# CHAPTER 2 Issue Category: Introductory and General Information Page s 2-8 7 – 2- 1 09

Respo nse to Public Comments

Wa ter Quality Standard s Regulatory Revisions

Aug ust 2015

40 CFR P art 131 Docket #: EPA - HQ - OW - 2010 - 0606

This document is part of a larger document.Chapter 2 - Comment Documents Introductory and General Information 

# 2 - INTRODUCTORY AND GENERAL INFORMATION No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.


# 2.A - COMMENT PERIOD Comment ID 0116-A1.001.001
Author Name: Hale Michelle Organization: Alaska Department of Environmental Conservation The Alaska Department of Environmental Conservation (ADEC) is in the process of reviewing the U.S. Environmental Protection Agency's (EPA) proposed rule for Water Quality Standards Regulatory Clarifications published in the Federal Register on September 4, 2013 (Federal Register, Vol. 78, No. 171, pp. 54518-54546). ADEC requests an extension of the public comment period of at least 16 days due to the delays caused by the federal government shutdown from October 1 through October 16, 2013. At least two critical meeting to discuss the proposed rules were delayed as a result of the unavailability of EPA staff associated with the rulemaking - an October 1 teleconference with the Association of Clean Water Administrators and an October 23 public meeting. My staff will need additional time to work with EPA staff in order to clarify the intent and implementation issues associated with this critical water quality standards rulemaking. ADEC appreciates the opportunity to provide input on this important matter and will submit general and specific comments on this proposal in a subsequent letter.
Response For response to this comment, see the following response essay(s): 2.a


# 2.B - AFFECTED ENTITIES Comment ID 0117-A1.001.001
Author Name: Fredericks Michael Organization: Native Village of Chuathbaluk General Information

08/04/2015 05:01 PM EDT 2-87Chapter 2 - Comment Documents Introductory and General Information Does This Action Apply to Me? What good does these changes do for us as people? Letting go of past wrongs, we believe any change to WQS no matter what good intent there may be on behalf of the Federal, State or Tribal governments is vain, and may hinder people to live in forgiveness.
Response For response to this comment, see the following response essay(s): 2.b


# 2.C - HISTORY Comment ID 0117-A1.001.002
Author Name: Fredericks Michael Organization: Native Village of Chuathbaluk Background What is the Statutory and Regulatory History of the WQS Regulation and Program? All of us people seem to be suffering from statutory and regulatory histories concerning WQS it's regulation and this has affects (effects) on us in any community. How has the Public Provided EPA Input on the National WQS Program in the Past? What does it matter if the public in either tribal, state, or federal entities don't hear each other. In terms of input on the National WQS Program we are enslaved in the past, not able to deal with the present technical problems or even fulfilling previous laws with good intentions.
Response For response to this comment, see the following response essay(s):
2.c: Section A 

# Comment ID 0129-A2.001.003
Author Name: Steidel Robert

08/04/2015 05:01 PM EDT 2.c

2-88Chapter 2 - Comment Documents Introductory and General Information Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc. As an introductory matter, VAMWA notes EPA's summary of the history of the Water Quality Standards regulations and this proposed rulemaking. The basics of the regulations have been in place for approximately 30 years and have been modified only slightly since the adoption of the current Part 131 in 1983. Although EPA's Advance Notice of this proposal dates back to 1989 (in which the Agency identified over 130 aspects of the water quality standards program), the current proposal is relatively modest and identifies only six principal (proposed) changes.
Response For response to this comment, see the following response essay(s): 2.c 2.c: Section B 

# Comment ID 0189-A1.001.002
Author Name: Margaret Watkins Nancy Schuldt Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa Environmental Department Under the Federal Water Pollution Control Act Amendments of 1972, or the Clean Water Act ("CWA"), Congress made a commitment to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" (33 U.S.C. §1251(a)). To accomplish that, Congress established a national goal to eliminate discharges of pollutants into navigable waters by 1985. Congress also set the national goal of achieving levels of water quality necessary to protect all human contact uses of the Nation's waters and quality necessary for the protection of fish, shellfish and wildlife by 1983 (33 U.S.C. § 1251(a)(1) and (2)). Congress extended a national policy prohibiting the discharge of toxic pollutants in toxic amounts (33 U.S.C. § 1251(a)(3)). More than 40 years later, the most basic tenets of the CWA, that the Nation's waters shall be "fishable and swimmable" have not been fulfilled. Water continues to be used to "dispose" of a vast number of pollutants, including toxic pollutants in toxic amounts. In the National Rivers and Streams Assessment (Feb. 2013), EPA reports that greater than 50% of the waters assessed exhibited poor conditions, and only 20% were classified as "good." In EPA's summary of states' reported water quality data at http://ofmpub.epa.gov/waters10/attains_nation_cy.control , the agency reports that not only do states have a poor record of assessment, but of those waters assessed, 53% of rivers and streams, 68% of lakes, and 66% of bays/estuaries are failing to meet one or more water quality standards. Minnesota has the third highest number of impaired waters that have been assessed in the Nation. Reliance upon these degraded water resources for subsistence fishing, wild rice harvest, and other usufructory rights, has disproportionally affected the Bands.
Response

08/04/2015 05:01 PM EDT 2-89Chapter 2 - Comment Documents Introductory and General Information For response to this comment, see the following response essay(s): 2.c 2.c: Section C 

# Comment ID 0189-A1.001.004
Author Name: Margaret Watkins Nancy Schuldt Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa Environmental Department The CWA defines the process by which states and authorized tribes develop WQS as necessary to protect designated uses of each state's or reservation's waters. States and authorized tribes must designate uses, which are the uses that existed in 1974 or better if waters have improved, and standards which are protective of those uses; EPA must approve those designated uses and standards. If a state or authorized tribe fails to develop adequately protective standards, the CWA requires EPA to step in and develop the standards. States and authorized tribes are also required to adopt and implement antidegradation protections to ensure that those waters that are meeting WQS are not allowed to degrade, and that high quality waters - where existing water quality is better than standards - retain their high quality (40 C.F.R. § 131.12). A state or authorized tribe must, not less than once every three years, hold public hearings for the purpose of reviewing applicable WQS and, where appropriate and necessary to meeting the requirements of the CWA, modify and adopt new standards (33 U.S.C. §1313(c)(1)). Again, EPA is to review and approve any new or revised WQS as part of this Triennial Review process. Where a state or authorized tribe fails to modify or adopt standards to stay current withscientific and technical developments to ensure protection of their waters, EPA must step in and develop appropriatelyprotective standards for the state (33 U.S.C. § 1313(c)(4)). Through these processes, we accomplish the "forward motion" for water quality that is required by the CWA: establishing WQS that will dictate necessary clean-up and restoration, and establishing antidegradation requirements to protect what is already clean. The CWA also defines the process by which permitting serves a critical role in the implementation of these requirements. Discharges without a permit are prohibited, and permits must include limitations on discharges as necessary to ensure they will not cause or contribute to a violation of WQS. They must conform to effluent limitation guidelines, and they must conform to any Total Maximum Daily Load (TMDL) requirement that sets pollutant limits in order to meet WQS (40 C.F.R. § 122.44). Compliance plans or schedules may be utilized where appropriate to ensure that any new technologies necessary to meet the ever more stringent limits can be designed, built, and implemented in a timely fashion. EPA's oversight role is essential to the complete execution of the CWA, and its importance cannot be overstated. If EPA is not strong in its role, the entire structure of the CWA, and the promises that the Act is designed to fulfill, are in jeopardy. We look to the EPA as not only our partner in protecting vital water resources, but also our ‘backstop' against state WQS that are not sufficiently protective of tribal use of these shared resources.
Response

08/04/2015 05:01 PM EDT 2-90Chapter 2 - Comment Documents Introductory and General Information For response to this comment, see the following response essay(s): 2.c 2.c: Section A 2.c: Section D 4.e 

# Comment ID 0195-A1.001.002
Author Name: Norton Ken Organization: National Tribal Water Council Under the Federal Water Pollution Control Act Amendments of 1972, or the Clean Water Act (CWA), Congress made a commitment to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" (33 U.S.C. §1251(a)). To accomplish that, Congress established a national goal to eliminate discharges of pollutants into navigable waters by 1985. Congress also set the national goal of achieving levels of water quality necessary to protect all human contact uses of the Nation's waters and quality necessary for the protection of fish, shellfish and wildlife by 1983 (33 U.S.C. § 1251(a)(1) and (2)). Congress extended a national policy prohibiting the discharge of toxic pollutants in toxic amounts (33 U.S.C. § 1251(a) (3)). More than 40 years later, those commitments have not been fully met. In the National Rivers and Streams Assessment (Feb. 2013), EPA reports that greater than 50% of the waters assessed exhibited poor conditions, and only 20% were classified as "good." In EPA's summary of states' reported water quality data at http://ofmpub.epa.gov/waters10/attains_nation_cy.control , the agency reports that not only do states have a poor record of assessment, but of those waters assessed, 53% of rivers and streams, 68% of lakes, and 66% of bays/estuaries are failing to meet one or more water quality standards. Discharges of pollutants into our nation's water clearly have not been eliminated. Our nation still uses its waters as disposal systems for a vast number of pollutants, including toxic pollutants in toxic amounts, and while there has been improvement, many waters still fail to meet basic requirements for being "fishable and swimmable." Tribal communities have been disproportionally affected by these degraded water resources, as they rely upon them for subsistence and maintaining traditional lifeways.
Response For response to this comment, see the following response essay(s): 2.c 2.c: Section C 

# Comment ID 0195-A1.001.005
Author Name: Norton Ken

08/04/2015 05:01 PM EDT 2-91Chapter 2 - Comment Documents Introductory and General Information Organization: National Tribal Water Council The CWA defines the process by which states and authorized tribes develop WQS as necessary to protect designated uses of each state's or reservation's waters. States and authorized tribes must designate uses, which are the uses that existed in 1974 or better if waters have improved, and standards which are protective of those uses; EPA must approve those designated uses and standards. If a state or authorized tribe fails to develop adequately protective standards, the CWA requires EPA to step in and develop the standards. States and authorized tribes are also required to adopt and implement antidegradation protections to ensure that those waters that are meeting WQS are not allowed to degrade, and that high quality waters - where existing water quality is better than standards - retain their high quality (40 C.F.R. § 131.12). A state or authorized tribe must, not less than once every three years, hold public hearings for the purpose of reviewing applicable WQS and, where appropriate and necessary to meeting the requirements of the CWA, modify and adopt new standards (33 U.S.C. §1313(c)(1)). Again, EPA is to review and approve any new or revised WQS as part of this Triennial Review process. Where a state or authorized tribe fails to modify or adopt standards to stay current withscientific and technical developments to ensure protection of their waters, EPA must step in and develop appropriatelyprotective standards for the state (33 U.S.C. § 1313(c) (4)). Through these processes, we accomplish the "forward motion" for water quality that is required by the CWA: establishing WQS that will dictate necessary clean-up and restoration, and establishing antidegradation requirements to protect what is already clean. The CWA also defines the process by which permitting serves a critical role in the implementation of these requirements. Discharges without a permit are prohibited, and permits must include limitations on discharges as necessary to ensure they will not cause or contribute to a violation of WQS. They must conform to effluent limitation guidelines, and they must conform to any Total Maximum Daily Load (TMDL) requirement that sets pollutant limits in order to meet WQS (40 C.F.R. § 122.44). Compliance plans or schedules may be utilized where appropriate to ensure that any new technologies necessary to meet the ever more stringent limits can be designed, built, and implemented in a timely fashion. EPA's oversight role is essential to the complete execution of the CWA, and its importance cannot be overstated. If EPA is not strong in its role, the entire structure of the CWA, and the promises that the Act is designed to fulfill, are in jeopardy. Tribes look to the EPA as not only our partner in protecting vital water resources, but also our ‘backstop' against state WQS that are not sufficiently protective of tribal use of these shared resources.
Response For response to this comment, see the following response essay(s): 2.c 2.c: Section A 2.c: Section D 4.e 

# Comment ID 0197-A1.001.002
Author Name: Garrison Naoh

08/04/2015 05:01 PM EDT 2-92Chapter 2 - Comment Documents Introductory and General Information Organization: Natural Resources Defense Council INTRODUCTION In 1972, Congress enacted the Clean Water Act to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (33 U.S.C. § 1251(a).) The Act has the important goal of eliminating the discharge of pollutants into navigable waters by 1985, with an interim goal of achieving fishable and swimmable conditions, wherever possible, by 1983. (33 U.S.C. § 1251(a)(1)-(2).) Congress has additionally established national policy prohibiting the discharge of toxic pollutants in toxic amounts. (33 U.S.C. §1251(a)(3)). Despite these goals, over half of the nation's rivers and streams have been identified by EPA as being in "poor condition."[FN2] Similarly, EPA's summary of state reported data shows that 53 percent of assessed river and stream miles, 66 percent of assessed lakes, and 66 percent of assessed bays and estuaries nationwide fail to meet at least one water quality standard.[FN3] The Clean Water Act requires each state to adopt WQS for all waters within its boundaries and to submit them to the U.S. Environmental Protection Agency ("EPA") for approval. (33 U.S.C. §§ 1311(b)(1)(C), 1313.) WQS include maximum permissible pollutant levels that must be sufficiently stringent to protect public health and enhance water quality, consistent with the uses for which the water bodies have been designated. (33 U.S.C. § 1313(c)(2)(A).) Where states fail to develop adequately-protective standards, EPA is tasked under the Clean Water Act with developing the standards in lieu of the state. (33 U.S.C. § 1313(c)(3), (4).) The Clean Water Act additionally requires states to implement an antidegradation policy that mandates that existing water quality in navigable waters be maintained unless degradation is justified by specific findings. (See, 40 C.F.R. § 131.12(a)(1).) Finally, at least once every three years, states are required to hold public hearings to review applicable water quality standards and to, where appropriate, modify existing standards or adopt new standards. (33 U.S.C. § 1313(c)(1).) [FN2] EPA (February 2013) Draft National Rivers and Streams Assessment 2008-2009, EPA/841/D-13/001, available at http://water.epa.gov/type/rsl/monitoring/riverssurvey/upload/NRSA0809_Report_Final_508Compliant_130228.pdf

. [FN3] EPA, National Summary of State Information, available at http://ofmpub.epa.gov/waters10/attains_nation_cy.control

.
Response For response to this comment, see the following response essay(s): 2.c 2.c: Section A 2.c: Section C 

# Comment ID 0198-A1.001.002
Author Name: Card Bethany Organization: Massachusetts Department of Environmental Protection

08/04/2015 05:01 PM EDT 2-93Chapter 2 - Comment Documents Introductory and General Information EPA is proposing revisions to its Water Quality Standards (WQS) regulations, which support implementation of the Clean Water Act (CWA). In proposing the revisions, EPA has explained that its goal is to improve the regulations' effectiveness in restoring and maintaining 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 for recreation in and on the water'' (CWA §101(a) and 101(a)(2)). According to EPA, over the last 30, years many policy and technical issues have recurred in state standards reviews, stakeholder comments, and litigation. EPA believes that its proposed updates to the WQS regulations would provide clarity and, ultimately, more effective implementation. Generally, MassDEP agrees with many of the proposed changes.
Response For response to this comment, see the following response essay(s): 2.c 2.c: Section A 2.c: Section C 1.a 

# Comment ID 0222-A1.001.002
Author Name: Modeer David Organization: Western Urban Water Coalition BACKGROUND The Clean Water Act (CWA) established the basic structure for regulating pollutant discharges into the waters of the United States. In the Act, Congress established the national objective 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 for recreation in and on the water.'' 33 U.S.C. § 1251(a). The CWA is the basis for the existing WQS regulations. Section 301 of the Act provides that ‘‘the discharge of any pollutant by any person shall be unlawful'' except in compliance with specific requirements of Title III and IV of the Act, and ‘‘any more stringent limitation, including those necessary to meet WQS, treatment standards or schedule of compliance established pursuant to any State law or regulation.'' Id. § 1311.
Response For response to this comment, see the following response essay(s): 2.c 2.c: Section A

08/04/2015 05:01 PM EDT 2-94Chapter 2 - Comment Documents Introductory and General Information
2.c: Section C 

# Comment ID 0256-A2.001.002
Author Name: Shepherd Hal Organization: The Center for Water Advocacy Since the passage of the Clean Water Act in 1972, the United States has made great progress in cleaning up our nation's waters. The law historically has protected the nation's lakes, rivers, streams and wetlands from unregulated pollution and destruction. Unfortunately today, many water bodies are being denied the Act's protections against pollution and destruction. Polluters argue that Supreme Court decisions from 2001 and 2006 mean that the law's safeguards are only available for "navigable" water bodies (or for waters that are significantly linked to such water bodies). They claim that the Act no longer protects numerous wetlands, streams, rivers, lakes and other waters that have historically been covered. Ambiguous federal agency policy directives have helped these attacks. For years Alaskan Native tribal communities and the public have advocated for legislation to restore protections to critical waters such as headwater and seasonal streams and "isolated" wetlands. Finally, after years of inaction by Congress, the EPA and Army Corps of Engineers have stepped up and proposed a rulemaking to enhance protection of the chemical, physical and biological integrity of our nation's waters by clarifying Clean Water Act jurisdiction.
Response For response to this comment, see the following response essay(s): 2.c 2.c: Section E 

# Comment ID 0256-A2.001.004
Author Name: Shepherd Hal Organization: The Center for Water Advocacy I. Legal History of Implementing the CWA Congress enacted the Clean Water Act (CWA) "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," and the Proposed Rule will help the agencies implement specific provisions of the Act to achieve this objective. The CWA has a number of programs designed to protect and restore the Nation's waters which was originally intended to provide effective protection from pollution for waterbodies across the country supply drinking water, filter pollutants, provide water for irrigation, and support hunting and fishing, outdoor recreation, and tourism.

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Beginning in 2001, however, the U.S. Supreme Court effectively gutted the CWA and it's ability to protect water quality when it ruled in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), that certain isolated, intrastate ponds were not protected by the Act, even though the Justice Department argued that the Act covers water bodies used as migratory bird habitat. By suggesting that Congress' use of the term "navigable waters" in the Act, indicated an intent to restrict protections to waterways somehow related to navigable ones, the court fundamentally ignored the fact that Congress defined "navigable waters" broadly to mean the "waters of the United States," and, similarly, brushed aside its own prior decision saying that the word "navigable" was of "limited import." The Supreme Court continued it's assault on the CWA, in 2006 in Rapanos v. United States (Rapanos), when the court revisited the issue of which waters are covered by the law, in this case, involving wetlands near to tributaries of traditionally navigable waters. Rather than providing clarity after the conflicting conclusions of SWANCC, however, the Supreme Court created further confusion by failing to reach any majority decision in several opinions with fundamentally contrary rationales. Further, a four-member plurality would protect only "relatively permanent waters" connected to traditionally navigable water bodies, as well as wetlands with a "continuous surface connection" to other protected waters. On the other hand Justice Kennedy's concurring opinion, in Rapanos, concluded that "waters of the United States" included wetlands that had a significant nexus to traditional navigable waters, "if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.'" Id. at 780. The four justices who signed on to Justice Stevens' opinion, however, would have upheld jurisdiction under the agencies' existing regulations and stated that they would uphold jurisdiction under either the plurality or Justice Kennedy's opinion. Id. at 810. To make matters worse, following both SWANCC and Rapanos, the Bush administration issued new policies instructing field staff how to apply the Supreme Court decisions. These documents made it significantly harder to protect various water bodies, including tributary streams, rivers, and wetlands. In 2003, following SWANCC, the administration essentially removed protection for non-navigable "isolated" water bodies, including prairie pothole wetlands, playa lakes, and vernal pools that are invaluable for wildlife habitat, groundwater recharge, and flood control. These policies were so bad that the U.S. House of Representatives specifically voted to reject the use of them, although they remain in effect to this day. In 2007, the EPA and Corps released a second Report document purporting to instruct agency officials on how to implement Rapanos which is even more confusing and less protective than Rapanos itself. In addition to the isolated waters written off by the SWANCC Report, the Rapanos Report puts intermittent and ephemeral streams and many adjacent wetlands in danger of losing protections, a result not required by either court decision. In particular, the Rapanos Report strips categorical protections for tributaries of larger waters; presumes certain types of ephemeral streams and waters are no longer protected; creates a binding, unpredictable, and time and resource intensive case-by-case process for determining what is protected; and ignores science to interpret important and relatively protective aspects of Justice Kennedy's approach in a manner that makes them nearly meaningless. The agencies revised the Rapanos Report in December 2008 and made it even less protective, wrongly interpreting long standing case law to make it more difficult to determine whether a water is "traditionally navigable," a determination that impacts protection of both specific waters and waters in the upper reaches of watersheds.

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As illustrated by the EPA's estimate that approximately 20 percent of the over 100 million acres of wetlands in the continental U.S. are geographically "isolated," and that the agencies stopped protecting isolated, non-navigable intrastate water ways after SWANCC, the impact of SWANCC, Rapanos, and federal agency directives have had on our water resources is alarming. Additionally, post-Rapanos CWA interpretations directly threaten about 60 percent of the stream miles in the continental U.S. which do not flow year-round. These waters not only serve as valuable wildlife habitat, store flood water, return water to aquifers, and filter pollutants, but they also provide some or all of the supply for drinking water systems serving roughly 111 million Americans.
Response For response to this comment, see the following response essay(s): 2.c 2.c: Section E 

# Comment ID 0257-A1.001.002
Author Name: Harpole Chad Organization: Kentucky Chamber of Commerce General Comments As EPA notes in the preamble to the Proposed Rule, the core of the current Water Quality Standards Regulations at 40 CFR Part 131 has been in place since 1983. The current standards provide general guidance to the states for developing Water Quality Standards as authorized by Section 303(c) of the Clean Water Act and for EPA review and approval of those standards.

Response For response to this comment, see the following response essay(s): 2.c 2.c: Section A 

# Comment ID 0268-A2.001.002
Author Name: Bell Nina Organization: Northwest Environmental Advocates

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I. BACKGROUND The discussion in the background section of the Fed. Reg. notice consistently omits reference to changes Congress made to the Clean Water Act in the 1987 amendments, the omission of which conveniently supports EPA's failure to address these provisions in its proposed rules. As EPA points out, it has only modified the water quality standardsregulations twice since 1983, first with regard to tribes' participation in the standards program and second in the socalled Alaska Rule. With the exception of EPA's promulgation of, and subsequent slight modifications to, the National Toxics Rule (NTR), EPA has never modified its rules to address the new section 303(c)(2)(B) which reads as follows: Whenever a State reviews water quality standards pursuant to paragraph (1) of this subsection, or revises or adopts new standards pursuant to this paragraph, such State shall adopt criteria for all toxic pollutants listed pursuant to section 1317(a)(1) of this Act for which criteria have been published under section 1314(a), the discharge or presence of which in the affected waters could reasonable be expected to interfere with those designated uses adopted by the State, as necessary to support such designated uses. Such criteria shall be specific numerical criteria for such toxic pollutants. Where such numerical criteria are not available, whenever a State reviews water quality standards pursuant to paragraph (1), or revises or adopts new standards pursuant to this paragraph, such State shall adopt criteria based on biological monitoring or assessment methods consistent with information published pursuant to section 1314(a)(8). Nothing in this section shall be construed to limit or delay the use of effluent limitations or other permit conditions based on or involving biological monitoring or assessment methods or previously adopted numerical criteria. Peculiarly, EPA's notice does not mention section 303(c)(2)(B) in its list of five statutory requirements at Fed. Reg. 54519-54520 nor in any of the rest of the statutory and regulatory background discussion set out in the preamble. This failure to mention an entire statutory provision is likely because EPA would prefer to pretend that it simply does not exist because for the most part states ignore the provision and EPA does not hold states to meeting it with the sole exception of its action in adopting the NTR in 1992. In point of fact, the requirements of that section do exist, and the problem is that neither EPA's current regulations nor its proposed regulations incorporate this "new" over-25 year old provision. EPA should revise its background section of the preamble to include a discussion of this provision and it must update its regulations to ensure that states, and EPA itself, attend to these statutory requirements. Instead, EPA continues as if oblivious to the requirements, not having updated the NTR since it was adopted in 1992 to reflect new 304(a) recommended criteria or added states that have continued to ignore its requirements. Washington state's aquatic life criteria for toxics are one example. See, e.g. Northwest Environmental Advocates' Petition for Rulemaking Under the Clean Water Act: Water Quality Criteria for Toxics in the State of Washington (Oct. 28, 2013) [0268-A3]. In light of EPA's and states' long-term failures since 1992, it is unconscionable that EPA would ignore section 303(c)(2)(B) in its revised regulations. We do not understand how addressing this failure is not a high priority issue needed to ensure "effective implementation" of the Clean Water Act (CWA), the justification EPA uses to support its regulatory proposals in Section C of the preamble. Fed Reg. at 54521.
Response For response to this comment, see the following response essay(s):
2.c: Section F

08/04/2015 05:01 PM EDT 2.c

2-98Chapter 2 - Comment Documents Introductory and General Information 

# Comment ID 0272-A2.001.002
Author Name: Jennifer Chavez Janette Brimmer Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 INTRODUCTION Over forty years ago, Congress made the promise to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. §1251(a). To that end, Congress established a national goal to eliminate discharges of pollutants into navigable waters by 1985. Congress also set the national goal of achieving levels of water quality necessary to protect all human contact uses of the Nation's waters and quality necessary for the protection of fish, shellfish and wildlife by 1983. 33 U.S.C. § 1251(a)(1) and (2). Congress further established national policy prohibiting the discharge of toxic pollutants in toxic amounts. 33 U.S.C. § 1251(a)(3). Unfortunately, those promises and goals still await fulfillment. See, e.g., EPA, Nat'l Rivers and Streams Assessment (Feb. 2013) where EPA reports that well over 50% of the waters assessed exhibited poor conditions and only 20% were classified as "good." The results by region were even more disappointing with 62% of the waters in the east classified as poor and 58% in the plains states. See also, EPA summary of states' reported water quality data at http://ofmpub.epa.gov/waters10/attains_nation_cy.control , showing that states have a poor record of assessment, but of the waters assessed, 53% of assessed rivers and streams, 68% of assessed lakes, and 66% of assessed bays/estuaries are failing to meet one or more water quality standards. Discharges of pollutants into our nation's water have not been eliminated. Almost thirty years after the stated deadline, the nation still uses its waters as disposal sites for a vast number of pollutants, including toxic pollutants in toxic amounts, and while there has been improvement, many waters still fail to meet basic requirements for being "fishable and swimmable."
Response For response to this comment, see the following response essay(s): 2.c 2.c: Section C 

# Comment ID 0272-A2.001.004
Author Name: Jennifer Chavez Janette Brimmer Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 STRUCTURE AND REQUIREMENTS FOR WATER QUALITY STANDARDS UNDER THE CLEAN WATER ACT Development and implementation of WQS are critical components of the Clean Water Act, with shared roles for states and EPA. The Clean Water Act imposes an initial obligation on states to develop water quality standards as necessary to protect designated uses of each state's waters. States must designate uses, which are the uses that existed in 1974

08/04/2015 05:01 PM EDT 2-99Chapter 2 - Comment Documents Introductory and General Information or better if waters have improved. Those standards are to be submitted to EPA for approval. If a state fails to develop adequately-protective standards, the Clean Water Act requires EPA to step in and develop the standards. 33 U.S.C. § 1313(c)(3) and (4). States are also required to adopt and implement meaningful antidegradation protections to ensure that waters that are meeting water quality standards are not allowed to degrade and that high quality waters (water quality that is better than standards) retain their high quality. 40 C.F.R. § 131.12. A state must, not less than once every three years, hold public hearings for the purpose of reviewing applicable water quality standard and, where appropriate and necessary to meeting the requirements of the Clean Water Act, modify and adopt new standards. 33 U.S.C. §1313(c)(1). ("Triennial Review"). Again, EPA is to review and approve water quality standards as part of the Triennial Review. Where a state fails to modify or adopt standards that stay abreast of scientific and technical developments and as necessary to ensure protection of waters, EPA must and can step in and develop appropriately-protective standards for the state. 33 U.S.C. § 1313(c)(4). With these requirements, one sees the "forward motion" for water quality that is dictated by the Clean Water Act: set standards for quality that will dictate cleanup and set antidegradation requirements to preserve what is already clean. The Clean Water Act then dictates that permitting will serve an important role in implementation of these requirements and maintaining forward motion by being the tool for eliminating discharges of pollutants. Discharges without a permit are prohibited. Permits must include limitations on discharges as necessary to ensure they will not cause or contribute to a violation of water quality standards, they must conform to effluent limitation guidelines, and they must conform to any Total Maximum Daily Load requirement that sets pollutant limits in order to meet water quality standards. 40 C.F.R. § 122.44. Compliance plans may be utilized where necessary to ensure that new technologies that may be necessary to meet the ever more stringent limits can be designed, built, and implemented in a timely fashion. As is plain from the structure of the Clean Water Act, EPA's oversight role is necessary to the full functioning of the Act and its importance cannot be overstated. If EPA is not strong in its role, the entire structure of the Clean Water Act, and the promises that the Act is designed to fulfill, are in jeopardy. It is with that foundation, and those concerns, that the Water Protection Groups submit these comments.
Response For response to this comment, see the following response essay(s): 2.c 2.c: Section D 4.e


# 2.D - PUBLIC EFFORTS Comment ID 0191-A2.001.001
Author Name: Hirst Barbara Organization: New Jersey Department of Environmental Protection

08/04/2015 05:01 PM EDT 2-100Chapter 2 - Comment Documents Introductory and General Information Thank you for the opportunity to respond to the Water Quality Standards Regulatory Clarifications; Proposed Rule: Docket ID No. EPA-HQ-OW-2010-0606 (proposed WQS). New Jersey Department of Environmental Protection (NJDEP) appreciates EPA providing clarifications at several webinars, conference calls and public meetings. The webinars and the interactive workshop organized by Association of Clean Waters Administrators helped NJDEP understand EPA's intent and rationale regarding the proposed changes in the regulations.
Response For response to this comment, see the following response essay(s): 2.d 

# Comment ID 0251-A2.001.003
Author Name: Wigal Jennifer Organization: Oregon Department of Environmental Quality Oregon DEQ appreciates the level of engagement and opportunities for states to discuss and seek clarification regarding the proposed rules.
Response For response to this comment, see the following response essay(s): 2.d


# 2.E - OVERALL RATIONALE Comment ID 0117-A1.001.003
Author Name: Fredericks Michael Organization: Native Village of Chuathbaluk Why is the EPA Proposing Changes to the Federal WQS Regulation? Why, ask why? "Who" is more important in this case- the who being the "EPA? Speculations of "what if" cause us undo fear and paralysis to make us anxious while not enjoying our true purpose as people. Micromanaging becomes a hindrance by seeking out our passions which lead's us to depression no matter how we

08/04/2015 05:01 PM EDT 2-101Chapter 2 - Comment Documents Introductory and General Information make law to improve our respective governments. If we agree that water is the source or sustenance of life will drawing poisoned water from tainted wells-Sunday of the Samaritan Woman can help us all. A never quenching thirst to fix Federal WQS Regulations without an understanding of God is useless. What water shall we part take of i.e. a living water, and not thirst? Then, we seek self satisfaction without fasting which is not right. How can we seek out meaning with our jobs if dysfunctions may lead to acquiring more for the sake of having the newest? These undone regulations cause us anger, or anxiety in our work places. How could we even conceive of Proposed Regulatory Clarifications if we require an " Administrator's Determinations that New or Revised WQS are Necessary and repel our differing ways of thought of what is living water to us. If your waters do cause us to be legalistic people, this leads to judgment, pride, and loneliness. If we have " Designated Uses" of our senses i.e. seeing, hearing, tasting, touching, and smelling will these changes to WQS impede us in anyway? Imposed " Requirements of Triennial Reviews" become vain in attempts if we all are trying to be sustainable in this live. When and if referring to evaluation of options for antidegration implementation guidance with this Docket we are trying to fulfill our five senses we become entangled in traps. If we are seeking out five misplaced wells i.e. as if relying on our five sense then these will lead us to death and sorrow. Can WQS Variances help us as people escape death and sorrow? If we continue to lye to ourselves and seek out justifications for our actions this will be like allowing for " Provisions Authorizing the Use of Permit-Based Compliance Schedules" to cleanse us of our impurities. Why even mention, " Other Changes" as if we can predict the future. When we continue to draw from the well of remembered wrongs this leads us to be legalistic and dysfunctional with our jobs i.e. The most recent government shut-down is an example of such events. Do these memories or hurts define your lives?
Response For response to this comment, see the following response essay(s): 2.e 

# Comment ID 0152-A1.001.004
Author Name: Stevens Bruce Organization: Indiana Coal Council, Inc. Moreover, we do not see an impetus for major revisions to the Water Quality Standard Regulation. Nothing within the Clean Water Act mandates the regulation and it is not required by court order.
Response For response to this comment, see the following response essay(s): 2.e 

# Comment ID 0158-A1.001.009
Author Name: Goodmann Peter

08/04/2015 05:01 PM EDT 2-102Chapter 2 - Comment Documents Introductory and General Information Organization: Kentucky Division of Water EPA has not identified any circumstances that create an urgent need for the proposed substantial expansion of the Water Quality Standards Regulatory Program. The existing federal regulations have been in effect since 1983. In KDOW's experience, EPA has not been reticent about using its authority to review and approve Kentucky's water quality standards to ensure that Kentucky's water quality criteria, designated uses, and its antidegradation methodologies are sufficiently protective of Kentucky waters. Therefore, there does not appear to be sufficient reason for EPA to revise its water quality standards at this time.
Response For response to this comment, see the following response essay(s): 2.e 

# Comment ID 0166-A2.001.009
Author Name: Goodmann Peter Organization: Kentucky Division of Water EPA has not identified any circumstances that create an urgent need for the proposed substantial expansion of the Water Quality Standards Regulatory Program. The existing federal regulations have been in effect since 1983. In KDOW's experience, EPA has not been reticent about using its authority to review and approve Kentucky's water quality standards to ensure that Kentucky's water quality criteria, designated uses, and its antidegradation methodologies are sufficiently protective of Kentucky waters. Therefore, there does not appear to be sufficient reason for EPA to revise its water quality standards at this time.
Response For response to this comment, see the following response essay(s): 2.e 

# Comment ID 0190-A1.001.012
Author Name: Wagener Fritz Organization: NA Comments on the Preamble to the Proposal Page 54521: "The core requirements of the current WQS regulation have been in place for over 30 years. These

08/04/2015 05:01 PM EDT 2-103Chapter 2 - Comment Documents Introductory and General Information requirements have provided a strong foundation for water quality-based controls, including water quality assessments,impaired waters lists, and total maximum daily loads (TMDLs) under CWA section 303(d), as well as for water qualitybased effluent limits (WQBELs) in NPDES discharge permits under CWA section 402." Given EPA's recent statements and actions regarding state responsibilities for listing waters under 303(d) and EPA's requirements in reviewing state-adopted 303(d) lists, the above statement seems to be inaccurate, and perhaps misleading, in relation to the historical success of state and EPA actions to evaluate compliance with applicable antidegradation standards during the development of impaired waters lists. In addition, neither the proposed rule nor the preamble discusses the statutory requirement for states and EPA to implement 303(d) authorities for antidegradation standards. Although state WQS programs may have adopted/developed antidegradation policies that provide for a strong foundation for water quality-based controls, few, if any, states have included antidegradation standards in the 303(d) process to "identify those waters within its boundaries for which the effluent limitations required by section 301(b)(1)(A) and section 301(b)(1)(B) are not stringent enough to implement any water quality standard applicable to such waters." (emphasis added) By including these statements in the preamble to the proposed rule, and in the absence of any preamble discussion or proposed rule provisions to the contrary, EPA has misrepresented state and EPA responsibilities in relation to the 303( d) listing program and antidegradation standards. Therefore, EPA must either: (1) include a provision in the final rule that correctly characterizes the state and EPA the mandated responsibilities under 303(d) authorities under which the states and EPA under must complete, or (2) include in the preamble to the final rule a detailed discussion that explains the mandated CWA responsibilities for states and EPA to comply with 303(d) authorities for antidegradation standards. In either case, EPA should must be clear in the Federal Notice for the final rule that, even though states may not have done so in the past, a state must include as a part of its evaluation of water quality conditions conducted under 303(d) authorities (1) whether applicable antidegradation standards have been implemented, (2) whether compliance with such antidegradation standards has been achieved, and (3) whether additional water quality controls are necessary to comply with such antidegradation standards.
Response For response to this comment, see the following response essay(s): 2.e 7.g.iii 7.l 

# Comment ID 0206-A1.001.002
Author Name: Foster Kelly Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations The Clean Water Act ("CWA") is a "comprehensive water quality statute designed to ‘restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" PUD No. 1 of Jefferson County v. Wash. Dept. of Ecology, 511 U.S. 700, 704 (1994) (quoting 33 U.S.C. § 1251(a)). Pursuant to CWA Section 303, each State must adopt and

08/04/2015 05:01 PM EDT 2-104Chapter 2 - Comment Documents Introductory and General Information implement water quality standards to protect navigable waters within its borders, subject to oversight and approval by the EPA. 33 U.S.C. §1313. According to EPA: A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water, by setting criteria necessary to protect the uses, and by preventing degradation of water quality through antidegradation provisions. States adopt water quality standards to protect public health or welfare, enhance the quality of water, and serve the purposes of the Clean Water Act. EPA, Water Quality Standards Handbook: Second Edition Int-8 (1993) (emphasis added). The CWA also requires that water quality standards be "established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation." 33 U.S.C. §1313(c)(2)(A)

Response For response to this comment, see the following response essay(s): 2.e 2.c 

# Comment ID 0215-A1.001.002
Author Name: Callaway Casi Organization: Mobile Baykeeper The Clean Water Act ("CWA") is a "comprehensive water quality statute designed to ‘restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" PUD No. 1 of Jefferson County v. Wash. Dept. of Ecology, 511 U.S. 700, 704 (1994) (quoting 33 U.S.C. § 1251(a)). Pursuant to CWA Section 303, each State must adopt and implement water quality standards to protect navigable waters within its borders, subject to oversight and approval by the U.S. Environmental Protection Agency ("EPA"). 33 U.S.C. §1313. According to EPA: A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water, by setting criteria necessary to protect the uses, and by preventing degradation of water quality through antidegradation provisions. States adopt water quality standards to protect public health or welfare, enhance the quality of water, and serve the purposes of the Clean Water Act. EPA, Water Quality Standards Handbook: Second Edition Int-8 (1993) (emphasis added). The CWA also requires that water quality standards be "established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation." 33 U.S.C. §1313(c)(2)(A)

08/04/2015 05:01 PM EDT 2-105Chapter 2 - Comment Documents Introductory and General Information Response For response to this comment, see the following response essay(s): 2.e 

# Comment ID 0231-A2.001.004
Author Name: Sanderson Stuart Organization: The Colorado Mining Association General 40 C.F.R. Part 131 was published in 1983. In 1998, EPA published but did not act upon an Advanced Notice of Proposed Rulemaking to change the regulation. In 2010, a Notice of Stakeholder Input was published. There are no major problems with what was published in 1983. The point is, there is no immediate need to make considerable revisions to the WQS Regulation, as such action is not required by the Clean Water Act ("CWA") and is not subject to court deadline. CMA respectfully requests that EPA provide justification for the expanded role it is proposing to undertake through the agency's proposed changes, as the approximate 30-page proposal and stakeholder outreach webinars have not made it clear why this rulemaking is necessary.
Response For response to this comment, see the following response essay(s): 2.e 2.c 

# Comment ID 0231-A2.001.037
Author Name: Sanderson Stuart Organization: The Colorado Mining Association There is no immediate need to make considerable revisions to the WQS Regulation, as such action is not required by the Clean Water Act ("CWA") and is not subject to court deadline.
Response For response to this comment, see the following response essay(s): 2.e

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# Comment ID 0233-A2.001.005
Author Name: Pippy John Organization: Pennsylvania Coal Alliance The proposals unnecessarily restrict the use of currently available CWA mechanisms to establish appropriate and attainable standards and permit limits. In short, these proposals are unnecessary, overly restrictive and not sufficiently justified. In addition, there is no immediate need to make these considerable revisions to the Water Quality Standard Regulation. This proposal is not required by the CWA nor is it required by a court order. Therefore, we do not believe that the proposed clarifications are necessary.
Response For response to this comment, see the following response essay(s): 2.e 3.a 

# Comment ID 0238-A2.001.004
Author Name: Gonet Phillip Organization: Illinois Coal Association In addition, the ICA contends that there is no immediate need to make these considerable revisions to the Water Quality Standard Regulation. This proposal is not required by the CWA nor is it required by a court order. Therefore we do not believe that the proposed clarifications are necessary.
Response For response to this comment, see the following response essay(s): 2.e 

# Comment ID 0244-A2.001.002
Author Name: Loomis Marion Organization: Wyoming Mining Association General

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WMA has a general concern that the proposed rule is not adequately justified. EPA has not shown any need for the considerable revisions that are being proposed. 40 CFR Part 131 was originally written in 1983 and has been an effective tool for regulating water quality standards since this time.
Response For response to this comment, see the following response essay(s): 2.e 3.a 

# Comment ID 0244-A2.001.024
Author Name: Loomis Marion Organization: Wyoming Mining Association Conclusion WMA believes there is no immediate need to make considerable revisions to the WQS Regulation, as such action is not required by the CWA. Should there be questions regarding this submission, please contact WMA. Thank you for the opportunity to provide these comments.
Response For response to this comment, see the following response essay(s): 2.e 

# Comment ID 0252-A2.001.002
Author Name: Fry Eric Organization: Peabody Energy General 40 C.F.R. Part 131 was published in 1983. In 1998, EPA published but did not act upon an Advanced Notice of Proposed Rulemaking to change the regulation. In 2010, a Notice of Stakeholder Input was published, and Peabody provided comments (enclosed with this submission for ease of reference) on relevant WQS regulation issues at that time. There are no major problems with what was published in 1983. The point is, there is no immediate need to make considerable revisions to the WQS Regulation, as such action is not required by the Clean Water Act ("CWA") and is not subject to court deadline. Peabody respectfully requests that EPA provide justification for the expanded role it is

08/04/2015 05:01 PM EDT 2-108Chapter 2 - Comment Documents Introductory and General Information proposing to undertake through the agency's proposed changes, as the approximate 30-page proposal and stakeholder outreach webinars have not made it clear why this rulemaking is necessary.
Response For response to this comment, see the following response essay(s): 2.e 

# Comment ID 0252-A2.001.038
Author Name: Fry Eric Organization: Peabody Energy There is no immediate need to make considerable revisions to the WQS Regulation, as such action is not required by the Clean Water Act ("CWA") and is not subject to court deadline.
Response For response to this comment, see the following response essay(s): 2.e 

# Comment ID 0262-A2.001.023
Author Name: Rawlings Laurent Organization: Home Builders Association of Kentucky HBAK does not see an immediate need to make considerable revisions to the Water Quality Standard Regulation, as such action is not required by the Clean Water Act. It is HBAK's recommendation that EPA withdraw this proposal as it is both unnecessary and overreaching in its authority. Thank you for the opportunity to provide the above comments.
Response For response to this comment, see the following response essay(s): 2.e 3.a

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