previous question, click the “Show/Hide Responses” button. Using the “Show/Hide Responses” button, you may also copy your responses into another document. You may return to previous questions by clicking “Go Back” or by clicking on the link to a particular question in the “Progress” list. If you wish to clear all your responses and start fresh, you may click “Start Over.” If you close your browser, this tool will save your progress so you can continue your work at a later time. Please note that responses are stored within your computer’s internet browser and are not transmitted to EPA or anywhere else.

After you have answered all of the questions, be sure to scroll down to the draft regulatory language provided by this tool. States, territories, and authorized tribes may wish to use this draft regulatory language as a regulatory framework to start discussions with their EPA Region and stakeholders as they begin drafting a legally binding WQS variance. Once the state, territory or authorized tribe has tailored the WQS variance to fit their situation, the entity may adopt the WQS variance and then submit it and all the required supporting documentation to EPA for Clean Water Act Section 303(c) review.

Use the Variance Building Tool

Questions/Information

 

Progress

Single Discharger-Specific WQS Variance

The [Q1] hereby adopts a Water Quality Standards (WQS) variance for [T4]. This WQS variance is for the [T2] criterion, expressed as [T3], and the associated [T1], and only applies to the specified discharger and waterbody/waterbody segment in this WQS variance. The [Q1] adopts this WQS variance based on its findings, justifying the need for a WQS variance consistent with the requirements of 40 CFR Part 131.14. [When submitting your WQS variance, be sure to provide supporting documentation to justify the need for the WQS variance consistent with 40 CFR Part 131.14(b)(2)(i).] This WQS variance expires [T14]. [When submitting your WQS variance, be sure to provide supporting documentation to describe the actions that will occur during this timeframe to justify the duration of the WQS variance consistent with 40 CFR Part 131.14(b)(2)(ii).]

A WQS variance is a time-limited designated use and criterion that reflects the highest attainable condition during the term specified in this WQS variance. If approved by the United States Environmental Protection Agency (EPA), this WQS variance will be the applicable water quality standard in effect for the purposes of developing CWA Section 301(b)(1)(C) National Pollutant Discharge Elimination System (NPDES) permit limits. The WQS variance may also be used for purposes of CWA Section 401 certifications. The underlying designated use and associated criterion remain applicable for all other CWA purposes, and all other uses and associated criteria not specified in this WQS remain applicable for all CWA purposes.

The interim requirements applicable throughout the term of this WQS variance represent the [Q22]. These interim requirements are expressed as [T10][T11][T12]. [Q24] [T13] The applicable interim requirements of this WQS variance are either the highest attainable condition adopted in this WQS variance or the highest attainable condition later identified during any reevaluation of this WQS variance conducted as specified in the paragraph below, whichever is more stringent.

The [Q1] shall reevaluate the highest attainable condition of this WQS variance, using all existing and readily available information, [T15], and will submit the results of the reevaluation to the EPA within 30 days of completion of the reevaluation.

If the [Q1] does not complete a reevaluation at the frequency specified in this rule, or does not submit to the EPA the results of the reevaluation within 30 days of completion of the reevaluation, the WQS variance will no longer be the applicable water quality standard until the [Q1] completes and submits the reevaluation to the EPA. The [Q1] intends to obtain public input on the reevaluation by [T16].

Multiple Discharger-Specific WQS Variance

The [Q1] hereby adopts a Water Quality Standards (WQS) variance for [T5]. This WQS variance is for the [T2] criterion, expressed as [T3], and the associated [T1], and only applies to the dischargers and waterbody/waterbody segment(s) specified in this WQS variance. The [Q1] adopts this WQS variance based on its findings, justifying the need for a WQS variance consistent with the requirements of 40 CFR Part 131.14. [When submitting your WQS variance, be sure to provide supporting documentation to justify the need for the WQS variance consistent with 40 CFR Part 131.14(b)(2)(i).] This WQS variance expires [T14]. [When submitting your WQS variance, be sure to provide supporting documentation to describe the actions that will occur during this timeframe to justify the duration of the WQS variance consistent with 40 CFR Part 131.14(b)(2)(ii)]

A WQS variance is a time-limited designated use and criterion that reflects the highest attainable condition during the term specified in this WQS variance. If approved by the United States Environmental Protection Agency (EPA), this WQS variance will be the applicable water quality standard in effect for the purposes of developing CWA Section 301(b)(1)(C) National Pollutant Discharge Elimination System (NPDES) permit limits. The WQS variance may also be used for purposes of CWA Section 401 certifications. The underlying designated use and associated criterion remain applicable for all other CWA purposes, and all other uses and associated criteria not specified in this WQS remain applicable for all CWA purposes.

The interim requirements applicable throughout the term of this WQS variance represent the [Q22]. These interim requirements are expressed as [T10][T11][T12]. [Q24][T13] The applicable interim requirements of this WQS variance are either the highest attainable condition adopted in this WQS variance or the highest attainable condition later identified during any reevaluation of this WQS variance conducted as specified in the paragraph below, whichever is more stringent.

The [Q1] shall reevaluate the highest attainable condition of this WQS variance, using all existing and readily available information, [T15], and will submit the results of the reevaluation to the EPA within 30 days of completion of the reevaluation.

If the [Q1] does not complete a reevaluation at the frequency specified in this rule, or does not submit to the EPA the results of the reevaluation within 30 days of completion of the reevaluation, the WQS variance will no longer be the applicable water quality standard until the [Q1] completes and submits the reevaluation to the EPA. The [Q1] intends to obtain public input on the reevaluation by [T16].

[Replace the example placeholder table below with your table of dischargers that includes the name, permit number (if available), receiving waterbody, and the highest attainable condition for each discharger.]
 
Table A: Dischargers Subject to this WQS Variance
Discharger NPDES Permit No.
(if available)
Receiving Waterbody Highest Attainable Condition (HAC)
Company Name 1 NPDES Permit No. 1 Receiving Waterbody 1 HAC 1
Company Name 2 NPDES Permit No. 2 Receiving Waterbody 2 HAC 2
Company Name 3 NPDES Permit No. 3 Receiving Waterbody 3 HAC 3
... ... ... ...

Multiple Discharger-Specific (w/ Eligibility Requirements) WQS Variance

The [Q1] hereby adopts a Water Quality Standards (WQS) variance for the [T2] criterion, expressed as [T3], and the associated [T1], and only applies to the dischargers and waterbody/waterbody segment(s) specified in this WQS variance. Dischargers that are eligible for coverage under this WQS variance must meet the following specific requirements: [T7]. The dischargers that meet these requirements at the time the WQS variance is adopted include: [T6]. For a list of all dischargers subject to this WQS variance, see the [T8]. Additional waterbodies/waterbody segments potentially affected by this WQS variance include: [T9]. The [Q1] adopts this WQS variance based on its findings, justifying the need for a WQS variance consistent with the requirements of 40 CFR Part 131.14. [When submitting your WQS variance, be sure to provide supporting documentation to justify the need for the WQS variance consistent with 40 CFR Part 131.14(b)(2)(i).] This WQS variance expires [T14]. [When submitting your WQS variance, be sure to provide supporting documentation to describe the actions that will occur during this timeframe to justify the duration of the WQS variance consistent with 40 CFR Part 131.14(b)(2)(ii).]

A WQS variance is a time-limited designated use and criterion that reflects the highest attainable condition during the term specified in this WQS variance. If approved by the United States Environmental Protection Agency (EPA), this WQS variance will be the applicable water quality standard in effect for the purposes of developing CWA Section 301(b)(1)(C) National Pollutant Discharge Elimination System (NPDES) permit limits. The WQS variance may also be used for purposes of CWA Section 401 certifications. The underlying designated use and associated criterion remain applicable for all other CWA purposes, and all other uses and associated criteria not specified in this WQS remain applicable for all CWA purposes.

The interim requirements applicable throughout the term of this WQS variance represent the [Q22]. These interim requirements are expressed as [T10][T11][T12]. [Q24] [T13] The applicable interim requirements of this WQS variance are either the highest attainable condition adopted in this WQS variance or the highest attainable condition later identified during any reevaluation of this WQS variance conducted as specified in the paragraph below, whichever is more stringent.

The [Q1] shall reevaluate the highest attainable condition of this WQS variance, using all existing and readily available information, [T15], and will submit the results of the reevaluation to the EPA within 30 days of completion of the reevaluation.

If the [Q1] does not complete a reevaluation at the frequency specified in this rule, or does not submit to the EPA the results of the reevaluation within 30 days of completion of the reevaluation, the WQS variance will no longer be the applicable water quality standard until the [Q1] completes and submits the reevaluation to the EPA. The [Q1] intends to obtain public input on the reevaluation by [T16].
 

[Replace the example placeholder table below with your table of dischargers that includes the name, permit number (if available), receiving waterbody, and the highest attainable condition for each discharger.]
 
Table A: Dischargers Subject to this WQS Variance
Discharger NPDES Permit No.
(if available)
Receiving Waterbody Highest Attainable Condition (HAC)
Company Name 1 NPDES Permit No. 1 Receiving Waterbody 1 HAC 1
Company Name 2 NPDES Permit No. 2 Receiving Waterbody 2 HAC 2
Company Name 3 NPDES Permit No. 3 Receiving Waterbody 3 HAC 3
... ... ... ...

Waterbody/Waterbody Segment Variance

The [Q1] hereby adopts a Water Quality Standards (WQS) variance for the [T2] criterion, expressed as [T3], and the associated [T1], that applies to [T17]. The [Q1] adopts this WQS variance based on its findings, justifying the need for a WQS variance consistent with the requirements of 40 CFR Part 131.14. [When submitting your WQS variance, be sure to provide supporting documentation to justify the need for the WQS variance consistent with 40 CFR Part 131.14(b)(2)(i).] This WQS variance expires [T21]. [When submitting your WQS variance, be sure to provide supporting documentation to describe the actions that will occur during this timeframe to justify the duration of the WQS variance consistent with 40 CFR Part 131.14(b)(2)(ii).]

A WQS variance is a time-limited designated use and criterion that reflects the highest attainable condition during the term specified in this WQS variance. If approved by the United States Environmental Protection Agency (EPA), this WQS variance will be the applicable water quality standard in effect for the purposes of developing CWA Section 301(b)(1)(C) National Pollutant Discharge Elimination System (NPDES) permit limits. The WQS variance may also be used for purposes of CWA Section 401 certifications. The underlying designated use and associated criterion remain applicable for all other CWA purposes, and all other uses and associated criteria not specified in this WQS remain applicable for all CWA purposes.

The interim requirements applicable throughout the term of this WQS variance represent the [Q33].These interim requirements are expressed as [T18][T19]. [Q35] [T20] The applicable interim requirements of this WQS variance are either the highest attainable condition adopted in this WQS variance or the highest attainable condition later identified during any reevaluation of this WQS variance conducted as specified in the paragraph below, whichever is more stringent.

The [Q1] shall reevaluate the highest attainable condition of this WQS variance, using all existing and readily available information, [T22], and will submit the results of the reevaluation to the EPA within 30 days of completion of the reevaluation. [When submitting your WQS variance, be sure to provide supporting documentation identifying any cost-effective and reasonable best management practices for nonpoint source controls related to the pollutant or water quality parameter specified in this WQS variance consistent with 40 CFR Part 131.14(b)(2)(iii)(A). For subsequent variances to this waterbody or waterbody segment, also document whether and to what extent best management practices for nonpoint source controls were implemented and what water quality progress was achieved consistent with 40 CFR Part 131.14(b)(2)(iii)(B).]

If the [Q1] does not complete a reevaluation at the frequency specified in this rule, or does not submit to the EPA the results of the reevaluation within 30 days of completion of the reevaluation, the WQS variance will no longer be the applicable water quality standard until the [Q1] completes and submits the reevaluation to the EPA. The [Q1] intends to obtain public input on the reevaluation by [T23].

Responses

    Resources

    40 CFR Part 131.14(b)(1)(i)

    • (a) ...
    • (b) Requirements for submission to EPA:
      • (1) A WQS variance must include:
        • (i) Identification of the pollutant(s) or water quality parameter(s), and the water body/waterbody segment(s) to which the WQS variance applies. Discharger(s)-specific WQS variances must also identify the permittee(s) subject to the WQS variance.

    40 CFR Part 131.14(a)(4)

    • (a) Applicability
      • (1) ...
      • (2) ...
      • (3) ...
      • (4) A state may not adopt WQS variances if the designated use and criterion addressed by the WQS variance can be achieved by implementing technology-based effluent limits required under sections 301(b) and 306 of the Act.

    40 CFR Part 131.14(b)(2)(i)

    • (a) ...
    • (b) Requirements for Submission to EPA:
      • (1) ...
      • (2) The supporting documentation must include:
        • (i) Documentation demonstrating the need for a WQS variance.

    40 CFR Part 131.14(b)(2)(i)(A)

    • (a) ...
    • (b) Requirements for Submission to EPA:
      • (1) ...
      • (2) The supporting documentation must include:
        • (i) Documentation demonstrating the need for a WQS variance.
          • (A) For a WQS variance to a use specified in section 101(a)(2) of the Act or subcategory of such a use, the state must demonstrate that attaining the designated use and criterion is not feasible throughout the term of the WQS variance because:
            • (1) One of the factors listed in §131.10(g) is met, or
            • (2) Actions necessary to facilitate lake, wetland, or stream restoration through dam removal or other significant reconfiguration activities preclude attainment of the designated use and criterion while the actions are being implemented.

    40 CFR Part 131.14(b)(2)(i)(B)

    • (a) ...
    • (b) Requirements for Submission to EPA:
      • (1) ...
      • (2) The supporting documentation must include:
        • (i) Documentation demonstrating the need for a WQS variance.
          • (A) ...
          • (B) For a WQS variance to a non-101(a)(2) use, the State must submit documentation justifying how its consideration of the use and value of the water for those uses listed in §131.10(a) appropriately supports the WQS variance and term. A demonstration consistent with (b)(2)(i)(A) of this section may be used to satisfy this requirement.

    40 CFR Part 131.10(a)

    • (a) Each State must specify appropriate water uses to be achieved and protected. The classification of the waters of the State must take into consideration the use and value of the 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. If adopting new or revised designated uses other than the uses specified in section 101(a)(2) of the Act, or removing designated uses, States must submit documentation justifying how their consideration of the use and value of water for those uses listed in this paragraph appropriately supports the State’s action. A use attainability analysis may be used to satisfy this requirement. In no case shall a State adopt waste transport or waste assimilation as a designated use for any waters of the United States.

    40 CFR Part 131.14(b)(1)(ii)(A)

    • (a) ...
    • (b) Requirements for Submission to EPA
      • (1) A WQS variance must include:
        • (i) ...
        • (ii) The requirements that apply throughout the term of the WQS variance. The requirements shall represent the highest attainable condition of the water body or waterbody segment applicable throughout the term of the WQS variance based on the documentation required in (b)(2) of this section. The requirements shall not result in any lowering of currently attained ambient water quality, unless a WQS variance is necessary for restoration activities, consistent with paragraph (b)(2)(i)(A)(2) of this section. The State must specify the highest attainable condition of the water body or waterbody segment as a quantifiable expression that is one of the following:
          • (A) For discharger(s)-specific WQS variances:
            • (1) The highest attainable interim criterion, or
            • (2) The interim effluent condition that reflects the greatest pollutant reduction achievable, or
            • (3) If no additional feasible pollutant control technology can be identified, the interim criterion or interim effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the State adopts the WQS variance, and adoption and implementation of a Pollutant Minimization Program.

    40 CFR Part 131.14(b)(1)(iv)

    • (a) ...
    • (b) Requirements for Submission to EPA:
      • (1) A WQS variance must include:
        • (i) ...
        • (ii) ...
        • (iii) ...
        • (iv) The term of the WQS variance, expressed as an interval of time from the date of EPA approval or a specified date. The term of the WQS variance must only be as long as necessary to achieve the highest attainable condition and consistent with the demonstration provided in paragraph (b)(2) of this section. The State may adopt a subsequent WQS variance consistent with this section.

    40 CFR Part 132 Appendix F, Procedure (2)(B)

    • Procedure 1 ...
    • Procedure 2: Variances from Water Quality Standards for Point Sources
      • (A) ...
      • (B) Maximum Timeframe for Variances. A WQS variance shall not exceed five years or the term of the NPDES permit, whichever is less. A State or Tribe shall review, and modify as necessary, WQS variances as part of each water quality standards review pursuant to section 303(c) of the CWA.

    40 CFR Part 131.14(b)(1)(v)

    • (a) ...
    • (b) Requirements for Submission to EPA:
      • (1) A WQS variance must include:
        • (i) ...
        • (ii) ...
        • (iii) ...
        • (iv) ...
        • (v) For a WQS variance with a term greater than five years, a specified frequency to reevaluate the highest attainable condition using all existing and readily available information and a provision specifying how the State intends to obtain public input on the reevaluation. Such reevaluations must occur no less frequently than every five years after EPA approval of the WQS variance and the results of such reevaluation must be submitted to EPA within 30 days of completion of the reevaluation.

    40 CFR Part 131.14(b)(1)(iii)

    • (a) ...
    • (b) Requirements for Submission to EPA:
      • (1) A WQS variance must include:
        • (i) ...
        • (ii) ...
        • (iii) A statement providing that the requirements of the WQS variance are either the highest attainable condition identified at the time of the adoption of the WQS variance, or the highest attainable condition later identified during any reevaluation consistent with (b)(1)(v) of this section, whichever is more stringent.

    40 CFR Part 131.14(b)(1)(vi)

    • (a) ...
    • (b) Requirements for Submission to EPA:
      • (1) A WQS variance must include:
        • (i) ...
        • (ii) ...
        • (iii) ...
        • (iv) ...
        • (v) ...
        • (vi) A provision that the WQS variance will no longer be the applicable water quality standard for purposes of the Act if the State does not conduct a reevaluation consistent with the frequency specified in the WQS variance or the results are not submitted to EPA as required by (b)(1)(v) of this section.

    40 CFR Part 131.20(b)

    • (a) ...
    • (b) Public participation. The State shall hold one or more public hearings for the purpose of reviewing water quality standards as well as when revising water quality standards, in accordance with provisions of State law and EPA’s public participation regulation (40 CFR Part 25). The proposed water quality standard revision and supporting analyses shall be made available to the public prior to the hearing.

    40 CFR Part 131.14(b)(1)(ii)(B)

    • (a) ...
    • (b) Requirements for Submission to EPA
      • (1) A WQS variance must include:
        • (i) ...
        • (ii) The requirements that apply throughout the term of the WQS variance. The requirements shall represent the highest attainable condition of the water body or waterbody segment applicable throughout the term of the WQS variance based on the documentation required in (b)(2) of this section. The requirements shall not result in any lowering of currently attained ambient water quality, unless a WQS variance is necessary for restoration activities, consistent with paragraph (b)(2)(i)(A)(2) of this section. The State must specify the highest attainable condition of the water body or waterbody segment as a quantifiable expression that is one of the following:
          • (A) ...
          • (B) For WQS variances applicable to a water body or waterbody segment:
            • (1) The highest attainable interim use and interim criterion, or
            • (2) If no additional feasible pollutant control technology can be identified, the interim use and interim criterion that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the State adopts the WQS variance, and the adoption and implementation of a Pollutant Minimization Program.

    40 CFR Part 131.14(b)(2)(iii)

    • (a) ...
    • (b) Requirements for Submission to EPA
      • (1) ...
      • (2) The supporting documentation must include:
        • (i) ...
        • (ii) ...
        • (iii) In addition to (i) and (ii) of this section, for a WQS variance that applies to a water body or waterbody segment:
          • (A) Identification and documentation of any cost-effective and reasonable best management practices for nonpoint source controls related to the pollutant(s) or water quality parameter(s) and water body or waterbody segment(s) specified in the WQS variance that could be implemented to make progress towards attaining the underlying designated use and criterion. A State must provide public notice and comment for any such documentation.
          • (B) Any subsequent WQS variance for a water body or waterbody segment must include documentation of whether and to what extent best management practices for nonpoint source controls were implemented to address the pollutant(s) or water quality parameter(s) subject to the WQS variance and the water quality progress achieved.

    40 CFR Part 131.10(b)

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

    40 CFR Part 125.3(c)

    • (a) ...
    • (b) ...
    • (c) Methods of imposing technology-based treatment requirements in permits. Technology-based treatment requirements may be imposed through one of the following three methods:
      • (1) Application of EPA-promulgated effluent limitations developed under section 304 of the Act to dischargers by category or subcategory. These effluent limitations are not applicable to the extent that they have been remanded or withdrawn. However, in the case of a court remand, determinations underlying effluent limitations shall be binding in permit issuance proceedings where those determinations are not required to be reexamined by a court remanding the regulations. In addition, dischargers may seek fundamentally different factors variances from these effluent limitations under §122.21 and subpart D of this part.
      • (2) On a case-by-case basis under section 402(a)(1) of the Act, to the extent that EPA-promulgated effluent limitations are inapplicable. The permit writer shall apply the appropriate factors listed in §125.3(d) and shall consider:
        • (i) The appropriate technology for the category or class of point sources of which the applicant is a member, based upon all available information; and
        • (ii) Any unique factors relating to the applicant.
          [Comment: These factors must be considered in all cases, regardless of whether the permit is being issued by EPA or an approved State.]
      • (3) Through a combination of the methods in paragraphs (d) (1) and (2) of this section. Where promulgated effluent limitations guidelines only apply to certain aspects of the discharger's operation, or to certain pollutants, other aspects or activities are subject to regulation on a case-by-case basis in order to carry out the provisions of the Act.
      • (4) Limitations developed under paragraph (d)(2) of this section may be expressed, where appropriate, in terms of toxicity (e.g., “the LC50 for fat head minnow of the effluent from outfall 001 shall be greater than 25%”). Provided, That is shown that the limits reflect the appropriate requirements (for example, technology-based or water-quality-based standards) of the Act.
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