CHAPTER 3 

Issue Category: EPA’s Economic Analysis

Pages 3-436 – 3-452

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 12.a – Econ – Gen Comments

Essay 12.a – Economics: General Comments

A. General

The U.S. Environmental Protection Agency (EPA) received many general comments about the economic 

impacts of the final Water Quality Standards (WQS) rule. These comments expressed concern about 

EPA’s fulfillment of its analytical requirements pertaining to the final rule, the additional burden to 

states and authorized tribes in administering the WQS programs during funding shortfalls, the set of cost 

categories included in and excluded from EPA’s economic analysis (EA) (including both direct costs to 

states and authorized tribes and potential indirect costs to dischargers), and the types and magnitude of 

benefits arising from implementation. This essay responds to these comments.

With regard to the comments related to the Regulatory Flexibility Act (RFA) and the Unfunded Mandates 

Reform Act (UMRA), see EPA’s response to code 13.a and sections IV.C and IV.D in the preamble to the 

final rule.

B. Regulatory Impact Analysis

Commenters said that the rule should have at least a proportionate benefit-cost ratio in order to justify 

the additional burden on states (to avoid wasting resources for minimal gain). EPA disagrees with the 

commenters’ conclusion that a rule is not justified if benefits are not estimated, and on the order of the 

costs estimated.

Executive Order 12866 (September 30, 1993) states: “Costs and benefits shall be understood to include 

both quantifiable measures (to the fullest extent that these can be usefully estimated) and qualitative 

measures of costs and benefits that are difficult to quantify, but nevertheless essential to consider. 

Further, in choosing among alternative regulatory approaches, agencies should select those approaches 

that maximize net benefits (including potential economic, environmental, public health and safety, and 

other advantages; distributive impacts; and equity), unless a statute requires another regulatory 

approach.” Executive Order 13563 (Jan. 18, 2011) also states: “[E]ach agency is directed to use the best 

available techniques to quantify anticipated present and future benefits and costs as accurately as 

possible. Where appropriate and permitted by law, each agency may consider (and discuss qualitatively) 

values that are difficult or impossible to quantify, including equity, human dignity, fairness, and 

distributive impacts.”). 

EPA meets these requirements by estimating the costs and benefits of the final rule to the fullest extent 

that they could be usefully estimated. EPA quantitatively estimated the burden and cost associated with 

the final rule to the extent they can be usefully estimated. EPA qualitatively estimated the benefits of 

the final rule, which represents the fullest extent to which they could be usefully estimated. EPA’s 

inability to quantitatively estimate benefits precludes a direct numerical comparison between costs and 

benefits. However, as specified in the above Executive Orders, EPA considered (and discussed

qualitatively) benefits that were difficult or impossible to quantify. The final rule advances the goals of 

the Clean Water Act (CWA) by improving states’ effectiveness in restoring the chemical, physical, and 

biological integrity of the nation’s waters. The final rule also ensures public transparency, improves 

information provision and use, and enhances state and tribal efficiency in administering WQS programs.

EPA believes the final rule maximizes these benefits while minimizing burden and cost.

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C. Burden

EPA received a number of comments asserting that the rule will create substantial new burden for states 

and authorized tribes, and that funding levels for state and tribal governments are not sufficient to meet 

the new requirements. Some commenters noted that states and authorized tribes are already facing 

funding shortfalls in administering burdensome existing WQS programs [including the use attainability 

analysis (UAA) process]. The commenters also stated that the rule would impose additional burden

during fragile economic times, which would result in potential job losses, decreased economic viability 

of coal and other industries, and decreased capability for industry to compete. Further, commenters 

state that the burdens associated with the rule are not justified by the potential benefits. Some 

commenters assert that large amounts of labor would be expended for intuitive or inconsequential 

findings (e.g., extensive analysis to demonstrate that ephemeral streams do not support aquatic life),

would divert limited resources away from substantive environmental issues, and that decisions would 

be based on technological considerations rather than on the potential benefits associated with an 

action. Commenters assert that state and tribal resources would be better allocated elsewhere.

EPA generally disagrees with these comments. As stated in the preamble to the final rule, the final rule 

advances the CWA goal to “restore and maintain the chemical, physical, and biological integrity of 

waters of the United States” and to “achieve, wherever attainable, an interim goal of water quality 

which provides for the protection and propagation of fish, shellfish, and wildlife and for recreation in 

and on the water” (CWA sections 101(a) and 101(a)(2)). The incremental data collection, analysis, and 

reporting requirements for state and tribal WQS programs are reasonably necessary for EPA to meet its 

oversight responsibility under the CWA and for the goals and requirements of the CWA to be achieved. 

By helping to avoid unnecessary and preventable water quality degradation, the final rule helps states to 

avoid costly cleanup and restoration efforts, thus minimizing their burden (and likely the burden of 

dischargers) in this respect over the long-term. The rule provides additional clarity and efficiency for 

states and authorized tribes when implementing their WQS programs, resulting in additional cost 

savings. EPA received and agrees with comments that agree with EPA’s conclusion that the cost of the 

rule may be partially offset by the reduction in regulatory uncertainty and consequent increase in 

overall program efficiency from the rule.

EPA estimates the administrative cost associated with the rule’s requirements to be approximately 

$2.7 million to $5.3 million in one-time cost (phased-in over time) and $5.2 million to $19.7 million 

annually after implementation, distributed across 96 states and authorized tribes with CWA (and in the 

case of tribes, EPA-approved) WQS programs. Because EPA made several conservative assumptions 

when developing these estimates, these costs may be overstated. 

EPA does not agree with commenters’ claim that these costs represent a substantial new burden for 

affected states or authorized tribes, or are likely to result in job losses, significant adverse industry 

impacts, or decreased industry competition. These commenters did not provide any data, information,

or analyses supporting such claims of job losses and decreased competition. On the other hand, poor 

water quality is a substantial environmental problem, and pollution prevention is less costly and more 

efficient than clean up and remediation.

EPA also does not agree with commenters’ assertion that the rule will require states and authorized 

tribes to make technology-based or very costly WQS determinations for minimal gains in water quality. 

The CWA and existing WQS regulations require criteria to be based on sound science. The rule does not 

change this requirement. In conditions of economic hardship (e.g., substantial and widespread economic 

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and social impacts), existing regulations already provide mechanisms to avoid such impacts. The 

additional clarity in this rule will help achieve and ensure attainment of WQS in surface waters. As stated 

above, EPA did not speculate as to potential future changes to state or authorized tribal regulatory 

requirements on dischargers. This is because each state and tribe is unique and dealing with different 

waters and circumstances, and the states and authorized tribes continue to maintain the WQS program 

flexibility they have under the existing federal regulations to meet their WQS in the most cost-effective 

manner.

D. Direct Costs

Several commenters stated that EPA greatly underestimates the cost and labor needed by states and 

authorized tribes to implement the rule, and suggested that EPA reach out to states and authorized 

tribes to assist in cost estimates.

In response to comments received on the proposed rule EA, EPA solicited additional input from states 

and authorized tribes, and the public. For the EA of the rule, EPA used the feedback from this process to 

revise labor estimates for several rule requirements. See the EA for the Final Rule and Preamble to the 

Final Rule.

In addition to this general comment, commenters asserted that EPA inappropriately excluded the 

following categories of cost to states and authorized tribes:

Determining Highest Attainable Use through Use Attainability Analyses. EPA did not exclude this cost 

category. EPA estimated the burden and cost for states and authorized tribes to determine the highest 

attainable use (HAU) in section 3.2.3 of the EA of the rule. Based on stakeholder input, EPA estimated 

that as much as 30 percent additional effort may be required to identify the HAU when conducting a 

UAA compared with the effort associated with conducting a UAA that does not identify the HAU. EPA 

estimated that 15 states and authorized tribes do not consistently identify the HAU when adopting new 

or revised WQS based on a required UAA. EPA estimated these costs to be approximately $7,400 to 

$14,700 annually for these 15 states and authorized tribes.

Conducting Use Attainability Analyses When Assigning Designated Uses to Waters (for Uses Not 

Specified in 101(a)(2)). Under existing WQS regulations (section 131.0(j)), states and authorized tribes 

already must perform a UAA when designating uses other than those specified in section 101(a)(2) of 

the CWA and/or when removing designated uses specified in CWA section 101(a)(2). As such, this is not 

an incremental burden or cost associated with this final rule.

Triennial Reviews of Water Quality Criteria. EPA did not exclude this cost category. EPA estimated the 

burden and cost for states and authorized tribes to implement the incremental triennial review 

requirements (specifically, to document an explanation in cases in which the state or authorized tribe 

chooses not to adopt new or revised criteria for any parameter for which EPA has published new or 

updated CWA section 304(a) criteria recommendations) in section 3.2.4 of the EA of the rule. EPA 

estimated the annual cost for this revision to be approximately $2,200 to $11,000 for each of the 96 

states and authorized tribes.

Additional Tier II Antidegradation Reviews. EPA did not exclude this cost category. EPA estimated the 

burden and cost for states to conduct additional Tier II antidegradation reviews in section 3.2.5.1 of the 

EA of the rule. Based on stakeholder input and available data on the ratio of antidegradation requests to 

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total dischargers, EPA estimated that states and authorized tribes will conduct an additional 258 

antidegradation reviews annually at a cost of approximately $1.7 million to $4.9 million per year. 

Conducting Alternatives Analyses for Lowering High Water Quality. EPA did not exclude this cost 

category from the EA of the rule. The final rule requires states to evaluate a range of practicable 

alternatives that prevent or lessen degradation of the proposed activity during each Tier II 

antidegradation review. For some states and authorized tribes, this may increase the level of effort 

needed to process Tier II reviews. Section 3.2.5 of the EA of the rule describes the burden and cost 

associated with this provision of the rule. EPA estimated that 461 antidegradation reviews may have 

more extensive requirements associated with them as a result of the final rule with a total annual cost 

of approximately $692,000 to $2,028,000.

Developing Methods for Implementing Antidegradation Policies. EPA did not exclude this cost 

category. The final rule requires states and authorized tribes to provide an opportunity for public 

involvement when deciding which waters will receive Tier II antidegradation protection when using a 

waterbody-by-waterbody approach. This requirement may represent an incremental cost for some 

states, and EPA described and quantified the burden and cost associated with this requirement in 

section 3.2.5 of the EA of the rule. EPA estimated the total one-time cost for each of 43 potentially 

affected states and authorized tribes to be approximately $7,400 to $14,700. Additionally, states and 

tribes may incur an incremental burden associated with the final rule requirement that they provide an 

opportunity for public involvement when developing antidegradation implementation methods. EPA 

estimated these costs to be approximately $700 to $1,500 annually for each of 43 potentially affected 

states and authorized tribes.

Providing Justification for the Need for Water Quality Standards Variances, and Providing 

Documentation of Actions Taken to Meet Variance Requirements. The final rule requires states and 

authorized tribes to provide documentation to EPA describing the justification for a WQS variance. 

Estimates of the burden and cost potentially associated with WQS variances (including submission 

requirements) are provided in section 3.2.6 of the EA of the final rule.

Developing Interim Numeric Criteria for a Water Quality Standards Variance. EPA did not exclude this 

cost category. Estimates of the burden and cost potentially associated with WQS variances (including 

identifying the highest attainable condition [HAC]) are provided in section 3.2.6 of the EA of the final 

rule. 

Identifying and Documenting Cost-Effective and Reasonable Best Management Practices for Nonpoint 

Sources (when Granting Water Quality Standards Variances). For WQS variances applicable to a water 

body or waterbody segment, the final rule requires states and authorized tribes to submit 

documentation to EPA identifying any cost-effective and reasonable best management practices (BMPs) 

for nonpoint source (NPS) controls related to the pollutant(s) or water quality parameter(s) and water 

body or waterbody segment that could be implemented to make progress towards attaining the 

underlying designated use and criterion. EPA did not exclude this cost from the EA of the rule, as 

described in section 3.2.6 of the EA of the rule. EPA estimated these additional documentation 

requirements may result in an additional annual cost of $15,200 to $36,800 distributed across 96 states 

and authorized tribes.

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State-Level Cost-Benefit Analyses. Commenters did not indicate what specific state-level cost-benefit 

analyses they envisioned themselves or EPA needing to perform. The final rule does not require such 

analyses. If states adopt their own cost-benefit analysis requirements, these are supplemental state 

requirements that exceed federal minimum requirements and are not an incremental burden or cost 

associated with this rule.

E. Indirect Costs

Some commenters expressed concern that EPA has not sufficiently explained the potential impacts of 

the proposed rule via a meaningful regulatory impact analysis, and that distinguishing between direct 

and indirect cost is arbitrary and meaningless. Commenters asserted that it is inappropriate for EPA to 

“screen out” indirect impacts, and that this results in artificially low estimates of the cost associated 

with implementation of the rule. Other commenters expressed concerns that the cost of the rule will 

“flow downhill” to the regulated community, with disproportionate impacts to some industries, and that 

dismissing these costs as “indirect” is inappropriate, arbitrary, and possibly unlawful. Some commenters 

asserted that the indirect compliance costs associated with implementation of the rule may be very 

substantial over the life of the required improvements. A commenter stated that after 40 years of CWA 

implementation, EPA should be able to estimate costs to the regulated community.

EPA disagrees with these comments.

The final rule addresses implementation of state and tribal WQS programs. Because some states and 

authorized tribes currently may not be implementing their WQS programs consistent with the final rule, 

EPA estimated the potential incremental burden and cost to those states and authorized tribes that may 

need to modify their WQS programs. However, EPA does not speculate as to potential requirements to 

dischargers that could result from states or authorized tribes revising their WQS programs, such as 

changes in National Pollutant Discharge Elimination System (NPDES) permit conditions (see below for 

further discussion). States and authorized tribes continue to maintain the WQS program flexibility they 

have under the existing federal regulations to meet WQS in the most cost-effective manner. The rule 

does not change the section 101(a) and section 303(c)(2) goals of the CWA nor the WQS needed to 

attain them. The clarifications and specificity regarding WQS program components may even result in 

cost savings as suggested by some commenters through increased efficiency of some state and tribal 

WQS programs.

These commenters imply that the final rule will necessarily result in more stringent pollution control 

requirements for the regulated community. In the 43 years since Congress enacted the CWA in 1972, 

states and authorized tribes have periodically reviewed and updated their WQS. Where those WQS have 

become more stringent, e.g., more stringent criteria updated to reflect the latest science, the regulated 

community may have seen their costs increase in terms of receiving more stringent effluent limits in 

their next NPDES permit. But where those WQS have become less stringent, e.g., a use removal or a 

variance, the regulated community may have seen their costs decrease in terms of receiving less 

stringent effluent limits in their next NPDES permit. These new regulatory requirements will not 

fundamentally change this framework. For example, under the final rule, as under the existing 

regulation, states do not have to adopt WQS variances, but if they do, they must comply with Title 40 of 

the Code of Federal Regulations (CFR) section 131.14. If the state asks the regulated community to bear 

some responsibility, i.e., cost, in making the demonstration necessary to justify the variance, that is the 

state’s choice, but that is no different than the current framework that has existed since 1972, and at 

least since 1983 (when EPA last finalized a comprehensive revision to its WQS regulation). The same is 

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true for designated use removals and antidegradation implementation. Any such costs borne by the 

regulated community are thus not attributable to this final rule, as the potential for such cost-bearing

has always been the case under the Act, subject to how the state or authorized tribe chooses to 

implement its WQS program. Finally, EPA does not speculate on the requirements that states and 

authorized tribes would require of dischargers as they implement their WQS programs due in part, as 

discussed above, to the wide range of flexibilities each state and tribe will choose from in order to 

incorporate the new requirements into their laws in the most efficient, cost-effective, reasonable 

manner possible. EPA’s Guidelines for Preparing Economic Analyses (2010) recommends assuming full 

compliance with existing regulatory requirements to ensure that provisions contained in statutes or 

policies preceding the regulatory action in question are appropriately addressed and measured. Thus, it 

would be inappropriate, as the commenters have suggested, for EPA to include indirect costs to 

dischargers in the EA for this final rule.

Compared to other regulatory actions, this rule does not promulgate specific water quality criteria, 

implementation procedures, or pollution control requirements. Instead, the final rule may, for example, 

result in incremental requirements for public involvement, review, and consideration of alternatives 

when implementing WQS to attain the goals and requirements of the CWA. These provisions do not 

directly translate into any specific incremental outcomes for dischargers, but could indirectly result in 

dischargers doing more (i.e., supplying states with information to inform UAAs, alternatives analyses, 

etc.). Also, the costs of attaining WQS in the water bodies themselves are baseline costs to existing WQS 

regulatory requirements and are not attributable to this rule (i.e., states, tribes, and dischargers were 

already responsible for these costs under the existing regulation, whether through permits, total 

maximum daily loads (TMDLs), or other mechanism in order to ensure that the water body attains 

WQS). 

Additionally, although some commenters expressed concerns about the scale of potential indirect costs, 

they did not provide sufficient detail or documentation that would have enabled EPA to conduct a 

substantive evaluation of or respond to their estimates of the burden. It is not sufficient to assert that 

industries will be financially unviable or unable to maintain profitability while protecting water quality 

without substantial supporting documentation and evidence.

With regard to the comments related to the discussion of minimum elements for antidegradation 

implementation methods, see also EPA’s response to code 7.g.ii.

F. Benefits

Some commenters asserted that the benefits of the rule arise from indirect impacts. Thus, EPA should 

either not attribute benefits to the rule because EPA does not estimate the costs of those indirect 

impacts, or EPA should estimate indirect costs. 

EPA disagrees with these comments. EPA does not quantitatively estimate the benefits of the final rule 

for the purpose of comparing them to costs. Instead, EPA narratively describes some of the incremental 

progress the public can expect toward the CWA goals “to restore and maintain the chemical, physical, 

and biological integrity of the Nation’s waters,” and to achieve “wherever attainable, an interim goal of 

water quality which provides for the protection and propagation of fish, shellfish, and wildlife and 

provides for recreation in and on the water.” For example, the benefits section of the EA describes the 

advantage of having clean drinking water sources instead of needing to treat water from polluted 

sources, describes how using clean agricultural water is preferable to using polluted water that can harm 

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crops, and explains how reducing sediment in surface waters is more favorable than dredging reservoirs 

or filtering for industrial use. The EA also describes how clean water can provide larger and more robust 

fish populations and enhance property values (although it does not quantitatively estimate them).

Finally, the EA discusses the benefits of clean water by calling attention to its general importance to 

human health, safe recreation, and social welfare. These narrative descriptions are meant to help the 

public better understand how the final rule helps to achieve the stated goals and objectives of the CWA. 

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Essay 12.b – Economics: Rulemaking Activities

A. General

Several commenters expressed concern that the U.S. Environmental Protection Agency (EPA) 

underestimates the state authorized tribal rulemaking burden of this rule. One commenter noted that 

EPA did not provide sufficient information about the sources of labor burden estimates for the 

incremental requirements. Some cited state-specific burdens and processes, asserting that EPA did not 

account for categories of costs that these states will incur. For example, one commenter stated that 

data collection in Alaska is likely to be more expensive than the costs that EPA estimated due to 

difficulties associated with remote locations and unique ecosystems. A commenter stated that in North 

Carolina the cost-benefit analysis that the state conducts during triennial reviews accounts for

numerous hours and many dollars.

EPA acknowledges these comments. In response to comments received on the economic analysis (EA)

for the proposed rule, EPA solicited additional input on labor burden from states and authorized tribes 

and EPA staff in the regional offices who have extensive experience with state and authorized tribal 

water quality standards (WQS) programs. EPA used the feedback from this process, together with public 

comments, to revise labor estimates for several rule requirements. These revisions reflect state-specific 

estimates (including from Alaska). Because EPA’s estimates are based on the input from a variety of 

knowledgeable stakeholders, the labor estimates EPA used in the EA of the final rule reflect a realistic

range of procedures and circumstances of state and authorized tribal programs.

One commenter asserts that they are “convinced that the proposed rule will have a significant impact 

on a substantial number of small entities like the District and that the proposed rule contains 

requirements that will significantly and/or uniquely affect small governments.” EPA disagrees with this 

commenter. The commenter provides no data or information supporting the assertion that the rule will 

have a significant impact on a substantial number of small entities. 

Some commenters asserted that EPA inappropriately excluded or underestimated the costs associated 

with the following provisions:

B. Antidegradation

Commenters assert that EPA underestimated the burden and cost associated with the rule because EPA

underestimated the difficulty of adopting antidegradation implementation methods into state or tribal 

rule. EPA disagrees with these comments. The final rule does not require states and authorized tribes to

adopt antidegradation implementation methods into their WQS regulations. However, the final rule

could potentially lead to incremental burden and cost associated with requiring states’ and authorized

tribes’ antidegradation implementation methods (whether or not those methods are adopted into state 

or tribal rule) to be consistent with their antidegradation policies and with section 131.12(a). Burden

and costs could also be associated with the requirement for states and authorized tribes to provide an

opportunity for public involvement during the development and any subsequent revisions of 

antidegradation implementation methods, and to make the methods available to the public.

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If a state or authorized tribe adopts antidegradation implementation methods as part of its WQS or 

other legally binding provisions, the state’s or authorized tribe’s own public participation requirements 

and Title 40 of the Code of Federal Regulations (CFR) Part 25 and section 131.20(b) of the federal 

regulation, will satisfy this requirement and there is no incremental burden or cost. For states and 

authorized tribes that do not adopt antidegradation implementation methods as part of their WQS or 

other legally binding provisions, there may be incremental burden and cost associated with providing an 

opportunity for public involvement. States and authorized tribes can use various mechanisms to provide 

such opportunities, including a public hearing, a public meeting, a public workshop, and different ways 

of engaging the public via the Internet, such as webinars and website postings. EPA obtained 

stakeholder feedback and revised the burden and cost estimate of the final rule’s antidegradation 

provision. EPA estimates this burden and cost in section 3.2.5 of the EA of the final rule.

Commenters also said EPA did not adequately document the economic impact of the rule because “the 

new requirements that EPA is imposing on state anti-degradation policies and implementation methods 

will require states to conduct extensive alternatives analyses when issuing NPDES permits to high quality 

waters. It is highly likely that the state will need permittees, such as SD1, to expend significant resources 

to collect information to support these analyses, including EPA’s proposed requirement to identify “nondegrading” and “minimally degrading practicable alternatives”. Of particular concern is the cost of

demonstrating these alternatives for storm water, which would seem to require complex monitoring, 

modeling and other analyses. It is also likely that such a determination will be subject to stakeholder 

scrutiny and potential litigation, which would result in additional costs to SD1.” EPA disagrees with these 

comments. EPA estimated the burden and cost associated with performing/evaluating more Tier 2 

antidegradation reviews because more water bodies may be receiving Tier 2 protection. EPA also 

estimated the burden and cost associated with performing/evaluating more extensive Tier 2 

antidegradation reviews because states and authorized tribes must evaluate a range of non-degrading 

and less degrading practicable alternatives and select one such alternative for implementation. See the 

preamble of the final rule and section of 3.2.5 of the EA of the final rule for more information.

C. Public Process

Commenters noted that the additional public scrutiny arising from the rule may also impose burden on 

states by opening them further to stakeholder scrutiny and potential litigation. EPA disagrees with the 

commenter that additional public scrutiny and potential litigation are a cost to states and authorized 

tribes associated with the final rule. To the contrary, the rule reduces litigation risk and associated costs 

by increasing transparency and public input, and ensuring states and authorized tribes address the 

issues of potential litigants while developing WQS. Litigation resulting from increased transparency and 

public input could arise from states and authorized tribes addressing or implementing WQS improperly, 

which is not a cost that is attributable to the rule. In addition, EPA estimated the incremental costs

associated with accommodating public input in rule provisions that require such input in the EA for the 

final rule.

D. Adopting Revised Variance Provisions 

A commenter asserted that EPA excluded the cost of revising state variance provisions from the EA. EPA 

did not exclude the burden and cost associated with revising variance provisions. EPA estimated cost 

and burden associated with states and authorized tribes needing to perform a WQS rulemaking for the 

purpose of revising laws related to the issuance of WQS variances (if the state or authorized tribe has 

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adopted such policies in state or tribal statute, rule, or other legally binding instrument) in section 3.2.1 

of the EA for the final rule.

E. Triennial Reviews

Commenters assert that additional triennial review requirements may require additional staff in WQS 

program offices and result in additional burden and costs. Existing WQS regulations require states and 

authorized tribes to conduct triennial reviews in which states and authorized tribes review all applicable 

WQS and, as appropriate, modify and adopt new or revised WQS. These existing requirements do not 

represent any incremental cost attributable to the final rule, as states and authorized tribes must

already be conducting triennial reviews pursuant to baseline requirements. The final rule does include a 

requirement that states and authorized tribes must provide an explanation when not adopting new or 

revised water quality criteria for parameters for which EPA has published new or updated Clean Water 

Act (CWA) section 304(a) criteria recommendations. EPA estimated burden and cost associated with the 

final triennial review requirements in section 3.2.4 of the EA of the final rule.

F. One-Time Costs

One commenter stated that one-time costs would be incurred by the states upfront rather than over 

time as EPA estimates. Implementation of the one-time components of the final rule is likely to vary 

among states and authorized tribes. EPA does not disagree with these comments. In the EA for the final 

rule, EPA reasonably expressed one-time costs on an annual basis only for comparison to other annual 

costs and to provide an estimate of overall annual cost of the entire rule. However, EPA estimates the 

final rule will require a single additional state or tribal rulemaking within a single state or tribal triennial 

review period. EPA does not believe a single rulemaking process within a three year period requires 

excessive state or tribal resources, and many states and tribes adopt multiple rules during a single 

rulemaking process and will likely take advantage of existing rulemaking processes to meet the 

requirements of the final rule. The final rule also requires states and authorized tribes that identify

waters for antidegradation protection on a water body-by-water body basis to provide an opportunity 

for public involvement on any decisions about whether Tier 2 antidegradation protections will be 

afforded to a water body and the factors considered when making those decisions. EPA estimates that 

such a single decision-making process requiring public involvement will occur as a single effort for all 

waters of the state or authorized tribe at an estimated one-time cost $7,400 – $14,700. EPA believes 

such one-time costs are not excessive.

EPA assumes that the state or authorized tribe does not incur further incremental burden or cost 

associated with revising those designations because such revisions will likely occur in association with 

National Pollutant Discharge Elimination System (NPDES) permit issuance or reissuance that already 

involves a public process. 

G. Additional Rulemaking 

A commenter expressed concern that the final rule would spur the states to conduct additional 

rulemaking beyond the requirements of the final rule. One commenter expressed concerns that states 

(e.g., Colorado) would amend regulations or initiate new rulemaking in light of EPA’s clarifications in the 

final rule beyond the requirements of the rule, leading to additional costs for dischargers. EPA disagrees

that such costs would be attributable to this final rule because such rulemakings would not be required 

by the final rule. 

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H. Other Costs and Burdens

Commenters asserted that the rule will have potentially substantial impacts to dischargers, and that EPA 

inappropriately excluded these costs or erroneously stated that these costs would not occur as a result 

of the rule. Some commenters noted that states often pass the costs of data collection on to dischargers 

when agency funding is not sufficient. Some commenters stated that the highest attainable use (HAU) 

requirement will lead to increased burden to dischargers, because it will result in more stringent criteria 

when states and authorized tribes issue use attainability analyses (UAAs). One commenter expressed 

concerns that the HAU requirement would result in increased focus on sensitive aquatic life, leading to 

far more restrictive criteria.

EPA disagrees with these comments. EPA estimates the burden and costs associated with more 

extensive UAAs, and a greater number and more extensive antidegradation reviews. EPA cannot

speculate on the extent to which a state or authorized tribe might pass those costs to dischargers.

With regard to the comments related to the Regulatory Flexibility Act (RFA) and the Unfunded Mandates 

Reform Act (UMRA), see EPA’s response to comment topic 13.a, as well as sections IV.C and IV.D in the 

preamble to the final rule.

With regard to the commenter suggesting that EPA’s EA for the proposed rule did not account for all 

costs to implement the proposed rule, see EPA’s response to comment topic 12.a, as well as section III in 

the preamble to the final rule and the Economic Analysis for the Water Quality Standards Regulatory 

Revisions (Final Rule) in the docket for this rulemaking.

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Essay 12.c – Economics: EPA’s Burdens and Costs

A. General

Several comments address the U.S. Environmental Protection Agency’s (EPA’s) estimates of the burdens 

and costs associated with the final rule. These comments express concerns about burden estimates for 

the rule generally, the costs of existing requirements, the rationale for estimating any costs, and EPA’s 

consideration of potentially more protective regulatory options. Commenters express concerns that EPA 

does not adequately consider the economic burden of the rule, and request that EPA consider 

independent cost estimates.

EPA disagrees with these comments. Although Executive Order 12866 requires agencies to assess the 

costs and benefits of regulatory actions, it does not require that that assessment be performed by 

parties outside the agency. Furthermore, the commenters do not provide any independent cost 

estimates for EPA’s consideration. To estimate the burden and cost to states and authorized tribes, EPA 

makes reasonable and often economically conservative assumptions regarding current compliance with 

requirements in the final rule, the activities and level of effort required to comply with the final rule, and 

the unit costs of those incremental efforts. EPA solicited and received information from states and 

authorized tribes and water quality standards (WQS) program staff with knowledge of state activities, 

and used this information to develop the estimates in the economic analysis (EA) of the final rule. This 

process has resulted in a reasonable, economically conservative, and defensible estimate of the burden 

and cost of the final rule.

One commenter noted that the costs of “existing chaos” are inappropriately excluded from the EA. 

However, the commenter does not describe nor provide any current costs or burdens its state or 

authorized tribe incurs under the current “existing chaos” and as such, EPA cannot respond further. 

The commenter also questioned why the regulations impose any costs if they are merely designed to be 

clarifications to existing WQS regulations. EPA agrees that there may be no costs for some states and 

authorized tribes due to either portions of or the entire final rule. However, in the interest of public 

transparency and being conservative, the EPA chose to be economically conservative (i.e., err on the 

side of overstating the potential for incremental programmatic activities), and used the best available 

information available to the Agency, including information received pursuant to its request for feedback

in the proposed rule to estimate the potential for incremental administrative burden and cost to states 

and authorized tribes. For example, prior to this rule, the regulation at Title 40 of the Code of Federal 

Regulations section 131.20 already required states and authorized tribes to review applicable WQS 

every three years (i.e., triennial reviews) and submit the results of the review to EPA. The final rule now

explicitly requires states and authorized tribes to document and submit an explanation for why they 

may have chosen to not adopt new or revised criteria for any parameters for which EPA has published 

new or updated Clean Water Act (CWA) section 304(a) criteria recommendations as part of the review.

Although some states and authorized tribes may already be documenting such decisions in their 

triennial reviews, EPA conservatively assumed in the EA of the final rule that no states or authorized 

tribes are doing so, i.e., that all states and authorized tribes will incur an increase in burden and cost 

associated with such requirement for documentation and submission of this explanation. 

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Chapter 3 – Response Essays 12.c – Econ – EPA’s B&C (Burdens and Costs) 

B. Water Quality Standards Variance Provisions 

Another commenter noted that the WQS variance provisions of the proposed rule would necessitate 

revisions to the Virginia WQS variance language, and would substantially increase the effort required to 

establish a WQS variance. As noted by the commenter, however, the addition of the language would not 

cause an undue burden. EPA appreciates this information, and agrees that the additional WQS variance 

provisions will not impose undue burdens on states or authorized tribes, in part because most of the 

requirements are baseline practices in most states, even if not explicitly required in EPA’s previous WQS

regulation. Nevertheless, EPA estimated cost and burden associated with states and authorized tribes 

needing to perform a WQS rulemaking for the purpose of revising laws related to the issuance of WQS 

variances (if the state or authorized tribe has adopted such policies in state or tribal statute, rule, or 

other legally binding instrument) in section 3.2.1 of the EA for the final rule. For discussion of EPA’s 

estimates of potential cost and burden related to the final WQS variance requirements, see section 3.2.6 

of the EA for the final rule. See also EPA’s response to code 12.b.

C. Benefits of Regulation

Finally, a commenter expressed concern that EPA did not consider the benefits of more protective 

regulations. EPA acknowledges the commenter’s concern, but disagrees with the comment that the 

Agency does not sufficiently consider a range of regulatory options before promulgating the final rule 

(see the preambles to the proposed and final rules for descriptions of the regulatory options that EPA 

considered). Furthermore, the commenter does not provide suggestions of more protective regulations 

EPA should have considered. In the process of developing the final rule, EPA considered comments and 

feedback from over 150 organizations and individuals, and the more than 2,500 additional letters from 

individuals associated with a mass letter writing campaign. EPA held numerous meetings with states, 

and responded to many concerns. The objective of the rule is to advance the CWA goals to “restore and 

maintain the chemical, physical, and biological integrity of waters of the United States” to “achieve, 

wherever attainable, an interim goal of water quality which provides for the protection and propagation 

of fish, shellfish, and wildlife and for recreation in and on the water” and to “protect the public health or 

welfare, enhance the quality of water and serve the purposes of” the Act (CWA sections 101(a), 

101(a)(2), and 303(c)(2)(A)). The final rule will advance these goals and improve protections of the 

nation’s waters by enhancing state and authorized tribal WQS program effectiveness. The rule will also 

ensure public transparency, improve information provision and use, and enhance state and tribal 

efficiency in administering WQS programs.

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Chapter 3 – Response Essays 12.d – Econ – Uncertainties 

Essay 12.d – Economics: Uncertainties in the Analysis

One commenter noted that, despite the U.S. Environmental Protection Agency’s (EPA’s) statement that 

it would be difficult and too speculative to estimate indirect costs to dischargers, EPA has the 

administrative tools needed to solicit data from the regulated community regarding these costs.

EPA generally disagrees with this comment. As commenters have pointed out in numerous instances in 

their comments on the proposed rule, the Clean Water Act (CWA) recognizes states (and authorized 

tribes) as having primary responsibility and authority for the activities necessary to achieve the water 

quality standards- (WQS-) related goals and requirements of the CWA. States and authorized tribes 

continue to maintain flexibilities they have historically been granted under the CWA and the federal 

regulations to help their dischargers (point sources and nonpoint sources (NPS), as applicable) meet 

CWA limits and their waters attain WQS in the most cost-effective manners possible. It is difficult for 

EPA to speculate as to how states and authorized tribes will choose to implement their WQS programs

in light of the existing and final regulatory requirements because, as commenters have pointed out in 

numerous instances in their comments on the proposed rule, each state and authorized tribe is 

different, operating with distinct water body types, dischargers, aquatic species, human activities, 

climate, topography, etc. Thus, EPA expects that the ways in which states and authorized tribes 

incorporate the final WQS requirements on top of the existing requirements will vary considerably, and 

that each state or authorized tribe will come up with the most efficient, cost-effective, reasonable, and 

targeted approach to meet CWA requirements as they apply within each state’s or authorized tribe’s 

jurisdiction. Furthermore the commenter does not provide any data or information to EPA that could 

help EPA identify requirements state and authorized tribes may enact, or their potential costs. See also 

EPA’s response to code 12.a for a discussion on indirect costs.

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Chapter 3 – Response Essays 12.e – Econ – Benefits

Essay 12.e – Economics: Benefits of Proposed Rule

A. General

Several commenters expressed concerns about benefits associated with the final rule, as well as the 

U.S. Environmental Protection Agency’s (EPA’s) characterization of the benefits. 

Some commenters expressed concerns that EPA did not quantify and monetize the benefits of clean 

water arising from the rule, and others noted that accurately and adequately quantifying the water 

quality benefits associated with water quality standards (WQS) rules is extremely challenging. EPA 

agrees that such an analysis is extremely challenging because of data and analytical limitations, and did 

not attempt to monetize benefits in the economic analysis (EA) of the final rule. Instead, EPA provides a 

narrative description of the benefits based on the anticipated more effective implementation of WQS 

programs. See also EPA’s response to code 12.a for a discussion of estimated benefits.

One commenter questioned whether the rule is the best expenditure of resources, and whether it 

makes the best “environmental sense” from a benefits perspective (specifically, whether the benefits 

associated with the rule represent the “best” benefit). EPA disagrees with the commenter’s implication 

that the benefits of the final rule were not part of the decision-making process when EPA developed the 

rule. The preamble of the final rule describes a variety of options that EPA considered with the goal of 

providing the greatest environmental benefit in the most cost-effective manner. The EA of the final rule

indicates that the burden and cost of the final rule are relatively low compared to the anticipated 

benefits. EPA concludes that the benefits of greater regulatory clarity and public transparency the final 

rule provides significantly outweigh the relatively low burden and cost to states and authorized tribes, 

and advance the goals of the Clean Water Act (CWA) in a cost-effective manner. Finally, the commenter 

does not provide any regulatory or non-regulatory alternatives that would provide a “better” benefit.

B. Comments on Triennial Reviews

Another commenter stated that a requirement for a complete review of the science behind state 

designated beneficial uses categories as a requirement of the triennial review is a waste of limited state 

resources, with little or no environmental benefit. However, the final rule does not incrementally 

require such a review. CWA section 303(c), and EPA’s implementing regulation prior to this final rule, 

already require states and authorized tribes, at least once every three years, to hold a public hearing for 

the purpose of reviewing their applicable WQS, not just a subset of WQS that the state or authorized 

tribe has identified as high priority. EPA acknowledges that some states and authorized tribes may

target specific WQS during an individual triennial review to balance resources and priorities. While the 

final rule does not affect states’ or authorized tribes’ discretion to attempt to identify such priority areas 

for action, states and authorized tribes must still, at a minimum, seek and consider public comment on 

all applicable WQS during a triennial review (i.e., a state or authorized tribe cannot ignore comments 

from the public on a WQS that is applicable but not within universe of WQS targeted by state or 

authorized tribe as priority area for action). The final rule clarifies that when conducting triennial 

reviews, states and authorized tribes must review all applicable WQS adopted into state or tribal law 

pursuant to sections 131.10–131.15 and any federally promulgated WQS for that state or authorized 

tribe. Applicable WQS specifically include designated uses (section 131.10), water quality criteria 

(section 131.11), antidegradation (section 131.12), general policies (that constitute WQS) (section

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Chapter 3 – Response Essays 12.e – Econ – Benefits

131.13), WQS variances (section 131.14), and provisions authorizing the use of schedules of compliance 

for water quality-based effluent limits (WQBELs) in National Pollutant Discharge Elimination System 

(NPDES) permits (section 131.15). See responses to comment category 6.b for more information.

C. Highest Attainable Use

Another commenter expressed concerns about the requirement that states adopt the highest attainable 

use (HAU) when implementing a use attainability analysis (UAA) to change a use specified in CWA 

section 303(c)(2)(A). The commenter stated that the burden associated with this requirement will be 

high, with minimal or zero benefits, and requested that EPA modify the provision to ensure that benefits 

outweigh the costs. In response, EPA notes that the final rule only requires that states must adopt the 

HAU when conducting a required UAA per section 131.10(j). The final rule does not require a UAA when 

a state removes or revises non-101(a)(2) uses or situations specified in section 131.10(k).

Nevertheless, EPA disagrees that the burdens associated with the HAU provision will greatly outweigh 

the benefits to water quality. The concept of HAU is fundamental to the WQS program. Adopting a use 

that is less than the HAU could result in the adoption of uses and water quality criteria that 

inappropriately allow lower water quality and could adversely affect aquatic ecosystems and the health 

of the public recreating in and on such waters. As noted above, the final rule provides that states and 

authorized tribes are not required to conduct a UAA whenever they wish to remove or revise a non101(a)(2) use, but must meet the requirements in section 131.10(a) (i.e., regarding their “use and 

value”). The final rule defines a non-101(a)(2) use at section 131.3(q) as: “any use unrelated to the 

protection and propagation of fish, shellfish, wildlife or recreation in or on the water.” The final rule 

revises section 131.10(a) to be explicit that where a state or authorized tribe is adopting new or revised 

designated uses other than the uses specified in section 101(a)(2) of the Act or sub-categories of such 

uses, or removing such designated uses, it must submit documentation justifying how its consideration 

of the use and value of water for those uses listed in section 131.10(a) appropriately supports the state’s 

or authorized tribe’s action. EPA refers to this documentation as a “use and value demonstration,” not a 

UAA. See the preamble of the final rule for more information on the “use and value demonstration” and 

EPA’s response to code 5.h.

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Chapter 3 – Response Essays 12.f – Econ – Other General

Essay 12.f – Economics: General Comments

A commenter suggested that the U.S. Environmental Protection Agency (EPA) update the Interim 

Economic Guidance for Water Quality Standards published March 1995 with respect to benchmarks for 

the private sector.

Updating the 1995 guidance is beyond the scope of the final rule, so EPA finds that this comment does 

not apply to the current rulemaking. EPA appreciates this comment and will consider it when deciding 

whether to supplement or revise the guidance in the future.

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