40 C.F.R. § 131.11

Criteria

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(a) Inclusion of pollutants: (1) States must adopt those water quality criteria 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 waters with multiple use designations, the criteria shall support the most sensitive use.

(2) Toxic pollutants. States must review water quality data and information on discharges to identify specific water bodies where toxic pollutants may be adversely affecting water quality 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 limited segments based on such narrative criteria. Such information may be included as part of the standards or may be included in documents generated by the State in response to the Water Quality Planning and Management Regulations (40 CFR part 130).

(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 reflect site-specific conditions; or

(iii) Other scientifically defensible methods;

(2) Establish narrative criteria or criteria based upon biomonitoring methods where numerical criteria cannot be established or to supplement numerical criteria.

[48 FR 51405, Nov. 8, 1983, as amended at 51047, Aug. 21, 2015]

Notes of Decisions

Cited in 44 cases (10 in the last 5 years), 1977–2026 · leading case: Sanitary Brd of Charleston v. Andrew Wheeler, 918 F.3d 324 (4th Cir. 2019).

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Sanitary Brd of Charleston v. Andrew Wheeler, 918 F.3d 324 (4th Cir. 2019). · cites it 2× “40 C.F.R. § 131.11 (a)(1). As part of its review, the EPA engages in its own calculations and brings its own understanding of the most recent science to bear.”

Pud No. 1 of Jefferson Cnty. v. Washington Dep't of Ecology, 511 U.S. 700 (1994). · cites it 2× “§ 1313 (c)(2)(B); 40 CFR § 131.11 (b)(2) (1993). Washington's Class AA water quality standards are typical in that they contain several open-ended criteria which, like the use designation of the river as a fishery, must be translated into specific limitations for individual…”

Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210 (D.D.C. 2011). · cites it 2× “” 40 C.F.R. § 131.11 (a). After promulgating water quality standards, States are responsible for monitoring their covered waters and, when necessary, identifying those waters for which current pollution controls “are not stringent enough to implement any water quality standard…”

Nw. Env't Advocates v. United States Env't Prot. Agency, 855 F. Supp. 2d 1199 (D. Or. 2012). · cites it 4× “40 C.F.R. §§ 131.11 (a)(1); 131.5(a)(2). The numeric criteria must be based on sound scientific rationale, must contain sufficient parameters or constituents to protect the designated uses, and in waters with multiple use designations, the criteria must support the most…”

Nw. Env't Advocates v. U.S. Env't Prot. Agency, 268 F. Supp. 2d 1255 (D. Or. 2003). · cites it 2× “40 C.F.R. § 131.11 (a). EPA found that a criterion can adversely affect certain populations while simultaneously protecting designated uses.”

Islander East Pipeline Co., LLC v. McCarthy, 525 F.3d 141 (2d Cir. 2008). “1900 ; see also 40 C.F.R. § 131.11 (providing for states to establish numerical and narrative criteria).”

Nat. Resources Def. Council v. United States Env't Prot. Agency, 915 F.2d 1314 (9th Cir. 1990). “” 40 C.F.R. § 131.11 (1989). Under sections 301(b)(1)(C) and 402(a)(1), 33 U.”

Waterkeepers N. California v. State Water Resources Control Bd., 126 Cal. Rptr. 2d 389 (Cal. Ct. App. 2002). “( 40 C.F.R. § 131.11 (a)(1) (2002).) 7 57 Federal Register 60848, 60898 (Dec.”

In re Morrisville Hydroelectric Proj. Water Quality (VT Nat. Resources Council, VT Council of Trout Unlimted & Agency of Nat. Resources, Appellants), 2019 VT 84 (Vt. 2019). “” 40 C.F.R. § 131.11 (a)(1). In the absence of a conflict between the uses, water quality for each designated use should be maintained.”

Am. Farm Bureau Fed'n v. United States Env't Prot. Agency, 984 F. Supp. 2d 289 (M.D. Penn. 2013). “40 C.F.R. § 131.11 . These state standards must be at least as protective of water quality as existing uses, 40 C.”

City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996). · cites it 3× “40 C.F.R. § 131.11 (1995). These standards, however, do not require any particular conduct by Albuquerque; instead, Albuquerque is on notice that its revised NPDES permit may contain the specific standards which must be satisfied.”

Pennaco Energy, Inc. v. Montana Bd. of Env't Review, 2008 MT 425 (Mont. 2008). “The revised rule is consistent with 40 C.F.R. § 131.11 (a)(1) which requires states to adopt water quality standards to protect designated uses: 131.”

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— 40 C.F.R. § 131.11(a)(1) — 1 case

Nw. Env't Advocates v. United States Env't Prot. Agency, 855 F. Supp. 2d 1199 (D. Or. 2012). “40 C.F.R. §§ 131.11 (a)(1); 131.5(a)(2). The numeric criteria must be based on sound scientific rationale, must contain sufficient parameters or constituents to protect the designated uses, and in waters with multiple use designations, the criteria must support the most…”

— 40 C.F.R. § 131.11(b)(2) — 1 case

Fairfield Cnty. Bd. of Commissioners v. Nally, 34 N.E.3d 873 (Ohio 2015).

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