# CHAPTER 3 Issue Category: Legal Authority

Pages 3- 16 – 3- 20

Response to Public Comments

Water Quality Standard Regulatory Revisions

August , 2015

40 CFR Part 131 Docket #: EPA

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This document is part of a larger document

.Chapter 3 – Response Essays 3.a – Legal – Other General



## Essay **3.a – EPA’s**  **Legal Authority:**  **General Comments** 

**A. Comments**  **Q uestioning EPA’s**  **A uthority for**  **T his**  **R ulemaking** 
Some commenters suggested that the U.S. Environmental Protection Agency ( EPA ) is overreaching its authority through this rulemaking. EPA disagrees. The Clean Water Act ( CWA )— initially enacted by Congress as the Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92‒500) and subsequent amendments

— establishes the basi s for the current water quality standards ( WQS ) regulation and program (CWA s ections 101 and 303) and authorizes the EPA Administrator to prescribe such regulations as are necessary to carry out functions under the Act (CWA s ection 501(a)). Hence, EPA reli es on CWA sections 101, 303, and 501 as authority for promulgating this final rule. See the preamble to the final rule , the preamble to the proposed rule, and the remainder of these responses to comments for more discussion re garding why the final rule revisions are reasonably necessary.

With regard to the commenters alleging that this rule is being finalized w ithout public notification, EPA disagrees. In accordance with CWA s ection 501(a) and the rulemaking requirements outlined in
t he Administrative Procedure Act (APA) ( Title 5 of the U nited S tates Code ( U.S.C. ) s ection 553), EPA has provided multiple opportunities for public participation throughout th e rulemaking process. From 2008 through 2010, EPA held ongoing discussions with st ate and tribal partners and other stakeholders. The discussions addressed a wide range of issues from which EPA identified a subset of significant

areas of continuing concern. In 2010, EPA held listening sessions with the public, states
, and tribes to obta in feedback on this subset of issues. The agenda, background material, list of participants
, and the public transcripts of these listening sessions may be viewed at h ttp://water.epa.gov/lawsregs/lawsguidance/wqs_listening.cfm#records

. Following those sessions, EPA identified the six key areas included in the proposed rule. From September 4, 2013 to January 2, 2014, EPA provided a 120

- day public comment period to receiv e input on the contents of the proposed rule. The proposed rule and notification of this public comment period were published in the Federal Register (FR)

. In addition, during the 120

- day public comment period, EPA held two public webinars, a public meetin g, and tribal consultation to discuss the contents of the proposed rule and answer clarifying questions to help commenters to submit well

- informed comments. Over 150 organizations and individuals submitted comments on a range of issues in the proposed rule including an additional 2,500 letters from individuals associated with mass letter writing campaigns. EPA considered all input received during the public comment period and used it to inform the relevant sections of the final rule. Responses to the substance of the public comments are included throughout this response to comments document.



### B. Comments **S uggesting**  **T his**  **R ulemaking**  **U ndermines**  **S tates**  **’ and**  **A uthorized**  **T ribes’ C**  **lean W**  **ater A**  **ct R**  **ole to S**  **et W**  **ater Q**  **uality S**  **tandards**
With regard to the commenters suggesting that this rulemaking undermines the Congressional intent under the CWA for states and authorized tribes to have the primary responsibility to set WQS , EPA disagrees. With regard to the commenters suggesting that the proposed rule infringes on states’ and authorized tribes’ rights and flexibility to manage and protect their waters, EPA disagree s. With regard to the commenters suggesting that EPA’s proposed rule expands EPA’s authority for review and approval or disapp roval of state and tribal decisions, EPA disagrees. EPA acknowledges that th e CWA creates a partnership between states
, authorized tribes and EPA by assigning states and authorizedChapter 3 – Response Essays 3.a – Legal – Other General

tribes the primary role of adopting WQS (CWA s ections 101(b) and 303) and E PA an oversight role

. Under this partnership, EPA’s oversight role includes reviewing and approving or disapproving state and authorized tribal WQS (CWA s ection 303(c)) and promulgating federal WQS in situations where EPA disapproves a state’s or authorized tribe’s WQS under CWA s ections 303(c)(3) ( 303(c)(4)(A) ) or where the EPA Administrator makes a determination under CWA s ection 303(c)(4)(B) that a new or revised WQS is necessary ( unless the state or authorized tribe develops, and EPA approves, its own WQS first )

. Co nsistent with CWA s ection 501(a), EPA established the WQS regulation, which was last substantively revised in 1983. In that revision, EPA strengthened pr evious provisions that had been in place since 1977 and moved them to a new Title 40 of the C ode of F ederal R egulations (CFR) P art 131 (54 FR 51400, November 8, 1983). The resulting 1983 regulation described how the WQS required by the CWA were to be developed , including requirements for establishing designated uses, water quality criteria, antidegradation policies and implementation methods
, and general policies ; reviewing applicable WQS triennially ; and EPA’s review and approval or disapproval of WQS and promulgation of federal WQS. EPA disagrees tha t the final rule is undermining the partnership envisioned in the CWA between stat es, authorized tribes
, and EPA. This rulemaking provides clarity and transparency in six key areas of the regulation as a result of an extensive process that involved multiple opportunities for states, tribes, and members of the public to participate and make their views known (as discussed above)

. The final rule requirements are consistent with Congressional policy at CWA s ection 101(b) to preserve the primary responsibilities and rights of states and authorized tribes to prevent, reduce, and eliminate pollution ; plan the development and use of land and water resources ; and consult with the Administrator with respect to the exercise of the Adminis trator's authority

. With this final rule, states and authorized tribes continue in their primary role to review, adopt and revise applicable WQS
, and EPA continues in its oversight role to review and approve or disapprove new or revised state and authorized tribal WQS and to promulgate federal WQS pursuant to CWA s ection 303(c)(4). See the final rule requirements and the discussion of requirements and associated flexibilities in the preamble to the final rule. See also the

“ What is a New or Revised Water Quality Standard Under CWA 303(c)(3) Frequently Asked Questions ” (EPA

- 820 -F- 12

- 017, October 2012)
, which consolidate s EPA’s interpretation (informed by the CWA, EPA’s implementing regulation at 40 CFR Part 131, and relevant case l aw) of what constitutes a new or revised WQS that the Agency has the CWA s ection 303(c)(3) authority and duty to approve or disapprove ( http://water.epa.gov/scitech/swgu idance/standards/upload/cwa303faq.pdf ).

Some commenters suggested that EPA is preserving its ability to advise states and authorized tribes informally. Communication and coordination between EPA and states and authorized tribes are integral part s of maintaining the partnership envisioned by Congress in the CWA. Coordination early and often is key to ensuring that states and authorized tribes develop and adopt new or revised WQS that meet the requirements of the CWA and that EPA’s review of and act ion on state and authorized tribal WQS is timely. EPA acknowledges that states and authorized tribes are in the best position to develop WQS that accurately reflect the biological, chemical
, and physical conditions of their specific waters. EPA’s preferenc e is that states and authorized tribes develop and submit approvable WQS or submit approvable replacement WQS after EPA disapproval ; however, where necessary, EPA will use its CWA

s ection 303(c)(4) (A) authority to promulgat e federal replacement WQS in orde r to ensure CWA requirements are satisfied . With regard to the commenters implying that there is ‘guidance’ included in th e final rule, EPA disagrees. The regulatory revisions included in the final rule are requirements that states’ and authorized tribes’ WQS must meet. While EPA retained certain state and authorized tribal discretion and flexibilities in this rule, EPA will review state and authorized tribal WQS submitted following the effective date of this final rule and approve only if such WQS meet the requirements of the CWA and 40 CFR Part 131 (including the requirements finalized in this rulemaking). See section I.E of the preamble to the final rule for a discussion of how EPA will handle the transition period to the final ruleChapter 3 – Response Essays 3.a – Legal – Other General

requirements where the relevant state or authorized tribe is undergoing a WQS adoption or revision and ha s already held its public hearing(s) and the public comment period has closed before the effective date of this rule

. Some commenters suggested that EPA does not have the authority to approve or disapprove the process states use to review standards. While EPA does not have authority to approve or disapprove state processes per se, EPA does have and has exercised since 198 3 its authority to specify minimum levels of public outreach that are necessary when states and authorized tribes review and adopt WQS to ensure that members of the public can reasonably make their voices heard and that states and authorized tribes will co nsider those views when finalizing their WQS actions. See also section II.G in the preamble to the final rule.

One commenter alleged that this rule will “only inhibit and delay S t ate implementation of Clean Water Act regulatory processes” without any further explanation. As written , EPA does not understand the comment and cannot provide a response.

With regard to the commenter requesting that EPA maintain the states’ and authorized tribes’ rights to be more stringent than the federal government pursuant to CWA s ection 510, EPA notes that this rulemaking does not affect this provision of the CWA . Thus, consistent with CWA s ection 510 and/or pursuant to their own inherent authority in the case of authorized tribes, states and authorized tribes will continue to be able to adopt WQS that are more stringent than minimally required by the CWA unless their own state or tribal law prohibits doing so. See City of Albuquerque v. Browner , 97 F.3d 415, 421

- 23 (10 th Cir. 1996) (regarding inherent tribal sovereignty to ado pt WQS more stringent than minimum CWA requirements).

With regard to the commenters alleging that the rule expands EPA ’s review and approval to include WQS variances and permit compliance schedules (CS) themselves rather than their authorizing provisions, EPA disagrees. See EPA’s response s to codes 8.m and 9.e

.



### C **. Comments R**  **elated to the T**  **itle of the P**  **roposed R**  **ule**
Some commenters suggested that EPA improperly titled the proposed rule as a way to impose new requirements without public notification and shield the action from public scrutiny. Some commenters suggested that EPA withdraw the proposed action, re

- title it to more accurately represent the scope and importance of the proposed changes, and re

- propose it. EPA disagrees. EPA selected the term

“ cl arifications ” because, as discussed in the preamble to the proposed rule, the six key areas included in the rulemaking have been identified by states, tribes, stakeholders
, and/ or EPA as areas that will benefit from clarification and greater specificity an d result in more effective implementation of the WQS
program . The clarifications needed in the key areas are addressed and resolved most efficiently by clarifying, updating
, and revising the federal WQS regulation to improve the WQS regulation’s effectiven ess, improve water quality and protect high quality waters, increase transparency, and enhance opportunities for meaningful public engagement at the state, tribal
, and local levels

. The requirements included in the final rule provide a better

- defined pathw ay for restoring and maintaining the biological, chemical, and physical integrity of the n ation’s waters

. With regard to the commenters noting that the proposed rule is limited in scope and urging EPA to avoid any significant broadening in the substance or scope of the rule, EPA agrees. EPA proposed changes in six key areas
, and the final rule contains requirements in the same six key areas (as well as otherChapter 3 – Response Essays 3.a – Legal – Other General

housekeeping

- like changes in the “Other Changes” section)

. See also the final rule requirements and the discussion in the preamble to the final rule.

With regard to the commenters suggesting that EPA’s intent with this rulemaking is to restrict variability between states ’ and authorized tribes ’ processes and impose a uniform approach with less flexibility, EPA disagrees. EPA’s intent with this rulemaking is to provide targeted revisions to six key areas raised by states, tribes
, and stakeholders as areas of concern as well as to improve the WQS regulation’s effectiveness, improve water quality a nd protect high quality waters , increase transparency, and enhance opportunities for meaningful public engagement at the state, tribal
, and local levels

. Some commenters suggested that EPA address any WQS program inadequacies directly with the state or aut horized tribe of concern rather than promulgating this national rulemaking. EPA disagrees that it
must or should abandon finalizing this rulemaking in order to address inadequacies with a specific state or authorized tribe of concern. This final national rulemaking is reasonably necessary for the reasons described in the preamble to the final rule, specifically section I.C , and in these responses to comments

. Following publication of this final rule, EPA may work with specific states and authorized tribes t o ensure that their WQS programs meet the requirements in the final rule.



### D **. Other**
With regard to the comments related to EPA’s authority to require states and authorized tribes to adopt and identify antidegradation policies and implementation methods , see EPA’s response to code 7.m.

With regard to the comments related to the proposed change to section 131.5(a)(3), see EPA’s
response s to code s 7.f.i, 7.g.i, and 7.g.ii as well a s the discussion in section II.D in the preamble to the final rule.

With regard to the comment concerned that the proposed rule does not document why EPA has the authority to impose nonpoint source (NPS) standards, see EPA’s responses to codes 7.g.ii and 8.g.v.

With regard to the commenters suggesting that EPA’s use of the phrase “[g]eneral policies addressing implementation issues” in the public webinar on September 23, 2013
, was related to antidegradation implementation methods, EPA disagrees. EPA used this phrase during a factual statement of the components of WQS under the regulations that have been in place since 1983. The regulation at 40 CFR 131.13 includes a section on g eneral policies, which says “States may, at their discretion, include in their State standards, policies generally affecting their application and im plementation, such as mixing zones, low flows and variances. Such policies are subject to EPA review and approval.” Neither the proposed rule nor the final rule contemplated making changes to 40 CFR 131.13 . T hus
, this issue is outside the scope of this rul emaking. Even if within the scope of this rulemaking, EPA’s reference was to general policies under section 131.13, not antidegradation policies under section 131.12 , as suggested by the
commenter

. EPA acknowledges and appreciates the comments expressing s upport, without substantive comment, for the proposed changes to Administrator’s determination, compliance schedule authorizing provision (CSAP) , and triennial review . S ee EPA’s response s to codes 4.a, 9.a, and 6.g, respectively.

With regard to comments re lated to variance renewals and reviews on a triennial basis, see EPA’s responses to codes 8.i and 6.g.Chapter 3 – Response Essays 3.a – Legal – Other General

With regard to the comments related to the proposed change to section 131.5(a)(2), see EPA’s response to code 10.a as well as the discussion in section I I.G of the preamble to the final rule.

With regard to the commenters concerned with EPA’s use of the word “ensure” in the proposed regulations, see EPA’s response to code 10.a.

With regard to the comment alleging that the proposed rule is susceptible to unintended and undesirable consequences that may impede improvements to the effectiveness of water quality regulations, EPA’s final rule included changes based on the public comments received. See the preamble to the final rule as well as the final rule re quirements. Additionally, see EPA’s responses to specific topics.

With regard to the comment concerned that the proposed rule does not document how the current state management is insufficient, EPA notes that its rulemaking is national in scope; thus, it d oes not focus on specific state or authorized tribal WQS programs. For a description of the environmental benefits addressed by the final rule, see section I.C in the preamble to the final rule. For examples of WQS programmatic and legal challenges identif ied in the docket for the proposed rule, see document EPA

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. With regard to the comments suggesting that this rulemaking is unnecessary, see the discussion in section I.C of the preamble to the final rule.

With regard to the comments related to the potential impact, burden
, and cost of the final rule, see the discussion in section III of the preamble to the final rule and EPA’s Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule)

. With regard to the comment related to states’ and authorized tribes’ authority to allocate quantities of water pro vided in CWA section 101(g), neither the proposed rule nor the final rule contemplated regulatory chang es related to this section of the CWA or such authority of states and authorized tribes

. T hus
, this issue is outside the scope of this rulemaking.

With regard to the commenters alleging that the revisions will lead to increased litigation, see EPA’s responses to codes 4.e, 5.e, 5.k, 6.b, 6.f, 6.g, 6.h, 7.m, 8.m, and 9.e as well as the discussion in section II of the preamble to the final rule.