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-HQ-OQ-2010-0606

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 Questioning EPA’s Authority for This Rulemaking

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 basis for the current water quality standards (WQS) 

regulation and program (CWA sections 101 and 303) and authorizes the EPA Administrator to prescribe 

such regulations as are necessary to carry out functions under the Act (CWA section 501(a)). Hence, EPA 

relies 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 regarding why the final rule revisions are reasonably necessary.

With regard to the commenters alleging that this rule is being finalized without public notification, 

EPA disagrees. In accordance with CWA section 501(a) and the rulemaking requirements outlined in 

the Administrative Procedure Act (APA) (Title 5 of the United States Code (U.S.C.) section 553), EPA has 

provided multiple opportunities for public participation throughout the rulemaking process. From 

2008 through 2010, EPA held ongoing discussions with state 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 

obtain 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 

http://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 receive 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 

meeting, 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 Suggesting This Rulemaking Undermines States’ and Authorized 

Tribes’ Clean Water Act Role to Set Water Quality Standards

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 disagrees. With regard 

to the commenters suggesting that EPA’s proposed rule expands EPA’s authority for review and 

approval or disapproval of state and tribal decisions, EPA disagrees. EPA acknowledges that the CWA 

creates a partnership between states, authorized tribes and EPA by assigning states and authorized 

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tribes the primary role of adopting WQS (CWA sections 101(b) and 303) and EPA an oversight role. 

Under this partnership, EPA’s oversight role includes reviewing and approving or disapproving state and 

authorized tribal WQS (CWA section 303(c)) and promulgating federal WQS in situations where EPA 

disapproves a state’s or authorized tribe’s WQS under CWA sections 303(c)(3) (303(c)(4)(A)) or where 

the EPA Administrator makes a determination under CWA section 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). 

Consistent with CWA section 501(a), EPA established the WQS regulation, which was last substantively 

revised in 1983. In that revision, EPA strengthened previous provisions that had been in place since 1977 

and moved them to a new Title 40 of the Code of Federal Regulations (CFR) Part 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 that the final rule is undermining the partnership envisioned in the CWA between states, 

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 section 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 Administrator'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 section 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 consolidates EPA’s interpretation (informed by the CWA, 

EPA’s implementing regulation at 40 CFR Part 131, and relevant case law) of what constitutes a new or 

revised WQS that the Agency has the CWA section 303(c)(3) authority and duty to approve or

disapprove (http://water.epa.gov/scitech/swguidance/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 

parts 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 action 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 

preference 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 

section 303(c)(4)(A) authority to promulgate federal replacement WQS in order to ensure CWA 

requirements are satisfied. With regard to the commenters implying that there is ‘guidance’ included in 

the 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 rule 

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

requirements where the relevant state or authorized tribe is undergoing a WQS adoption or revision and

has 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 1983 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 consider 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 State 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 section 510, EPA notes that this 

rulemaking does not affect this provision of the CWA. Thus, consistent with CWA section 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 (10th Cir. 1996) (regarding inherent tribal sovereignty to adopt 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 responses to codes 8.m and 9.e. 

C. Comments Related to the Title of the Proposed Rule

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 

“clarifications” 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 and 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 

effectiveness, 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 pathway for restoring and maintaining 

the biological, chemical, and physical integrity of the nation’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 other 

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Chapter 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 and 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 

authorized 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 to 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 

responses to codes 7.f.i, 7.g.i, and 7.g.ii as well as 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 general policies, which says “States may, at their discretion, include 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.” Neither the proposed 

rule nor the final rule contemplated making changes to 40 CFR 131.13. Thus, this issue is outside the 

scope of this rulemaking. 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 support, without substantive comment, 

for the proposed changes to Administrator’s determination, compliance schedule authorizing provision

(CSAP), and triennial review. See EPA’s responses to codes 4.a, 9.a, and 6.g, respectively.

With regard to comments related to variance renewals and reviews on a triennial basis, see EPA’s 

responses to codes 8.i and 6.g.

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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 II.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 requirements. 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 does 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 identified in the docket for the proposed rule, see document 

EPA-HQ-OW-2010-0606-0077 at www.regulations.gov. 

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 provided in CWA section 101(g), neither the proposed rule nor the final rule contemplated 

regulatory changes related to this section of the CWA or such authority of states and authorized tribes. 

Thus, 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.

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