The September 14th Council of State Governments Bulletin on this matter outlines 6 potential 

changes in the Water Quality Standards regulation. It appears that these changes do not really to 

clarify or improve implementation of a Clean Water Act concept but rather redirect the decisionmaking authority from the States to EPA. 

1.) “Antidegradation: Changes would require that states' antidegradation implementation 

methods meet certain minimum standards, set by EPA, adopted into states' water quality 

standards and submitted to EPA for approval.”

 The current regulations specify the basic requirements for antidegradation 

policies in each state’s standards submittal. Specific details of the policies such as what 

is considered a de minimus change in water quality or how to measure significant 

degradation, however, are determined by each state. The proposed rule is clearly 

intended to replace the states’ discretion with EPA’s judgment. 

2.) “Administrator's Determination: There is currently no official process that the EPA 

Administrator utilizes to determine if a state needs new or revised water quality standards. 

Changes would require a signed determination document by the Administrator.”

 There are currently requirements for a triennial review of the standards which is a 

state process that is specifically designed to answer that question. EPA’s function is to 

determine whether any new or revised standard meets the purpose and intent of the Clean 

Water Act. It is not to determine whether a state “needs” new or revised standards. 

3.) “Uses: Current regulations do not specify what use, if any, must be put in place if a 

previous use under 101 (a)(2) under the Clean Water Act is removed following a Use 

Attainability Analysis. Changes would clarify that CWA goal uses are attainable unless 

otherwise demonstrated, and where a use specified in 101 (a)(2) is deemed unattainable, 

the Highest Attainable Use (HAU) closest to the goal must be adopted.”

There is no ambiguity in the Clean Water Act or the existing regulations concerning the 

designation of uses. The Act specifies goals in section 101(a)(2) and in section 

303(c)(2)(A) describes the factors a state must consider when designating uses. Again 

the purpose for this revision is to replace each state’s judgment with national 

requirements. The current circumstance of locally established use designations and 

standards is far superior to the EPA’s national use designations that will be the result of 

this proposed regulatory change.

4.) “Variances: There is a lack of clarity on variances, and new regulations would establish

expectation for implementation. For example, placing an expiration date on variances.”

Wyoming has recent experience with an EPA’s concept of variances that is completely 

indefensible. In its last triennial review, Wyoming adopted a provision in its standards 

that would allow a variance to e.coli criteria in circumstances where pathogen 

concentrations are natural in origin or otherwise unavoidable. This provision did not 

grant a variance on any waterbody or to any source of pollution but simply provided that 
one may be granted after consideration of site specific information. This provision of 

Wyoming’s standards was disapproved by EPA on the basis that “...it would allow for a 

change to the pathogen criteria without going through the standards setting process”. 

Clarifying how variances are to be determined is a good idea.

5.) “Triennial Review: Changes would clarify that states must solicit and consider public input 

in determining the scope of the review. Also, require that states consider if water quality criteria 

is still protective of designated uses, by taking into account new information such as 

recommendation from EPA.”

The existing regulation 40 CFR 131.20 already provides for ample public participation in the 

standards setting and revision process. This proposed change is closely related to item #2 above 

and is intended to provide EPA stronger position to dictate a federal agenda into a state decisionmaking process. States already take into account changing standards set by EPA. It is 

unnecessary.