# CHAPTER 3
Issue Category: Designated Uses

Pages 3- 33 – 3- 110

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 5.a – DU – Gen Supp



## E **ssay 5.a –**  **Designated Uses: General Support** 

The U.S. Environmental Protection Agency ( EPA ) agrees with commenters’ support for the revisions pertaining to how states and authorized tribes designate and revise designated uses for individual water bodies and the requirement to adopt the highest attainable use (HAU) . EPA agrees with commenters tha t the rule’s clarifications related to designated uses, will better help states and authorized tribes restore and maintain resilient water quality and robust aquatic ecosystems consistent with Clean Water Act ( CWA ) objectives. EPA agrees that the requireme nt to adopt the HAU is generally consistent with how many states and authorized tribes already implement their water quality standards (WQS)

programs.

For more information about states’ and authorized tribes’ discretion on how to articulate the HAU , see EP A’s response to 5.f.i.Chapter 3 – R esponse Essays 5.b – DU – Gen Opp



## Essay 5. **b – Designated Uses:**  **General Opposition** 

The U.S. Environmental Protection Agency ( EPA ) agrees with the comment that the current regulatory regime related to removing and revising designated uses is workable, but disagrees that the final rule will m ake it more difficult or will discourage states, authorized tribes, and stakeholders from pursuing revisions to designated use s

. The purpose of the final rule is to further improve and clarify the process by which states and authorized tribes designate and revise uses by more clearly articulating in rule and preamble that a use a ttainability a nalysis ( UAA ) is only required in the circumstances specified in section 131.10(j)

. In addition, the final rule establish es a requirement to adopt the highest attainable use (HAU)

, which makes clear how state s and authorized tribes meet Clean Water Act ( CWA ) requirements . Th e requirement for HAU is linked to the UAA process s uch that the HAU is the use based on the evaluation of factors in section 131 .10(g) that preclude attainment of the use and any other information and analyses that were used to evaluate attainability. Thus, adopting the HAU is not a subjective decision

, nor does it require a separate analysis in addition to a UAA

. In addition, the final rule clarifies that states and authorized tribes are not required to conduct a UAA in specific circumstances outlined in section
131 .10(k), further streamlining the regulatory process. For additional discussion on the topic of adopting the HAU , please see response essays 5.f. and 5.f.i.

EPA disagrees that the final rule is inconsistent with its March 2006 memorandum issued by Ephraim King on “ Improving the Effectiveness of the Use Attainability Analysis (UAA) Process ” and cont inues to stand behind the principles articulated in the March 2006 memo. Specifically in response to comments received, EPA continues to e ncourage state and tribal partners to work together to make the UAA process operate as efficiently as possible , and reiterates that there is nothing wrong with changing designated uses after completion of a credible and defensible UAA. Specifically, in the preamble to the final rule, EPA says “ Designated uses drive state and authorized tribal criteria development and water quality management decisions. Therefore, clear and accurate designated uses are essential in maintaining the actions necessary to restore and protect water quality and to meet the goals and objectives of the CWA. ” In fact, EPA specifically target ed the uses provisions at section 131 .10 as a follow up to the Ephraim King memo because multiple stakeholders provided feedback that more clarity would allow states, authorized tribes, and the public to engage in a more streamlined and transparent

process to revise designated uses.

EPA agrees that many states currently allow for use revisions and use removals; however, EPA disagrees that revisions to the federal regulation are therefore unnecessary. In EPA ’ s experience, states and authorized tribes may ade quately demonstrate that a particular use is unattainable and remove the use

, but fail to designate an alternate use or sub

- category of a use that is feasible to attain. As EPA explains in the preamble to the final rule “ ...if some less sensitive aquatic organisms are able to survive at the site under current or attainable future conditions, the state ’ s or authorized tribe ’ s WQS are not continuing to serve the goals of the CWA by removing the aquatic life use designation and applicable criteria altogether without adopting an alternate CWA section 101(a)(2) use or sub

- category of such a use that is feasible to attain, and the criteria that protect that use. ” EPA views the concept of HAU as being fundamental to the water quality standards ( WQS ) program. There fore, the final rule revises section
131 .10(g) to provide that where states and authorized tribes adopt new or revised WQS based on a required UAA, they must adopt the HAU.Chapter 3 – Response Essays 5.c – DU – UAA Process



## Essay 5.c **– Designated Uses:**  **UAA Process**

The U.S. Environmental Protection Agency ( EPA ) disagrees that the requirement that the factors identified in section 131 .10(g) be used whenever a use attainability analysis ( UAA ) is required is overly stringent. The final rule does not change the longstanding requirement that states and authorized tribes

must use the factors listed in section 131 .10(g) to demonstrate whethe r a use is unattainable

. Rather, the final rule provides additional clarity t hat states and authorized tribes are only required to use the factors in section 131 .10(g) when conducting a UAA required by section 131 .10(j). The final rule further clarifies th at states and authorized tribes are not required to use the factors in section 131.10(g) when a UAA is not required , such as when removing or revising a non

- 101(a)(2) use

.

T he final rule does not modify the section 131 .10(g) factors for designated uses in any way and, therefore, such a comment relating to the specific factors is out of the scope of this rulemaking . EPA has developed publicly available documents for states and authorized tribes when evaluat ing relevant data and information to determine w hether one of the factors precludes attainment of the designated use.
See “ UAAs and Other Tools for Managing Designated Uses ” 1 (March 2006) and “ Interim Economic Guidance for Water Quality Standards ” 2 (March 1995).

EPA disagrees with the comment that many UAAs use minimal data to determine if a use is or is not attainable, and therefore would not satisfy EPA ’ s requirement for highest attainable use ( HAU ) . The HAU requirement is linked to the UAA process such that the HAU is the use based on the evaluation o f factors
in section 131 .10(g) that preclude attainment of the use and any other information and analyses that were used to evaluate attainability.

The final rule does not modify the substantive requirements at section s 131.10(g) and (h)(1) that prohibit r emoval of an existing use. EPA ’ s intent with the example provided in the proposal (78 FR 54523) was to clarify that the regulatory prohibition on removing existing uses ( section s 131.10(g) and (h)(1)) does not apply where removal would result in improving the condition of a water body to be

more like its minimally impacted condition

. The purpose of existing uses is to help meet the objectives of the Clean Water Act ( CWA ) to restore and maintain a water ’ s chemical, physical and biological integrity and thus the prohibitions on removing an existing use in section s 131.10 (g) and (h)(1) do not apply in this limited instance

. One commenter stated that if a state removes a warm water fishery designated use due to dam removal, then the new cold water fishery would require more stringent criteria. Generally speaking EPA agrees with this comment but notes that a state or authorized tribe may not always be required to adopt more stringent criteria when restoring a water body to its more minimally impacted condition. On e example may be a scenario where a state artificially stock s waters with cold water fish, such as trout, to maintain a sports fishery. However, some years later, the state may choose to restore the water to its minimally impacted condition, which is a warm water aquatic life

use

. In this instance the state would not be required to continue artificially maintain ing a cold water fishery because it is an existing use, at the expense of restoring the water to a warm water aquatic life use and thus a l ess stringent temperature criterion.

1 http://water.epa.gov/scitech/swguidance/standards /upload/2007_08_08_standards_uses_uaa_cs

- all.pdf

2 http://water.epa.gov/scitech/swguidance/standards/upload/2007_06_18_standards_econwork book_complete.pdfChapter 3 – Response Essays 5.d – DU – Existing Uses



## Essay 5.d **– Designated Uses:**  **Existing Uses**

The U.S. Environmental Protection Agency ’ s ( EPA ’s) regulation at 131.10(h)(1) ( established prior to todays ’ rule ) provide s that states may not remove a designated use if the use is an existing use unless the state adopts a use requiring more stringent criteria

. Title 40 of the Code of Federal Regulations ( CFR )
section 131.10(g)

, ( established prior to today ’ s rule ), re fer s back to the requirement in section 131.10(h) by noting that that a st ate “ may remove a designated use which is not an existing use. ” 40 CFR 131.10(h) applies to all use removals. In its proposal, published September 4 th , 2013, EPA did not propose any changes to 131.10(h). While EPA ’ s proposed rule language in section 131.10(g) provided that a state may remove a use if it does not “ remove protection for an existing use ,” EPA did not intend to change the existing use requirement that resides in section 131.10(h)(1). Therefore, the final rule language in
section 13 1 .10(g) does not reflect the proposed rule language and continues to use the same language that previously existed related to existing uses. EPA retained this language to avoid any confusion or misunderstanding that section 131.10(g) creates a different requirement than section 131.10(h)(1). No individuals commented on the specific proposed rule language in 131.10(g) that a state or authorized tribe may remove a use if it does not “ remove protection for an existing use. ” Plea se see response
essay 5.g. for detailed discussion of why EPA did not finalize the proposed language.

EPA ’ s discussion of existing uses in the proposal was restricted in scope to two specific and limited interpretations regarding existing uses. First, EPA described its interpretation of the language in the definition of existing use in 131.3(e) to mean that the uses are “ actually attained ” when both the use and the water quality necessary to support the use have been achieved. EPA explained where data is li mited, inconclusive or not available to determine either that the use or water quality to support the use is achieved, that the state or authorized tribe has the discretion whether or not to make an existing use determination. Second, EPA explained that the existing use requirement in 131.10(h)(1) does not apply where a state or authorized tribe is removing a use that will result in improving the condition of the water body to be more like its minimally impacted condition. EPA solicited comment on these interpretations and therefore EPA is responding to comments on these topics raised in the proposed rule preamble and response to comments

. Therefore, EPA is responding below to the comments received on these interpretations only

. As discussed below

, all re maining comments on existing uses are outside the scope of this rulemaking

.
Finally, EPA acknowledges the requests for additional guidance on how states and authorized tribes should identify and protect existing uses. EPA will consider providing additional information about existing use determinations as it develops further guidance on water quality standards (WQS) after publication of this final rule

.



### A. **Comments r**  **egarding EPA**  **’ s**  **I nterpretation**  **T hat**  **the R**  **equirement in 131.10(h)**  **(1) D**  **oes N**  **ot A**  **pply W**  **hen a S**  **tate or A**  **uthorized T**  **ribe I**  **s R**  **emoving a U**  **se T**  **hat W**  **ill R**  **esult in I**  **mproving the C**  **ondition of the W**  **aterbody to B**  **e M**  **ore l**  **ike I**  **ts M**  **inimally I**  **mpacted C**  **ondition**

EPA ’ s basis for the position that 131.10(h ) (1) does not apply when a state or authorized tribe is removing a use that will result in improving the condition of the waterbody to be more like its minimally impacted condition is rooted in the requirement that WQS must “ serve the purposes of this chapter, ” which include the objective of the Act to “ rest ore and maintain the chemical, physical, and biologicalChapter 3 – Response Essays 5.d – DU – Existing Uses

integrity of the nation ’ s waters. ” Referring to the term “ integrity ” in the statutory goals, the House Report sta ted:

[T]he word “‘ integrity ” as used...refers to a condition in which the natural structu re and function of ecosystems [are] maintained. As a concept that refers to a condition in which the natural structure and function of the ecosystem is maintained....Although man is a “ part of nature ” and a product of evolution, “ natural ” is generally define d as that condition in existence before the activities of man invoked perturbations which prevented the system from returning to its original state of equilibrium. This definition is in no way intended to exclude man as a species from the natural order of things, but in this technological age, and in num [sic] erous cases that occurred before industrialization, man has exceeded nature ’ s homeostatic ability to respond to change. Any change induced by man which overtaxes the ability of nature to restore conditi ons
to “ natural ” or “ original ” i s an unacceptable perturbation.

H.R. Rep. No. 92

- 911, 92nd Cong. 2d Sess. 76 (1972). Therefore, EPA ’ s position regarding the applicability of the requirement in 131.10(h) discussed above is consistent with the Clean Water Ac t ( CWA ) because it allows for the restoration to minimally impacted conditions

.
EPA received a comment that supported EPA ’ s interpretation but provided the following example “ a
stream ’ s original Fish & Aquatic Life use was warmwater, but a facility discharged cold effluent resulting in a coldwater stream. If the facility changes hands to a different type of industrial process, now discharging warm water, it is reverting to its more natural use, which would be allowable under this clarification. ” EPA notes that the commenter ’ s example is not on point because EPA ’ s interpretation is in the context of revising a designated use whereas the commenter ’ s example is put in the context of a change in industrial discharge . The commenter ’ s example also incorrect ly implies that the minimally impacted condition is always the “ original ” use. This may not always be the case as the minimally impacted condition may not have ever been designated

. An appropriate example to demonstrate EPA ’ s interpretation would be if a stream was designated for a coldwater fish and aquatic life use because of a long time discharge of cold effluent from a facility that resulted in supporting this designated use. If the facility shut down or moved operations, the regulation at section 131.1 0(h)(1) and section 131.10(g) would not prohibit the state or authorized tribe from revising the designated use from a cold water fish and aquatic life use to a warm water use if the minimally impacted condition was in fact a warm water fish and aquatic li fe use.



### B. **Comments r**  **egarding EPA**  **’ s Interpretation of**  **“A ctually**  **A ttained**  **” in the**  **Definition of Existing Use**  **s**

EPA ’ s articulation in the preamble to the final rule states that an existing use is known to be “ actually attained ” when there are data to show that the use has actually occurred and the water quality has been attained. EPA ’ s original interpretation of this language in a 1985 Antidegradation Questions and Answers document was that “ An existing use can be established by demonstrating that fishing, swimming, or other uses have actually occurred since November 28, 1975 or that the water qual i ty is suitable to allow such uses to occur (unless there are physical problems which prevent the use regardless of water quality.) ” E PA ’s 1994 WQS Hand book, Chapter 4 Antidegradation , repeated thisChapter 3 – Response Essays 5.d – DU – Existing Uses

interpretation 1

. Additionally, in the 1998 Advance Notice of Proposed Rulemaking (ANPRM), EPA said

“ ...an existing use finding can be made either where the use is or has been “ actually attained ” or where the water quality necessary to support the use is in place even if the use, itself, is not currently established.... ” (63 FR 36752 , July 7, 1998 ). Comments cited to an example in a former EPA document regarding shellfish harvesting as being clear that “ the assessment of ‘ existing uses ’ should be found in the absence of the actual use. ” However, EPA initially explained its change in its interpretation from an

“ or ” to an “ and ” in its September 2008 letter from EPA to the State of Oklahoma ( http://water.epa.gov/scitech/swguidance/standards/upload/Smithee

- existing

- uses

- 2008

- 09

- 23.pdf ) which EPA referred to in its proposed rule preamble a long with EPA ’ s current interpretation.

EPA received a comment that said the commenter recommended that “ EPA revise the preamble description of when an existing use is “ known to be attained ” to “ states have discretion to determine whether an existing use has been attained, based on either the actual use or the water quality necessary to support the use has been achieved. ” EPA agrees that states and authorized should have some discretion but disagrees that this discretion should apply all the time. As discus sed in the 2008 letter, this change in interpretation is based on EPA ’ s experience in implementing the existing use requirement.
EPA ’ s definition uses the term “ actually attained ” where “ actually ” means a use “ actually occurred ” and

“ attained ” means where the water quality to support the use has been attained. EPA ’ s 2008 letter explained that an approach f or determining the existing use on either use or water qual ity allows states and authorized tribes to determine an existing use where it has definitive information only on whether the use has occurred or whether the water quality has been attained, some have misinterpreted this statement as obligating a state or authorized tribe to ignore one set of information where data is available on both t he use and t he water quality. For example, where data shows definitively that a use has not actually occurred but the water quality has been attained, some may interpret EPA ’ s statements in the 1998 ANPRM as meaning that a state must ignore the data regarding the use and determine that there is an existing use solely because the water quality has been attained. Section 131.10(h) serves as gate keeper provision that determines whether a state can remove designated use. EPA ’ s current interpretation allows sta tes and authorized tribes to require sufficient evidence that both the use and the water quality necessary to support the use exist in order to qualify as an existing use for purposes of 131.10(h)(1). EPA ’ s current interpretation is intended to ensure that when states and authorized tribes are evaluating existing uses to determine whether they would be “ removed ” by the removal of a designated use, that they are using information to accurately characterize the existing use. It is not scientifically defensible to arbitrarily ignore available data and EPA has determined that “ taking into account all the available information results in a more accurate articulation of the existing use .” EPA ’s 2008 letter and today ’ s final rule address situations where there is limited or inconclusive data such that a state or authorized tribe may still be able to determine the existing use based on whether the use has

occur red or whether the water quality has been attained when that is the only information available. Specifically , the preamble to the final rule reiterates the 2008 letter and says “ EPA recognizes, however, that all the necessary data may not be available to determine whether the use actually occurred or the water quality to support the use has been attained. When determining an existing use, EPA provides

1 A commenter referenced this original interpretation by saying “ EPA states in its Water Quality Standards Handbook (2d ed. March 2012), However, EPA did not have a 2012 edition of the WQS Handbook. The language cited by the commenter from Chapter 4.4 was written in 1994 and has not changed since then. In 2012, EPA included some links to additional information and resources that EPA developed subsequent to 199 4 in the online version of the Handbook. None of the text of the chapters changed from the 1994 version in 2012. Please see
EPA ’ s website for this disclaimer. EPA will consider updating this language as it develops new guidance after publication of the final rule.Chapter 3 – Response Essays 5.d – DU – Existing Uses

substantial flexibility to states and authorized tribes to evaluate the strength of the available data and information where data may be limited, inconclusive, or insufficient regarding whether the use has occurred and the water quality necessary to support the use has been attained. In this instance, states and authorized tribes may decide that based on such information, the use is indeed existing. ”

This means that where there is limited or no data on one or both of the factors, a state or authorized tribe may conclude there is not enough evidence to identify the designated use as the existing use. In such a case, a state or authorized tribe has two o ptions they may pursue. First, the state or authorized tribe can use its discretion to determine the existing use (i.e., the “ floor ” ) based on the evidence that is available . This interpretation is not meant to restrict or limit a state or authorized tribe ’ s discretion to determine that the designated use is also the existing use based on the strength of the available data, even where such data is inconclusive. As a second option where data is limited, inconclusive or insufficient, states and authorized tribes may decide to retain a designated use as their desired condition and therefore there is no need to determine the existing use at that time

. Such an action would be consistent with CWA section 510 and EPA ’ s implementing regulations at 131.4 that recogni ze that a state may develop WQS that are more stringent than CWA requirements. Therefore

, EPA acknowledge s commenters point that its current interpretation differs from EPA ’ s prior statements but

as discussed above , EPA provided and maintains a reasonable basis for this changed interpretation

.
EPA received a comment concerned that states do not have extensive data to inform existing use decisions and that in the absence of this data and in the absence of a serious and clear EPA policy on how to identify exi sting uses “ this key provision is simply ignored in nearly every regulatory action states take... ” EPA disagrees that there is an absence of serious and clear EPA policy on ho w to identify existing

uses. As discussed throughout this essay, EPA as clearly sta ted its policy for how states and authorized tribes are to determine existing uses where there is insufficient or inadequate data in its 2008 letter, and the preambles to the proposed and final rule. In addition, EPA will consider providing additional deta iled guidance in subsequent guidance it will publish after publication of the final rule.

EPA agrees with the comment that determining whether or not a designated use is an existing use must involve a careful analysis of data and information beyond the current conditions of a water body since an existing use is any use actually attained on or after November 28, 1975. This could include data and information about uses that were actually attained on or after that date, but is not currently attained. State and authorized trib al decisions on existing uses should be made on a site

- specific basis and could include (but are not limited to) measures such as speaking to local landowners and local/state/federal land management representatives about historical conditions; current and historical land use practices; and current and historic flow data.

For the reasons discussed in this section, EPA disagrees with comments that EPA ’ s current interpretation of existing uses is contrary to a plain reading of the definition of existing uses at section 131.3(e) (i.e.,

“ existing uses are those uses actually attained in the water body on or after November 28, 1975... ” ).
EPA ’ s regulation at section 131.3(e) uses the phrase “ actually attained ” and does not utilize “ actual use ” as the sole qualifying criteria for existing use as the comments suggest.

Some c omment s expressed concern that EPA ’ s position on existing uses supports the removal of a designated use in a situation where the use has actually occurred, but the water quali ty necessary to protect the use has never been attained (and vice versa), and that such a position may be detrimental to

a state ’ s or authorized tribe ’ s ongoing water quality protection and preservation efforts (e.g., a water body may have never achieved t he water quality necessary to support a primary contact recreation use,Chapter 3 – Response Essays 5.d – DU – Existing Uses

but the use routinely occurs and the state desires to restore the water body so that it attains the designated use). Commenters also expressed concern that EPA ’ s position “ eliminates t hreshold water quality protections necessary to attain the CWA ’ s goal of restoring and maintaining the chemical, physical and biological integrity of the Nation ’ s waters. ” The comment s also noted that the discussion in the letter to the State of Oklahoma i s much more nuanced than the preamble suggests. EPA agrees that there are nuances that were not fully incorporated into the preamble. EPA cited to the letter to State of Oklahoma so that readers may read it for the nuanced discussion. In regard to the spec ific concern of
EPA ’ s position supporting removal of a designated use where the use is not existing and that it removes threshold protections , the regulation requires that even if a designated use is not an existing use, the

state or authorized tribe must provide a justification for removing that designated use. For example, i n cases where the designated use in question is a primary contact recreation use, then the state or authorized tribe must demonstrate that the primary contact recreation use is not fea sible to attain based on one of six specific factors provided in section 131.10(g) and obtain public input through a public hearing on its decision before obtaining EPA approval before the use change is effective for CWA purposes. Therefore, if there is insufficient data to affirmatively determine that the water quality was never attained since November 28, 1975, as discussed above, the state has discretion to determine that the use is still existing based on the information that is available, such as the c ommon use of the water for recreation (see s ection B of the preamble to the final rule for additional discussion).

With regard to comment s that interpreted language in EPA ’ s letter to the State of Oklahoma to mean that as long as “ the state ’ s or tribe ’s identified existing use is maintained, the state or tribe should be free to remove or modify the designated use without any need for a UAA ” the EPA notes its statements regarding the letter to Oklahoma were intended to explain its interpretation of the def inition of existing use. The commenter is incorrectly using EPA ’ s statements in his/her conclusion and leads to an incorrect reading of the CWA and the regulation. The regulation set s existing uses up as a “ floor ” below which water quality should not go in order to “ maintain ” actually attained uses and water quality, consistent with the CWA. However, maintaining the existing use alone does not fully meet the objectives of the CWA which, in addition to “ maintenance ,” also includes “ Restoration...of chemical, p hysical, and biological integrity of Nation ’ s waters. ”

EPA agrees with comment s that evidence of incidental or opportunistic temporary presence of one or a few individuals (e.g., one or a few individual fish) may not necessarily constitute an existing use

, but disagrees that designation of the use may not be required in this scenario

. Where a few individual aquatic species are incidentally or temporarily present in a water body, EPA finds it reasonable for a state or authorized tribe to conclude that there are not enough data to know that the use actually occurred and the water quality to support that use was attained in order to say that a warm water aquatic life use is an existing use

. However, w hen designating uses, states and authorized tribes should

con sider a number of factors in addition to the existing use, such as the current use that is attained, as well as the use(s) that may be attainable in the future. If several fish are observed utilizing a water body on a transient, temporary basis, it may be reasonable to expect similar occurrences in the future, and therefore an aquatic life use designation may be attainable and appropriate. States and authorized tribes should engage their public in determining the highest attainable use (HAU) for such a wate r body.

Multiple comments said that many states historically designate uses without regard to attainability and reliable records regarding existing uses are often incomplete or unavailable. States and authorized tribes need to determine the existing use at the time it is used to implement the regulatory requirements (e.g., when considering a revision to a designated use per section 131.10(h)(1)). Existing uses can change
over time with water quality improvements as it represents the best use actually attain ed sinceChapter 3 – Response Essays 5.d – DU – Existing Uses

November 2 8, 1975. I dentifying such c hanges to t he existing use a re c ritical t o the f unction o f maintaining w ater quality consistent with th e objectives o f th e C WA. EPA ’s r egulation, therefore, d oes
not r equire, n or d oes E PA encourage, s tates a nd authorized t ribes to adopt existing u ses in to W QS as doing s o would n ot fac ilitate id entification o f the re al time i mprovements to w aters t hat is e nvisioned b y the CWA. Because existing uses a re d etermined i n r eal ti me for u se i n i mplementing th e section 131.10 and section 131.12 r egulations, E PA d isagrees with c ommenters t hat E PA s hould encourage s tates a nd authorized t ribes t o “r evisit ” whethe r those e xisting u se d eterminations are r ealistic o r at tainable an d, if not, correct them. All existing u ses are “re visited ” anew w hen t hey a re d etermined b ut b ecause t he regulations d o n ot r equire existing uses t o b e a dopted, t here i s n othing to “c orrect ”. The definition o f existing u ses a t section 131.3(e) reflects this p osition b ecause it includes the phrase “w hether o r not they a re i ncluded i n the water q uality s tandards. ” To t he exten t that states o r a uthorized tr ibes h ave chosen to fo rmally ad opt e xisting u ses in to the ir WQS regulations, states an d au thorized t ribes m ust s till determine the existing u se each time t hey ap ply the r elevant p rovisions fro m 131.10 o r 131.12.

E PA disa grees with the comment that the attainability of existing uses should be evaluated. The purpose of existing uses is to articulate the uses that have already been “ actually attained ” so that future water quality and designated uses are managed to maintain and protect these existing uses. EPA ’ s 1998 ANPRM stated “ As discussed in the background section above, the regulation defines ‘‘ existing uses ’’ as

‘‘ those uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards. ’’ (40 CFR 131.3(e))

. As a result, the focus of existing uses, is on the past or present condition of the water body. Furthermore, by establishing requirements prohibiting the removal of existing uses and ensuring those uses will be appropriately recognized in State and Tribal water quality standards, the current regulation ensures that the better of the past or present condition, at a minimum, will be maintained and protected. ” Attainability is a consideration when determining the appropriate designated use and not the existing use. However, it is critically important how a state or authorized tribe determines an “ existing use ” which is why EPA clarifi ed in its 2008 response to the State of Oklahoma and in the preambles to the proposed and final rule, how precisely an existing use is to be determined. In its letter to the State of Oklahoma, EPA stated that although there may be cases where data are insu fficient or inconclusive, “ It is appropriate to describe the existing uses of a waterbody in terms of both actual use and water quality because doing so provides the most comprehensive means of describing the baseline conditions that must be protected. In identifying an existing use, it is important to have a high degree of confidence because a state or tribe may not remove an existing use when revising designated uses, regardless of whether the existing use remains attainable. ”

EPA acknowledges comments pr oviding an example of a state

- specific action where EPA disapproved a use change from a full fish and aquatic life use to a modified aquatic life use, citing lack of data related to the existing use. C omment s state d that the final rule, if adopted as proposed, would result in a different outcome regarding the determination of existing use. This specific comment is outside the scope of this rulemaking, as it addresses a state

- specific decision

.
EPA agrees with the comment that the refinement of uses or sub

- categories of uses are not required to be identified at a single species level, and will consider incorporating this discussion into subsequent guidance after the final rule is published

. “ Use refinement ” is a broad term that encompasses any activity undertaken by a state or authorized tribe to review and revise the designated uses applied to its

waters. A state/ authorized tribe may refine its designated use by revising the language defining what it intends to protect with this particular designated use or by removing a designated use and adopting more specific designated uses in its place

. “ Subcategorization ” of uses means any use refinement that involves subdivision of broadly applicable use categories into smaller, more homogenous groups ofChapter 3 – Response Essays 5.d – DU – Existing Uses

waters with the intent of reducing variability within the group. Refined designated uses can be a tool to identify and capture differences in expectations based on differences in waterbody type and ecoregional location and they can reflect human caused conditions that cannot be remedied. The degree to which a

state or authorized tribe should refine or subcategorize their aquatic life uses depends upon the quality and quantity of the available monitoring and assessment data and the power of the data to distinguish between different subcategories. By refining aquatic life uses, states and tribes can better organize and align their uses with the biological realities they observe in surface waters. In this regard, refined aquatic life use systems have significant advantages over more general approaches to aquatic life uses, including a better ability to account for differences between waters due to natural variability in waterbody types. Please see response essays 5.f., 5.f.i, and 5.f.ii for additional discussion on identifying the HAU

. EPA ’ s WQS Handbook at Chapter 2.3 also discusses use subcategories.

Several commenters expressed general support for the interpretation regarding existing uses that EPA discussed in the proposal preamble a nd addresses in this section of the response essay ( see 78 FR
54523 , September 4, 2013 ). EPA reiterated th is interpretation in the preamble to the final rule to affirm its position after taking comment (see s ection II.B). However, EPA disagrees with the commenters who stated that EPA should incorporate such clarifications into regulatory language. EPA ’ s intention with respect to the narrow interpretation of the phrase “ actually attained ” in the definition of “ existing uses ”

at section 131.10(e) is not to change or revise the requirement in 131.10(h)(1) itself . T herefore EPA has determined that it is unnecessary to revise the language of 13110(h)(1) and 131.3(e)

.
For comments concerning antidegradation implementation methods and existing uses, please see

re sponse essay 7.l. For comments concerning the adoption of antidegradation implementation methods by rule, please see comment response 7.f.i.



### C. **Comments o**  **utside the S**  **cope of the Rulemaking**

Comments that took the position that EPA ’s “ clarifications ” regarding existing uses are unnecessary because an existing use will be protected through the implementation of an antidegradation policy are outside the scope of this ru l emaking . As discussed above, EPA did not change the underlying requirement regarding existing uses and designated use removals. Nonetheless this requirement is separate from the requirements in 131.12(a)(1) . EPA did not propose any changes regarding 131.12(a)(1) and therefore this comment is outsid e the scope of this rulemaking.

While EPA did articulate an interpretation of the word s “ actually attained ” in the definition at 131. 3 (e), EPA did not propose or finalize any regulatory revisions to section 131.3(e) , did not revise the requirement at section 131.10(h)(1), nor did it reopen this e ntire provision. Therefore, comments suggesting edits to section 131.3(e), such as clarifying that existing uses only apply to the uses specified in section 101(a)(2) of the CWA, or comments stating that EPA ’s “ look back ” date of November 28, 1975 is arbit rary or unrealistic from a water quality perspective, and comments that section 131.10(h)(1) leads to an unrealistic/unattainable category of designated uses or should be revised to allow some exceptions where the HAU is lower than the existing use are outside the scope of this rulemaking. Comments that EPA should reconsider the restrictions against removing an existing use is out of scope for the same reasons.

EPA received a comment concerned that states do not have extensive data to inform existing use de cisions and that in the absence of this data and in the absence of a serious and clear EPA policy o n how to identify existing uses “ this key provision is simply ignored in nearly every regulatory action statesChapter 3 – Response Essays 5.d – DU – Existing Uses

take... ” As discussed above, EPA ’ s proposal and final only interpreted the words “ actually attained ” but did not alter the definition of existing uses at section 131.3(e) or the requirement at section 131.10(h)(1) such that EPA reopened its entire provision. EPA has stated its clear polic y for how states and authorized tribes are to determine existing uses where there is insufficient or inadequate data, but comments suggesting that EPA must require

Several commenters noted that EPA ’ s regulatory revisions related to existing uses are unnece ssary, because existing uses are already protected through sections 131.10(g), (h)(1), and section 131.12(a)(1). As discussed above, EPA did not change the regulatory requirement in 131.10(h)(1) that is referenced in 131.10(g)

.Chapter 3 – Response Essays 5.e – DU – Definitions/Terms



## Essay **5.e – Designated Uses:**  **Definitions/Terms**

Co mment excerpts in this Definition/Terms issue category include supplementary/introductory information provided by commenters without information, criticism, or suggestions pertaining to any elements contained in t he U.S. Environmental Protection Agency’s ( EPA's ) proposed rule. As such, they

are not considered to be substantive or significant comments on the proposed rule itself and

, therefore, do not require responses. With regard to the commenters that indicate their letters contain specific comments on the proposed rule, see the relevant essays of this comment response document for responses to the substantive comment excerpts.



### A. **Definition of Highest Attainable Use**

N umerous commenters state d that the proposed definition of highest attainable use (HAU) is overly broad and ambiguous. Specificall y, commenters expressed that the terms “closest to the uses specified in section 101(a)(2) of the Act” and “best available data and information” are undefined and subjective in nature, and could lead to litigation over whether the HAU was properly selected

. Other commenters indicated that the concept of HAU inaccurately implies a hierarchal relationship amongst uses , and the term “highest” oversimplifies state and authorized tribal use decisions , which may be more accurately described as use refinements

. So me commenters suggested that EPA revise the definition of HAU in rule to specifically provide states and authorized tribes with discretion to identify the HAU that they determine to be most appropriate using best professional judgement (BPJ) , while other c ommenters suggested deleting the definition in its entirety from the rule language and instead focusing more appropriately on the desired outcome of the use attainability analysis ( UAA ) process

.

EPA agrees with commenters that th at some elements of th e proposed definition could be seen as ambiguous and subjective and possibly lead to increased litigation. EPA agrees that it is logical to focus the identification of the HAU on the outcome of the UAA process. EPA also agrees that the proposed definition co uld be read to imply a hierarchy amongst uses

. Commenters expressed both that “highest” could be misleading and imply that of the uses specified in Clean Water Act ( CWA ) section 101(a)(2), there is one “highest” use that is prioritized over all others and that within a use category, such as aquatic life use, there may be different needs of the aquatic ecosystem that require different criteria, but a more stringent criterion does not mean it is the “highest” use (e.g.

, cold water aquatic life vs warm

water a quatic life).

To address these comments, EPA made a few changes to the definition . T he final rule defines HAU as the “modified aquatic life, wildlife, or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, based on the evaluation of the factor(s) in § 131.10(g) that preclude(s) attainment of the use and any other information or analyses that were used to evaluat e attainability. There is no required highest attainable use where the State demonstrates the relevant use specified in section 101(a)(2) of the Act and sub

- categories of such a use are not attainable. ” This definition includes more specific ity to ensure that the resulting HAU requirement is clear to states, authorized tribes, stakeholders and the public. First, EPA add s the term “modified” to address the concern of a hierarchy amongst uses. As discussed in the preamble to the final rule, adding this term addressed this concern by making clear that when adopting the HAU, the state or authorized trib e is adopting a different use within the same broad CWA section 101(a)(2) use category, if any such use is attainable. For example, if a state or authorized tribe removes a warm water aquatic life use, then theChapter 3 – Response Essays 5.e – DU – Definitions/Terms

HAU is a modified version of the warm water aquatic life use, such as a “limited warm water aquatic life

use. ” This also makes clear that if the HAU is a modified version of the aquatic life, wildlife, OR recreation use, then it is NOT a use that picks aquatic life use over a recreation use, thus eli minating the concern of prioritizing one use specified in CWA section 101(a)(2) over another. The preamble also makes clear that even within the same broad use category (e.g., an aquatic life use) , the HAU is not necessarily the use with the most numerically stringent criteria

. Rather, determination of the HAU must take into consideration the naturally expected condition for the water body or waterbody segment

.
Second, EPA’s proposed rule required that the HAU be “determined using best available data and information through the use attainability analysis.” EPA agrees that the term “best” could be subjective and ambiguous and therefore EPA replaced this language with the phrase “based on the evaluation of the factor(s) in § 131.10(g) that preclude(s) attainment of the use and any other information or analyses that were used to evaluate attainability” to add specificity and clarify that the HAU is the use that results from the process of determining what is not attainable.

Third, EPA retained the term “closest” even though some commenters raised an issue about subjectivity because after consideration EPA determined that the term best conveys the concept that the HAU is the “best use” within the relevant goal use category that is attainable. While EPA considered alternative phrasing raised in comments, such as “similar to

, ” EPA rejected such proposals out of concern that the term “similar to” is vague and may have the potential to create ambiguity. In addition, wh ile commenters included “closest” when discussing their concerns about subjectivity, t he revisions to the definition , address the issue such that the term “closest

, ” in context

, is no longer subjective. When taken as a whole, today’s final rule definition makes clear that HAU the attainable use that results from the process of determining what is not attainable

.
Fourth, EPA added “ There is no required highest attainable use where the State demonstrates the relevant use specified in section 101(a)(2) of the Act and sub

- categories of such a use are not attainable ” to be clear that although EPA expects such situations to be rare, the rule does not prohibit states and authorized tribes from removing a designated use specified in CWA section 101(a)(2) or a sub

- ca tegory of such a use, altogether, where demonstrated to be unattainable. Please see the preamble for additional discussion.

Linking the definition of the HAU to the UAA demonstration of what is not attainable provides a reasonable definition that states an d authorized tribes can use to implement the requirement at section 131.10(g) and for EPA to reasonably use when exercis ing its oversight authority

. For additional discussion on the final definition of HAU, and how the final definition addresses comments received, see

s ection II.B of the preamble to the final rule and final rule language at section 131.3(m)

.

Other comments contend that the HAU should be based on a state’s or authorized tribe’s BPJ and/or the data that the state or authorized tribe determines is the best available

. For a response to this comment, please see response essays 5.f.i. and 5.k.

EPA also disagrees with comment s that the definition of HAU should be deleted in its entirety from the fin al rule , and/or that section 131.10(g) should be revised to require adoption of “all attainable uses” rather than the “highest attainable use.” EPA considered th ese options ; however, t he concept of HAU is so fundamental to the water quality standards ( WQS ) program that without a regulatory definition, the concept would not be transparent and c ould lead to confusion and ineffective implementation, and thusChapter 3 – Response Essays 5.e – DU – Definitions/Terms

less environmental protection

. Having a definition is also essential for states and authorized tribes as they implement this requirement and for EPA to effectively and efficiently exercise its oversight role.

EPA disagrees with comment s that the definition of HAU should not be included in the final rule until EPA has completed discussions with stakeholders about financial capability . EPA received many comments suggesting that EPA underestimated the proposed burden and cost of the rule. States specifically requested to meet with EPA to provide additional information for EPA to consider. EPA engaged with the states, as requested, after proposal and incorporated the information provided by individual states into its final economic analysis (EA)

. EPA’s EA and an explan ation for how EPA derived its cost and burden estimates are documented in the Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule) and can be found in the docket for this rule. For additional discussion on this topic, see res ponse essay 12.a.

EPA also disagrees with comment s that the definition of HAU should not be included in the final rule until EPA complete s a Report to Congress on national progress about that success (or lack thereof) regarding how states and EPA have implemented the CWA’s UAA provisions. EPA does not intend to complete a ny separate Report to Congress on national progress related to UAAs . H owever, EPA notes it has previously solicited and considered public input on the national WQS program in the past, incl uding public comments on the 1998 Advance Notice of Proposed Rulemaking (ANPRM), a national symposium on designated uses held in 2002, and four workshops held in 2005 and 2006 designed to gather input and individual state feedback on the establishment, adj ustment, and implementation of designated uses (78 FR 54520, 54521 , September 4, 2013 ). T his feedback served as a starting point as EPA developed its targeted list of issues to address in this rule, how to revise the regulations, and the rationale.

EPA dis agrees with comment s that the definition of HAU in the final rule does not include the consumption of aquatic life by humans. While the final definition does not explicitly include consumption of aquatic life by humans in the phrase “...modified aquatic life, wildlife, or recreation use...” EPA’s position is and has been for decades that the consumption of aquatic life is a use specified in section 101(a)(2) of the Act. EPA interprets the uses specified in section 101(a)(2) of the Act to mean that not only ca n fish and shellfish thrive in a water body, but when caught, they can also be safely eaten by humans. For additional discussion on this topic, please see response essay 5.k, as well as section II.B of the preamble.

EPA disagrees with comment s that the definition of HAU should take into consideration the historical use of water, and that the historical use of a water should be considered along with physical, chemical, biological and economic factors in 131.10(g)

. EPA agrees that what has been a ctually attained in the past should inform designated uses, but it is unnecessary to include such factors in the definition of the HAU because section 131.10(h)(1) and section 131.10(g) already prohibit states and authorized tribes from removing a designat ed use if it removes an existing use. This adequately captures consideration of the historical use of the water. For discussion on tribal treaty rights, see subsection E. of this essay.

With regards to the comment that the regulatory definition of HAU shou ld be expanded to encompass the concept of “ Clean Water Act 101(a)(2) uses and/or the natural condition (or restoration of the integrity of the water)” EPA disagrees that such revision is necessary because the preamble to the final rule explains that : “The CWA does not require states and authorized tribes to adopt designated uses to protect a level beyond what is naturally occurring in the water body. Therefore, a state’s or authorized tribe’s determination of the HAU must take into consideration the naturally expected condition for the water body or waterbody segment.”Chapter 3 – Response Essays 5.e – DU – Definitions/Terms



### B. **Implementing the Highest Attainable Use**  **Requirement**

EPA agrees with comment s that the HAU is linked to the UAA process and EPA’s final rule at section 131.10(g) makes this clear by spec if ying that “If a State adopts a new or revised water quality standard based on a required use attainability analysis, the State shall also adopt the highest attainable use , as defined in §131.3(m) .”

One commenter stated that , in some limited situations, a state or authorized tribe may only have one designated use category (e.g., a single aquatic life use category) and thus there is no other “lesser” aquatic life use to designate as the HAU. With regards to this comment, EPA notes that th e preamble to the final rule provides multiple examples of how states and authorized tribes can articulate the HAU, including 1) using an existing designated use framework; 2) adopting a new statewide sub

- category of a use; 3) adopting a new sub

- category of a use that uniquely recognizes the limiting condition for a specific water body; and 4) designating a new or already established, broadly defined HAU and the criteria associated with the best pollutant/parameter levels based on the information or analysis the state or author ized tribe used to evaluate attainability of the designated use. In the preamble to the final rule, EPA clarifies that “where a state or authorized tribe does not already have a statewide use in their regulation that is protective of the HAU, the state or authorized tribe will need to find an approach that meets the requirements of the CWA and § 131.10(g)

. States and authorized tribes are not limited by the examples described in this section and can choose a different approach that align s with their specifi c needs, as long as the ir preferred approach is protective of the HAU and is consistent with the CWA and § 131.10. ” For additional discussion, see section II.B of the preamble to the final rule.

One commenter stated that t he fi nal rule at section 131.10(g) should note that the options provided for articulating the HAU in the proposed rule at section 131.10(g) are not exclusive (i.e., states and authorized tribes are free to use other approaches). The specific sentence at issue is “To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location specific use.” EPA has removed this statement from the final rule languag e to address this comment. Please see response essays 5.f.i and 5.g for additional discussion on EPA’s response. EPA reiterates here and in the preamble to the final rule that states and authorized tribes may choose different approaches for articulating the HAU, as long as the approach chosen is consistent with the CWA and section 131.10. Please also see section II.B. of the preamble to the final rule for discussion on example approaches for states and authorized tribes to consider

.
EPA agrees with comment s that the preamble to the final rule should provide additional examples of how the HAU may be identified using the factors at section 131.10(g). EPA refers t he commenter to the examples provided in section II.B of the preamble to the final rule.

EPA disagr ees with the comments that states and authorized tribes will need to conduct two UAAs in order to implement the HAU: one to remove the unattainable 101(a)(2) designated use, and a second to determine the HAU. In fact, t he same UAA that determines what is not attainable is used to determine the HAU
, as described in the final HAU definition at section 131.3(m)

. EPA also received comment that the commenter was concerned with how an HAU is identified based on the factors at section 131.10(g) if the factors are intended to determine what is not attainable rather than what is attainable. EPA agrees and consistent with the commenters request that EPA “ modify the language of the HAU to place it in its proper context” and provide examples, EPA has both modified the H AU to place it in the context of how the UAA is used to determine the HAU and provides an example of how a UAA would informChapter 3 – Response Essays 5.e – DU – Definitions/Terms

identification of the HAU. EPA will consider providing additional examples in guidance after the final rule is published.

EPA disagr ees with the comment that states and authorized tribes will need to designate every water body as a cold water fishery because such a use is considered the HAU, even if in reality such a use is not naturally attainable in most waters. EPA refers t he commen ter to the definition of HAU in the final rule

at section 131.3(m), which clearly states that the HAU is the use “both closest to the uses specified in section 101(a)(2) of the Act and attainable , based on the evaluation of the factor(s) in § 131.10(g) that preclude(s) attainment of the use.....” (emphasis added). In addition, EPA added the following language to the preamble to the final rule: “The CWA does not require states and authorized tribes to adopt designated uses to protect a level beyond what is n aturally occurring in the water body. Therefore, a state’s or authorized tribe’s determination of the HAU must take into consideration the naturally expected condition for the water body or waterbody segment.” Please see EPA’s preamble to the final rule at section II.B. for additional discussion on this point and preamble language.

EPA disagrees with comments that adopting the HAU and supporting criteria are overly burdensome for states and authorized tribes. EPA received many comments suggesting that EPA u nderestimated the proposed burden and cost of the rule. States specifically requested to meet with EPA to provide additional information for EPA to consider. EPA engaged with the states, as requested, after proposal and incorporated the information provide d into its final EA

. EPA’s EA and an explanation for how EPA derived its cost and burden estimates are documented in the Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule) and can be found in the docket for this rule

. Pleas e see response essays 5.f.i. and 12.a. and 12.b.

EPA disagrees with comment s that implementing the HAU requirement will lead to the adoption of an impractical number of nuanced sub

- categories and associated criteria

. How detailed a state or authorized trib e wishes to be with its designated uses is solely at the discretion of the state or authorized tribe, as long as the adopted designated use protects the HAU , consistent with section 131.10(g) . S tates and authorized tribes do not need to designate very spec ific sub

- categories (e.g., at the species

- specific level) if there is another approach that satisfies the HAU requirement

, although, in some

cases, such an approach may better communicate the goals and objectives for a water body to the state’s or authorized tribe’s public.

One commenter asserted that giving states discretion to determine the HAU would alter the court’s standard of review. To the extent that the commenter suggested that the decision regarding what is the
HAU is within the sole discretion of the state, EPA does not agree. EPA’s rule provides a definition and sets basic requirements for adoption of the HAU which the state or authorized tribe will need to meet, subject to stakeholder input and EPA’s review and approval. EPA cannot speak to the standard of review in all state/authorized tribal courts, however the Administrative Procedure Act ( APA ) standard would apply to the reviewability of EPA’s final agency action on a new or revised HAU.

EPA disagrees with com ment s that the HAU requirement will result in degradation of water quality in the United States , as well as degradation of state environmental agency oversight . The commenter did not provide any examples or information to support this statement. EPA reiter ates that removing a use specified in section 101(a)(2) of the Act and subcategories of such uses and the applicable criteria altogether, without adopting the HAU (and the criteria that protect th e HAU ) does not serve the goals of the CWA or enhance the qu ality of the water consistent with CWA sections 101(a)(2) and 303(c)(2)(A)

.Chapter 3 – Response Essays 5.e – DU – Definitions/Terms

EPA disagrees with comment s that the HAU must be determined for all waters, and refers the commenter to the final rule at section 131.10(g), which clearly links the requirement to adopt the HAU to instances when a state or authorized tribe conducts a UAA as specified in section 131.10(j).

For a response to comments regarding how the HAU affects the CWA given authority and discretion to consider “use and value” when designating uses, please see response essay 5.k.



### C. **Definition of Clean Water Act**  **101(a)(2) Uses**

EPA agrees with the comment that it should clearly define what uses constitute a use specified in section 101(a)(2) of the Act. The preamble to the final rule clarifies the ter ms “uses specified in section 101(a)(2) of the Act” and “sub

- category of a use specified in section 101(a)(2) of the Act” (see section II.B of the preamble to the final rule). In addition, EPA provides a regulatory definition for the term “non

101(a)( 2) use” in the final rule at section 131.3(q).

EPA agrees with the comment that it should include preamble discussion clarifying the meaning of fish and aquatic life uses, as well as clarifying that incidental, occasional or opportunistic presence of a lim ited number of individual aquatic organisms is not equivalent to a full CWA 101(a)(2) use. The preamble to the final rule clarifies the terms “uses specified in section 101(a)(2) of the Act” and “sub

category of a use specified in section 101(a)(2) of the Act” (see section II.B of the preamble to the final rule). In the example provided by the commenter, the incidental, occasional or opportunistic presence of a limited number of individual aquatic organisms would not provide for the protection and propagati on of fish, shellfish and wildlife and thus would not be considered to be a full 101(a)(2) use

. However, as discussed in response essay 5.d, when designating uses, states and authorized tribes need

to consider a number of factors in addition to the existin g use, such as the current use that is attained, as well as the use(s) that may be attainable in the future , and considerations of threatened or endangered species . If several fish are observed utilizing a water body on a transient, temporary basis, it

may be reasonable to expect similar occurrences in the future, and therefore an aquatic life use designation may be attainable and appropriate. States and authorized tribes should engage their public in determining the HAU for such a water body even if it is a subcategory of a use specified in section 101(a)(2) of the Act.

With regards to the comment that the requirement to adopt the HAU is invo k ed when a state or authorized tribe conducts a UAA and subsequently adopts a use that is not protective of 101(a) us es , EPA is unclear how the commenter is defining the phrase “not protective of 101(a) uses.” EPA clarifies that the requirement to adopt the HAU is limited to when section 131.10(j) requires a UAA.

E PA disagrees with comment s that the final rule language s hould use the term “fishable and swimmable” in lieu of the phrase “uses specified in section 101(a)(2) of the Act.” EPA also disagrees that the final rule at section 131.3 should define the terms “fishable” and “swimmable .” The phrase “uses specified in se ction 101(a)(2) of the Act” is directly tied to the relevant section of the CWA, which states: “......it is the national goal that, 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 be achieved....” By so formally short

- handing the phrase to “fishable and swimmable

, ” EPA would not be fully describing the intent and scope of the CWA section 101(a)(2)

.Chapter 3 – Response Essays 5.e – DU – Definitions/Terms

EPA disagrees with commenters who state that there is no basis to include fish consumption as a use specified in section 101(a)(2) of the Act. For additional discussion on this topic, please see response essay 5.k, as well as section II.B of the preamble. EPA also disagrees with the co mmenter who stated that the final rule should clarify that no UAA is required when removing a fish consumption use. For additional discussion on this topic, please see response essay 5.j, as well as section II.B of the preamble.



### D. **Use Attainability Analys es** 
With regards to the comments suggesting revisions to the definition of a UAA at section 131.3(g), these comments are outside the scope of this rulemaking. EPA did not propose and is not finalizing any revisions to the definition of a UAA at section 131. 3(g).

With regards to the comment t hat EPA has historically made it difficult for states and authorized tribes to pursue UAAs , t he commenter did not provide any specific information or examples to support this statement. However, EPA notes it does not and would not force a state or authorized tribe to conduct a
UAA and downgrade its 101(a)(2) related designated uses (consistent with CWA section 510) . Such a decision is at the discretion of the state or authorized tribe, as long as its actions satisfy minimu m CWA requirements and the federal regulations . Where states and authorized tribes submit a designated use revision based on a UAA, EPA must approve or disapprove it in a timely manner. EPA can only approve a use change if it meets the requirements of the CWA and the WQS regulation.



### E. **Other**

EPA acknowledges and appreciates commenters who expressed support for the inclusion of the HAU requireme nt.

EPA disagrees with comments that the concept of HAU is not supported by the CWA, as well as comments that the HAU is an unreasonable intrusion on state flexibility. For additional discussion on this topic, see response essay 5.k.

For a response to comm ents on HAU and triennial reviews, please see response essay 5.f.i.

EPA disagrees with the commenter who suggests t hat this rulemaking undermines the Congressional intent under the CWA for states ( including U.S. territories and authorized tribes) to have the primary responsibility to set WQS (including designated uses) , and that EPA’s HAU requirement is contrary to CWA section 101(b)

. EP A acknowledges that the CWA creates a partnership between states and authorized tribes and EPA, by assigning states and authorized tribes the primary role of adopting WQ S (CWA sections 101(b) and 303) and EPA the critical oversight role of promulgating regulation s as necessary to implement the CWA (pursuant to CWA section 501), approving and disapproving state - or authorized tribe

- adopted WQS, and promulgating federal WQS for state and tribes where appropriate

. For additional discussion on this topic, see response essay 3.a and 5.k

.
With regard to the commenters suggesting that EPA further revise the rule to include the term “ and tribe(s)” in every instance that the regulation uses “State(s)”

, EPA disagrees. The addition of the words “and tribe(s)” is not appropriate in some cases because only Federally recognized tribes that EPA has found eligible, pursuant to CWA section 518(e) and Title 40 of the Code of Federal Regulations ( CFR )
section 131.8, have the authority to administer a CWA WQS program. Further, the addition of the words “and tribe(s)” is not necessary because the regulation at 131.3(j) defines “States” for the purposes ofChapter 3 – Response Essays 5.e – DU – Definitions/Terms

40 CFR Part 131 as including “The 50 States, the District of Columbia, Guam, the Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, and Indian Tribes that EPA determines to be eligible for purposes of the water quality standards program.” While the final rule does not add the term “and tribe(s)” throughout the regulation, as commenters suggested, EPA did review the us e of the term “states” throughout the regulation to ensure that it was used appropriately and consistently. As described in section II.A of the preamble to the final rule, EPA found that use of the term “States” in section 131.22(b) did not accurately desc ribe the scope of waters for which CWA section 303(c)(4)(B) provide s authority to the EPA Administrator. Thus, the final rule removes the word “States” from section 131.22(b), and instead uses the term “navigable waters,” consistent with CWA section 303(c) (4). EPA did revise the preamble language to say “states and authorized tribes” wherever appropriate , and has used the phrase “states and authorized tribes” throughout these responses to comments

.
With regards to the comments t hat use s should not be downgr aded to the extent that the downgrade would result in a lack of protection for treaty

- reserved rights, resources, and tribal member health

, EPA acknowledges the United States’ government

- to

- government relationship with and trust responsibility to federally recognized Indian tribes, and that EPA must ensure its actions do not conflict with tribal treaty or other reserved rights. EPA remains fully committed to engaging tribes as sovereign governments with a right to self

- governance. To the extent the commente r is concerned that a use
revision or “downgrade” may remove an existing tribal use , EPA notes that the existing use provisions at
sections 131.10(g) and (h) (1) still apply. EPA’s final rule did not make any revisions to the existing use provisions. Where a tribe is concerned that a state action may impact a n existing use, a tribal treaty right, or other reserved right, the tribe may provide comments to the state during their public comment period for the state's consideration. The tribe may also provide su ch comments to EPA after the state has adopted its WQS

.

EPA received a comment that was concerned that EPA’s statements about identifying existing uses where data is lacking or insufficient was authorizing or encouraging states and authorized tribes to adopt new or amended WQS “when not all the ‘necessary’ scientific data needed to support the standards has been developed or vet ted.” The commenter is confusing designated uses with existing uses. A UAA, which is a structured scientific assessment of the factors affecting the attainment of the use, is required when modifying or removing 101(a)(2) designated uses per section 131.10( j). As described in the preamble to the final rule, existing uses are uses that have been actually attained on or after November 28, 1975. EPA recognizes, however, that all the necessary data may not be available to determine whether the use actually occur red or the water quality to support the use has ever been attained. In those situations, EPA provides flexibility to states and authorized tribes to evaluate the strength of the available data and information where data may be limited, inconclusive, or ins ufficient. For additional discussion on existing uses, please see response essay 5.d. When designating uses, the regulations allow states and authorized tribes to designate the uses specified in section 101(a)(2) of the Act without conducting a UAA and thus states and authorized tribes can choose to designate such uses without first confirming with data that such uses are indeed attainable. Please see response essay 5.i. for additional discussion.

EPA acknowledges the comment that “ the HAU may be both a new use designation (or a sub

- category of the use) and its site

- specific standard ”. EPA does not understand the comment as written, but assumes the commenter may be confusing the concept of a “ site

- specific criteri on” with a “ location

- specific use. ”
A site -sp ecific criterion is designed to protect the current, unchanged designated use, but the criterion value may be different from the statewide or otherwise applicable criterion because it is tailored toChapter 3 – Response Essays 5.e – DU – Definitions/Terms

account for site

- specific conditions (but is still protec tive of the applicable designated use on the water body in question) . A location

- specific use, on the other hand, is best described as a sub

- category of a use that uniquely recognizes the limiting condition for a specific water body and the use that can be attained as a result

.
With regards to the comment that adopting the HAU could subject permit holders on a water body to discharge limits at or below background levels in the receiving waters , EPA observes that permits must include limits as stringe nt as necessary to meet WQS, and that EPA policy acknowledges that states and authorized tribes may establish site

- specific or generally applicable aquatic life criteria equal to natural background conditions. EPA is unable to say, at this point, h ow state s will implement their permitting programs in the future in light of this requirement (e.g., states could derive limits equal to criteria at end

- of

- pipe, or higher limits based on dilution and/or a mixing zone, include a compliance schedule (CS)

, adopt a v ariance, implement trading, among other options) . Thus, this comment is outside the scope of this rulemaking action.

EPA acknowledges the comment that it should clarify that a high quality antidegradation review (i.e., a “Tier 2” review) is not required in states that apply antidegradation review on a waterbody

- by

waterbody basis with respect to a “highest attainable use” and the supporting criteria that are established after a UAA or variance. EPA is unclear how the commenter is connecting the HAU with Tie r 2 reviews. Tier 2 reviews are conducted where waters quality exceeds levels necessary to support the uses specified in section 101(a)(2) of the Act

. If a state or authorized tribe decides that a particular water body is not a Tier 2 water based on the wa terbody

- by

- waterbody approach

, then a Tier 2 review is not required. Alternately, a state or authorized tribe could decide the water gets Tier 2 protection, and conduct a Tier 2 review for parameters with assimilative capacity because levels exceed that ne cessary to support the uses specified in CWA section 101(a)(2)

. Please see response essay 7.d.i and 7.d.ii for additional discussion on identification of high qual ity waters and 7.d.iii for additional discussion on conducting Tier 2 reviews.

One commenter argues that the term “sound scientific rationale” in section 131.5(a)(2) is an ambiguous and subjective point of reference and may interfere with the ability of states and authorized tribes to

use n arrative criteria. For a response to this comment, please see response essay 10.a.

For a response to comments regarding the criteria to protect the HAU, please see response essay 5.f.ii.

For a response to comments that an HAU is unnecessary in instances where a UAA (or varia nce) is based

on section 131.10(g)(6) because states and authorized tribes would still impose technology

- based limitations , please see response essay 5.f.i.

For a r esponse to comments that the HAU requirement should not be finalized, please see the preambl e at section II.B for an explanation for why EPA is finalizing this requirement.

In response to commenters suggesting that designating a water for a use specified in section 101(a)(2) would interfere with a state’s or authorized tribe’s ability to designate an industrial use, EPA disagrees. EPA’s rule allows states and authorized tribes to designate waters for both the uses specified in section 101(a)(2) and an industrial use or any other non 101(a)(2) uses, consistent with EPA’s regulation, if such

uses ar e appropriate.Chapter 3 – Response Essays 5.f – DU – HAU



## Essay **5.f – Designated Use**  **s: HAU** 

With regards to the commenter who stated that the definition of highest attainable use ( HAU ) , as proposed, could result in litigation over what is the HAU

, the U.S. Environmental Protection Agency ( EPA ) notes that the final rule defines HAU as the “modified aquatic life, wildlife, or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, based on the evaluation of the factor(s) in § 131.10(g) that preclude(s) attainment of the use and any other information or analyses that were used to evaluation attainability. There is no required highest attainable use where the State demonstrates the relevant use specified in section 101(a)(2) of the Act and sub

- categories of such a u se are not attainable.” This definition includes specific terms to ensure that the resulting HAU is clear to states, authorized tribes, stakeholders and the public. EPA revised the definition taking into account the reasons for why commenters felt there ma y be more litigation, such as ambiguity and/or subjectivity. EPA revised the definition to focus on the analysis done as part of the use attainability analysis ( UAA ) and how that informs the HAU. For additional discussion on this topic, see

response essay 5.e , as well as section II.B of the preamble to the final rule

.
For comments regarding how much discretion states and authorized tribes have when determining the appropriate HAU, please see response essays 5.e., 5.f.i

, and 5.g. as well as section II.B of t he preamble to the final rule.

For questions or comments regarding the different approaches a state or authorized tribe can utilize when adopting the HAU and whether there is an exclusive list or whether the examples EPA provided

are non

- exclusive, please see response essay 5.f.i.Chapter 3 – Response Essays 5.f.i – DU – Adopting HAU



## Essay **5. f.i**  **– Designated Uses: Adopting**  **HAU**

**A. General**  **C omments** 

The U.S. Environmental Protection Agency ( EPA ) acknowledges and appreciates the general support expressed by several commenters for the requirement in the final rule to adopt the highest attainable use ( HAU ) , once a required use attainability analysis ( UAA ) is conducted per section 131.10(j).

With regard to the comment that the requirement to adopt the HAU requires states and authorized tribes to expend limited resources to rebut the presu mption of attainability, EPA clarifies that states and authorized tribes are only required to adopt the HAU when they adopt new or revised water quality standards ( WQS ) based on a required UAA per section 131.10(j)

. EPA does not and cannot force a state

or authorized tribe to conduct a UAA in order to downgrade its designated uses. Such a decision is at the discretion of the state or authorized tribe. For additional discussion on the rebuttable presumption, see response essay 5.i.

EPA disagrees with the com ment that waters may be subject to HAU designations regardless of the circumstances of individual water bodies. The requirement to adopt the HAU is not a universal requirement, but rather is limited to instances when states and authorized tribes conduct a UAA per section 131.10(j). Furthermore, i n t he final rule , EPA specifically links the HAU to an “evaluation of the factor(s) in § 131.10(g) that preclude(s) attainment of the use and any other information or analy ses that were used to evaluate attainability.” Therefore, identification and adoption of the HAU is not a subjective decision. For additional discussion on this topic, see response essay 5.e.

With regard to the comment that EPA should not place new regulatory hurdles before states and authorized tribes that are trying to accommodate natural conditions into their regulatory schemes, EPA added the following language to the preamble to the final rule: “The CWA does not require states and authorized tribes to adopt designated uses to protec t a level beyond what is naturally occurring in the water body. Therefore, a state’s or authorized tribe’s determination of the HAU must take into consideration the naturally expected condition for the water body or waterbody segment.” See s ection II.B of the preamble to the final rule.

With regard to the comment that EPA should require sufficient clarity about designated uses, in particular those uses that are not recreationally or commercially important, the commenter did not provide any recommendations f or what constitutes “sufficient” clarity for designated uses. However, EPA notes that the Clean Water Act ( CWA ) creates a partnership between states, authorized tribes and EPA by assigning states and authorized tribes the primary role of adopting WQS (CWA sections 101(b) and 303) and EPA an oversight role.

With regard to the comment that the HAU requirement is unnecessary in instances where a UAA (or variance) is based on section 131.10(g)(6) because states and authorized tribes would still impose technolog y- based limitations

. EPA disagree s that technology based limitation s established consistent with CWA section 301(b) and 306 will always equate to the HAU

. In instances where a state or authorized tribe has shown that attaining the designated use will cause a substantial and widespread social and economic impact, it is possible that the HAU will be achieved by implementing technologyChapter 3 – Response Essays 5.f.i – DU – Adopting HAU

base d limits. However, there may be situations where the HAU is something better than what can be achieved by technology based limitations.



### B. **Definition of Highest Attainable Use** 

EPA agrees with comments that the proposed definition of HAU could be viewed as ambiguous, use s overly subjective terminology (e.g., “highest” attainable use), may unintentionally imply a hierarchy of

uses, and could result in litigation over whether the HAU was properly selected. EPA disagrees with the comments that EPA should revise the definition of HAU to specifically provide states and authorized tribes with discretion to identify the HAU that they determine to be most appropriate using best professional judgement (BPJ) , as well as discretion to determine what constitutes “best available data.”
For EPA’s response to these comments, see response essay 5.e.



### C. **Adopting the Highest Attainable Use** 

Several commenters expressed support for the proposed rule language in section 131.10(g) allowing states and authorized tribes discretion to utilize their current use categories or sub

- categories, develop new use categor ies or sub

- categories, or adopt another use which may include a location

- specific use. These approaches are still available to states and authorized tribes, as well as a fourth approach outlined in the preamble to the final rule; however, EPA notes that this particular sentence has been removed from the final rule language in section 131.10(g). Instead, the preamble to the final rule emphasizes that states and authorized tribes are not limited by the examples provided in the preamble and can choose a different approach that aligns with their specific needs, as long as their preferred approach is protective of the HAU and is consistent with the CWA and section 131.10. The preamble to the proposed rule also provides several specific examples of how states have articulated the HAU in their regulations. It is reasonable for EPA to finalize this rule language because the CWA provides states and authorized tribes the discretion to determine the best way to meet the CWA and regulatory requirements. As discussed in the preambles to the proposed rule and the final rule, EPA is not interested in dictating how the state or authorized tribe manages its designated use structures but is only concerned that the states or authorized tribes are consistent with the CWA and regu latory requirements before EPA can approve any WQS revision. EPA’s HAU requirement builds on the already established UAA process that states and authorized tribes must go through to remove or revise a use specified in CWA section 101(a)(2) or subcategory o f such a use. Thus, once states and authorized tribes identify that a use specified in CWA section 101(a)(2) or a subcategory of such a use is not attainable, it uses the same information to show what it is attainable. Defining HAU in this way is efficient because states and authorized tribes are using the same analysis and information when determining what WQS to remove and what WQS to adopt. In addition, it also provides EPA with an objective standard by which to review state/authorized tribal WQS revisio ns. This approach ensures that states’/authorized tribes’ WQS continue to serve the objective and goals of the Act to exercise its oversight role to approve or disapprove WQS. For additional discussion on this topic, see response essay 5.g.

As stated above, EPA deleted the last sentence in the proposed revisions to section 131.10(g): “To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location specific use.” A number of commenters expressed concern that this sentence implied that states and authorized tribes were limited to these three specific options for articulating the HAU, and would be unable to articulate the HAU in a different way. This was not EPA’s intent; rather, EPA’s intent is to provide states and authorized tribes with discretion to pick an option for articulating the HAU that worksChapter 3 – Response Essays 5.f.i – DU – Adopting HAU

best f or them, provided that the selected option still meets the HA U requirement. In addition, in considering this issue further, EPA realized the proposed regulatory language could result in states or authorized tribes not adopting a modified 101(a)(2) use even if attainable if the state’s or tribe’s existing use categor ization schemes did not include such a modified use. EPA’s position is that such a result would not be consistent with the purpose and objectives of the HAU requirement. As discussed in the preamble to the proposed rule, meeting the HAU requirement may not require modifications to their statewide/authorized tribe

- wide use categorization schemes as long as the state or authorized tribe meets the HAU requirement.

With regard to the comment that, in the context of articulating the HAU, EPA should drop its impl ied encouragement to states and authorized tribes to make water quality impairments more or less permanent (e.g., “CSO

- impacted use”), EPA disagrees. EPA is not encouraging states and authorized tribes to make water quality impairments permanent, but rather is offering an option where a state or authorized tribe may adopt a new sub

- category of a use that uniquely recognizes the limiting condition for a specific water body, should such sub

- category be justified through an appropriate UAA per sections 131.10( g) and (j).

With regard to the comment that EPA should clarify that states seeking to downgrade designated uses must establish the HAU even if that means establishing new use categories, as well as the comment that EPA should clarify that states and authorized tribes are required to adopt a location

- specific use or develop new use categories if existing use categories or sub

- categories are insufficient to protect the HAU, EPA includes the following language in the preamble to the final rule: “Where a state or authorized tribe does not already have a statewide use in their regulation that is protective of the HAU, the state or authorized tribe will need to find an approach that meets th e requirements of the CWA and § 131.10(g).”

With regard to the comment req uesting clarification on the difference between site

- specific criteria and a location

- specific use , a site

- specific criterion is designed to protect the current, unchanged designated use, but the criterion value may be different from the statewide or other wise applicable criterion because it is tailored to account for site

- specific conditions. A location

- specific use, on the other hand, is best described as a new sub

- category of a use that uniquely recognizes the limiting condition for a specific water body . For example, an “aquatic life use limited by naturally high levels of copper” is a location

- specific use that describes a water body where the statewide copper criterion that protects for the aquatic life use is not attainable, but criteria for all other pollutants are still being attained.

EPA disagrees with the comment that the concept of HAU implies that there is always an attainable use. The final regulation does not prohibit states and authorized tribes from removing a designated use specified in CWA section 101(a)(2) or a subcategory of such a use, altogether, where demonstrated to be unattainable. For example, a state or authorized tribe may remove an aquatic life use if it can demonstrate through a UAA that no aquatic life use or subcategory of aquatic life use is attainable. EPA expects such situations to be rare; however, to clarify that this outcome is possible, EPA adds the following to the definition of HAU in the final rule at section 131.3(m): “There is no highest attainable use where the State [or authorized tribe] demonstrates the relevant use specified in section 101(a)(2) of the Act and subcategories of such a use are not attainable.”

EPA disagrees with the comment that identifying the HAU requires a significant amount of additional data, such an evaluation of non WQS

- related parameters including basin geomorphic processes, landscape assessments, and hydrologic modeling. EPA added the phrase “based on the evaluation of theChapter 3 – Response Essays 5.f.i – DU – Adopting HAU

fac tor(s) in § 131.10(g) that preclude(s) attainment of the use and any other information or analyses that were used to evaluate attainability” to the definition of HAU in the final rule to clarify that the HAU is the use that results from the process of determining what is attainable, and is unrelated to an evaluation of non WQS

- related parameters.

EPA disagrees with the comment that developing new use categories and associated water quality criteria could be overly burdensome, and states are essentially being required to develop unique water quality criteria for each use change. For additional discussion on this topic, see response essay 5.e.

EPA disagrees with the comment that adopting the HAU requires states and authorized tribes to take UAAs to a species

- specific level , and/or adopt finely divided subcategories . How det ailed a state or authorized tribe wishes its designated uses to be is solely at the discretion of the state or authorized tribe, as long as the use reflects the HAU consistent with EPA requirements

. With regard to the comment that it is unclear what use a state or authorized tribe will be compelled to adopt as the HAU if the state or authorized tribe only has broad use categories, EPA provided several examples in the preamble to the proposed rule of how a state or authorized tribe may articulate the HAU (i. e., using an existing designated use category, adopting a new statewide sub

- category, or adopting a new sub

category of a use that uniquely recognizes the limiting condition for a specific water body). In the preamble to the final rule, EPA provides a four th alternative to articulate the HAU (i.e., essentially articulating that the HAU reflects whatever use is attained when the most protective, attainable criteria are achieved). EPA also provides , in the preamble to the final rule, several additional, real life examples of how states and authorized tribes have articulated the HAU, and clarifies that states and authorized tribes are not limited by the provided examples and can choose a different approach that aligns with their specific needs, as long as their preferred approach is protective of the HAU and is consistent with the CWA and section 131.10. For additional response to this comment, see response essay 5.e.

EPA both agrees and disagrees with the commenter s who question the need to create new sub

categ ories of designated uses when adopting the HAU. States and authorized tribes have discretion in choosing the best approach to articulate the HAU, provided the approach is consistent with the CWA and section 131.10. If a state or authorized tribe has an app ropriate sub

- category in their designated use framework that protects for the HAU, then a new sub

- category is not necessary. However, EPA clarifies that where a state or authorized tribe does not already have a use in their regulation that is protective of the HAU, the state or authorized tribe will need to find an approach that meets the requirements of the CWA and section 131.10(g)

.

One commenter provide d edits to the suggested approaches outlined in the preamble for how states and authorized tribes can a rticulate the HAU. EPA reiterates that these approaches are only examples, and states and authorized tribes have flexibility in choosing their preferred approach, provided that the approach is protective of the HAU and is consistent with the CWA and section 131.10. EPA also notes that it provides a fourth suggested approach for articulating the HAU in the preamble to the final rule , as well as some examples of how states have protected the HAU in specific circumstances (e.g., effluent dependent waters and tailoring site

- specific criteria to protect the HAU). See section II.B of the preamble to the final rule for additional discussion

.Chapter 3 – Response Essays 5.f.i – DU – Adopting HAU

EPA disagrees with commenters that argue that predicting what is attainable in the future, after achievable gains in water quality are considered, places an impossible burden on states, authorized tribes, and regulated stakeholder s. EPA also disagrees with commenters that states and authorized tribes should not be required to look at future attainable uses based on things such as the potential effectiveness of best management practices (BMPs)

. Based on comments received, EPA recognizes that its preamble to the proposed rule may have created some confusion regarding this issue. EPA’s preamble to the proposed rule said “When conducting this review and soliciting input from the public states and tribes should consider not only what is currently attained...” (See 78 FR 54523

– 24 , September 4, 2013 ) [emphasis added]. To be clear, EPA’s final rule does not place a new requirement to “predict what is attainable in the future”. The notion that considering attainability involves a prospective analysis has long been a part of EPA’s prior existing regulations. EPA’s definition of designated use at section 131.3(f), untouched by today’s rul e, defines designated uses as “those uses specified in water quality standards for each water body or segment whether or not they are being attained.” The fundamental component of 131.10(g), unchanged by today’s rule, requires that a state or authorized tr ibe demonstrate that “attaining the designated use is not feasible” based on one of the six regulatory factors. When discussing the factors at 131.10(g), EPA explained in its 1998 Advance Notice of Proposed Rulemaking (ANPRM) that “[t]he use removal criter ia were included in the regulation to address those circumstances where the attainability of certain uses would be precluded by conditions over which the water quality protection provisions in the regulation had little or no control.” Water Quality Standar ds Regulations: Advance Notice of Proposed Rulemaking, 63 Fed. Reg. 36742, 36754 (July 7, 1998). Therefore, it is reasonable to interpret the words “attaining the designated use is not feasible” as indicating that this evaluation is forward looking to confirm that there are no additional steps available in the future to address the relevant conditions before removing protections for those goals on a relatively permanent basis. 1 EPA notes that it’s interpretation is also supp orted by 131.10(d) and (h)(2) that discusses attainability as those uses that “can be achieved” or “will be attained” by imposing technology requirements and cost effective and reasonable BMPs. To ensure clarity, EPA’s preamble to the final rule says: “Whe n conducting a UAA and soliciting input from the public, states and authorized tribes need to consider not only what is currently attained ...” [emphasis added].

In its 1998 ANRM, EPA explained that the prior existing requirements at section 131.10(g):

[M]ake a distinction between existing and designated uses and set out specific requirements to ensure protection of these two broad use categories. Designated uses are defined as those uses specified in water quality standards for each water body or segment whet her or not they are being attained. EPA interprets existing uses as those uses actually attained in the water body on or after November 28, 1975 (the date of EPA's initial water quality standards regulation), whether or not they are included in water quali ty standards. 40 CFR 131.3(e). Designated uses focus on the attainable condition while existing uses focus on the past or present condition. Section 131.10 then links these two broad use categories in a manner which intends to ensure that States and Tribes designate appropriate water uses, reflecting both the existing and attainable uses of each water body...

1 Use changes are not strictly permanent because section 131.20(a) requires states and authorized tribes to reevaluate waterbody segments that do not include the uses specified in section 101(a)(2) of the Act to determine if new information has become available indicating that such uses are attainable. If so, then states and authorized tribes are requ ired to revise their WQS accordingly.Chapter 3 – Response Essays 5.f.i – DU – Adopting HAU

It is in designating uses that States and Tribes establish the environmental goals for their water resources, and it is in designating uses that States and Tribes are allowed to evaluate the attainability of those goals. Because water quality standards perform the dual function of establishing water quality goals and ultimately serving as the regulatory basis for water quality

based treatment controls and strategies, typically, although not exclusively, via water quality criteria protecting those uses, a State or Tribe often weighs the environmental, social and
economic consequences of its decisions in designating uses. The regulation allows the State or
T ribe some flexibility in weighing these considerations and adjusting these goals over time. Reaching a conclusion on the uses that appropriately reflect the potential for a water body, determining the attainability of those goals, and appropriately evaluat ing the consequences of a designation, however, can be a difficult and controversial task. Appropriate application of this process involves a balancing of environmental, scientific, technical, and economic and social considerations as well as public opinion and is therefore one of the most challenging areas of the current regulation.

To direct this decision making

- process, the regulation establishes requirements that must be followed when designating uses or concluding that attaining a use is infeasible. When performing this attainability analysis, a State or Tribe considers physical, chemical, biological and economic factors that may limit the potential for achieving the goal use.

This clear differentiation articulated in the first paragraph shows that ex isting uses are about the past and the present whereas designated uses are about the future desired conditions for a water that may or may not be currently attained. The use of the term “potential” also makes clear that the evaluation of attainability has never been limited to what is attainable currently.

This approach is reasonable because WQS apply to the water body as a whole, regardless of the source of pollution. Therefore, because both point and nonpoint sources (NPS) of pollution can affect use

atta inability, it is important for states and authorized tribes to evaluate the impact that both point and
NPS controls might have on water quality prior to removing a use. When determining whether a designated use is attainable, states and authorized tribes n eed to consider whether the use could be attained by implementation of cost

- effective and reasonable BMPs for NPS controls water body wide. This does not mean that the regulations require implementation of such BMPs. Regulation of NPS remains at the discretion of states and authorized tribes. However, this choice does not negate the requirements of the CWA and regulation which is why the establishment of WQS is not affected by this choice nor is the assessment of whether a water is meeting its WQS consisten t with CWA section 303(d). For additional discussion, see 78 FR 54535, 54536 , September 4, 2013

.Chapter 3 – Response Essays 5.f.i – DU – Adopting HAU

In establishing goals , states and authorized tribes consider not only what is attainable now, but what objectives they may have for a water body in the future. When removing or revising designated uses that reflect uses specified in section 101(a)(2) of the Act or subcategories of such uses, the UAA identifies issues that limit the potential of that water body to meet its designated use, consistent with
section 131.10. EPA’s definition of HAU at section 131.3(m) clearly links the identification of the HAU to this analysis of attainability and thus it is an inherent function of the process that the HAU identifies the projected potential for the water body. As disc ussed earlier, the notion of evaluating the potential attainability of a water is not a new requirement and thus the addition of the HAU requirement should not significantly increase the burden of the use revision process. Any incremental burden associated with the HAU requirement has been accounted for in EPA economic analysis (EA)

. Please see EPA’s EA and an explanation for how EPA derived its cost and burden estimates are documented in the Economic Analysis for the Water Quality Standards Regulatory Revi sions (Final Rule) and can be found in the docket for this rule. For additional discussion on burden, see response essay 12.a. States have a variety of options available to them when determining the HAU

. See EPA’s preamble to the final rule for additional discussion. For additional discussion on the highest attainable condition (HAC) , see response essay 8.c which discusses the HAC in the context of WQS variances.

EPA agrees with the comment that the requirement to identify the HAU is tied exclusively to the UAA

process. EPA refers c ommenter s to the final rule text at section 131.10(g), which provides “if a State adopts a new or revised water quality standard based on a required use attainability analysis, the State shall also adopt the highest attainable use, as defined in §131.3(m) .” A UAA is defined under EPA’s regulations as “a structured scientific assessment of the factors affecting the attainment of the use which may include physical, chemical, biological and economic factors as described in 131.10(g).”

With regard to the comment t hat the final rule requires states and authorized tribes to designate the HAU without inclusion of agricultural interests, EPA clarifies that the HAU is established without regard to the source of pot ential pollution (e.g. point source or NPS such as agriculture). Once the HAU is adopted, it is the state’s or authorized tribe’s responsibility to determine how best to achieve the applicable designated use. If the commenter is also commenting that the HA U should not apply where the state or authorized tribe is removing or revising an agricultural designated use, EPA clarifies that t he definition of HAU in the final rule specifies that the HAU is the “modified aquatic life, wildlife, or
recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable....” (emphasis added). Furthermore, states and authorized tribes are only required to adopt the HAU when they conduct a UAA as specified in section 131.10(j). EPA recognize s that there may be instances where a state or authorized tribe removes the designated use, altogether, and in the same action adopts another designated use in a different broad use category (e.g., agricultural use). It may appear as though the state or au thorized tribe intends the newly adopted use to be the HAU , when in fact this is a separate state or authorized tribal decision in the same rulemaking. For additional discussion on this topic, see response essays 5.g and 5.h.

EPA disagrees with the comment that the preamble to the proposed rule was unclear in terms of the problem the proposed amendments related to adopting the HAU were intended to address. The commenter only provided a comment that the commenter disagreed with any suggestion that states are “downgrading waters to avoid having to develop TMDLs. ” EPA provided its rationale for the revisions in the preamble to the proposed rule (78 FR 54523

- 54525 , September 4, 2013 ) , and its rationale does not include the one that the commenter addresses

. Please also see the preamble to the final rule for discussion on EPA’s rationale for the HAU requirement.Chapter 3 – Response Essays 5.f.i – DU – Adopting HAU

EPA received a comment that said “The Proposed Rule s hould be revised to clarify that states are only required to apply a HAU for the purpose of determining whether some sub

- category of aquatic or recreational use may be adopted in those circumstances when a State is using a UAA to remove an aquatic or recreational use.” EPA wishes to clarify here that the language in section 131.10(g) of the final rule clearly specifies that the HAU is required when states and authorized tribes adopt a new or revised WQS based on a required UAA per section 131.10(j). Section 131.10(j) requires a UAA in scenarios where a state or authorized tribe is removing a use specified in section 101(a)(2) of the CWA or a sub

- category of such use, as well as where a state or authorized tribe is designating a use for the first time that do es
not include the uses specified in section 101(a)(2) of the Act

. If a state or authorized tribe is designating a use specified in section 101(a)(2) of the Act for the first time, a UAA is not required and therefore the HAU requirement does not apply. EPA ’s preamble to the proposed rule and final rule also makes clear what EPA means by “uses specified in section 101(a)(2) of the Act” or “subcategories of uses specified in section 101(a)(2) of the Act. ” Specifically, EPA’s final rule preamble says “ For the purposes of today’s final rule, the phrase “uses specified in section 101(a)(2) of the Act ” refers to uses that provide for the protection and propagation of fish

, 2 shellfish, and wildlife, and recreation in and on the water, as well as for the protection of human health when consuming fish, shellfish, and other aquatic life. A “sub

category of a use specified in section 101(a)(2) of the Act” refers to any use that reflects the subdivision of uses specified in section 101(a)(2) of the Act into smaller, more homogenous groups for the purposes of reducing variability within the group. ” 3

With reg ard to the comment requesting more clarity on how the HAU should be determined for ephemeral streams

, EPA provides an example in the preamble to the final rule that is specific to effluent dependent waters. With regard to the comment requesting more clarity on the factors that should be considered in determining whether aquatic life support can be reasonably attained in intermittent streams, EPA did not propose or finali ze any changes to the factors specified in section 131.10(g); therefore, this comment is outside the scope of this rulemaking. However, EPA notes that t he final regulation does not prohibit states and authorized tribes from removing a designated use specified in CWA section 101(a)(2) or a subcategory of such a use, altogether, where demonstrated to be unattainable. For example, a state or authorized tribe may remove an aquatic life use if it can demonstrate through a UAA that no aquatic life use or subcateg ory of aquatic life use is attainable. For purposes of this regulation, states and authorized tribes either consider there to be no aquatic life HAU or that the HAU is “no aquatic life use.” Again, EPA expects such situations to be rare; however, to clarif y that this outcome is possible, EPA adds the following to the definition of HAU in the final rule at section 131.3(m): “There is no highest attainable use where the State [or authorized tribe] demonstrates the relevant use specified in section 101(a)(2) o f the Act and subcategories of such a use are not attainable.”

2 To achieve the CWA’s goal of “wherever attainable...protection and propagation of fish...,” all aquatic life, including aquatic invertebrates, must be protected because they are a crit ical component of the food web.

3 A sub

- category of a use specified in section 101(a)(2) of the Act is not necessarily less protective than a use specified in section 101(a)(2) of the Act. For example, a cold water aquatic life use is considered a use sub

category, but provides “for the p rotection and propagation of fish, shellfish and wildlife,” consistent with CWA section 101(a)(2). On the other hand, a secondary contact recreation use (i.e., a use, such as wading or boating, where there is a low likelihood of full body immersion in wate r or incidental ingestion of water) is considered a use sub

- category, but does not provide “for recreation in and on the water,” consistent with CWA section 101(a)(2).Chapter 3 – Response Essays 5.f.i – DU – Adopting HAU

With regard to the comment that adopting the HAU for ephemeral and intermittent headwater habitat streams will be problematic as naturally expected populations aren’t easily defined, and vary w idely among seemingly comparable sites, EPA clarifies that how detailed a state or authorized tribe wishes to be with its designated uses is solely at the discretion of the state or authorized tribe, as long as the use reflects the HAU consistent with CWA requirements and EPA’s implementing regulation

.
With regard to comments that EPA’s regulatory revisions prohibit the ability of states and authorized tribes to consider “use and value” when designating and managing their waters, please see response

essays 5.k. and 5.i.



### D. **Use Attainability A nalyses** 

EPA received comments that suggested EPA approved UAAs. EPA clarifies that it does not approve or disapprove UAAs, but rather evaluates the UAAs and approves or disapproves revisions to a state’s or authorized tribe’s designated uses based on its evaluation . EPA also notes it does not and cannot force a state or authorized tribe to downgrade its designated uses. Such decisions are at the discretion of the state or authorized tribe. EPA also cannot force a state or authorized tribe to conduct a UAA if it is not required by section 131.10(j).

EPA disagrees that the final rule is inconsistent with its March 2006 memorandum issued by Ephraim King on “Improving the Effectiveness of the Use Attainability Analysis (UAA) P rocess

. ” For additional discussion on this topic, see response essay 5.b.

EPA disagrees with the comment that a UAA based on section 131.10(g)(3) (“human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place...”) could prevent th e HAU from being identified and adopted, due to the cost or consequences to an existing point source. If a state or authorized tribe removes a use specified in secti on 101(a)(2) of the Act based on section 131.10(g)(3), it would still be required to adopt the highest degree of the use that is attainable in light of the human caused conditions or sources of pollution. In addition, cost is not considered under section 1 31.10(g)(3).

EPA’s requirement for the HAU remains consistent with the intent of the 1983 preamble to the final rule which said “A State need only conduct a use attainability once for a given water body and set of uses.” EPA maintains this policy statement, but it is important to recognize that if a state or authorized tribe revises the applicable designated uses, then it is a new “set of uses” and a UAA may indeed be required

per section 131.10(j).



### E. **Burden**

EPA disagrees with the comment that the UAA process is overly burdensome and complex. EPA has approved use changes supported by UAAs that range from simple to complex. For additional discussion on this topic, see response essay 5.j.

EPA received many comments suggestin g that EPA underestimated the burden and cost of the proposed rule. States specifically requested to meet with EPA to provide additional information for EPA to consider. EPA engaged the states, as requested, and incorporated the information provided into i ts final
EA . EPA’s EA and an explanation for how EPA derived its cost and burden estimates are documented inChapter 3 – Response Essays 5.f.i – DU – Adopting HAU

the Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule) and can be found in the docket for this rule. For additiona l discussion on burden, see response essay 12.a.



### F. **Other**

EPA disagrees with the comment that the proposed rule does not alleviate concerns related to the identification and implementation of the HAU that were raised during the August 2010 public listening sessions. The goal of these informal listening sessions was to inform the public about the rulemaking and receive input on changes EPA was considering at that time , not to accept formal public comments on the proposed rule . Participants at the public list ening sessions were reminded that any comments or concerns expressed during the sessions needed to be resubmitted to EPA during the public comment period in order to be formally considered as part of the rulemaking effort. To the extent comments raised in the August 2010 public listening session were also identified in formal comments, EPA has addressed them as part of these response to comments.

One commenter provided a state

- specific example of how agency approval of a UAA would be subject to third party legal challenges at both the state and federal levels. This comment is outside the scope of this rulemaking.

With regard to the commen t that the choice of a HAU should involve identifying the current and expected condition for a water body, yet by failing to mention the role of existing uses and the water quality necessary to support them, EPA is implying that a water body degraded since 1975 can be evaluated in its present state without regards to its 40 year old history, EPA disagrees. States and authoriz ed tribes may not remove designated uses if they are existing uses, per section 131.10(h)(1), and the final rule does not in any way modify or revise this requirement. Therefore, if a state or authorized tribe is adopting a HAU in lieu of an unattainable u se, it must have already considered whether removal of the unattainable use would remove an existing use and already demonstrated that it had a basis to remove protection for the un attainable use

.
EPA disagrees with the comment that the final rule is requiring states and authorized tribes to review HAUs during triennial reviews. EPA recommends states and authorized tribes consider the HAU during a triennial review. Should they decide that – as a result of their review – a revision to WQS is necessary such t hat a UAA is required per section 131.10(j)

, the adoption of the HAU would also be required per the final rule language at section 131.10(g). EPA also disagrees with the comment that the use of the word “should” rather than “must” in the preamble to the pr oposed rule undermines the intent of the proposed rule (i.e., “...EPA recommends that states and tribes consider the HAU during a triennial
review. If new information becomes available during a triennial review to indicate that the uses specified in 101(a)(2 ) are attainable, then §131.20(a) requires that “the State shall revise its standards accordingly.” If new information becomes available during a triennial review to indicate that a use higher than what is currently designated is attainable but the uses specified in section 101(a)(2) of the Act are still unattainable , states and tribes should revise their WQS to reflect the HAU ...” (78 FR 54524

, September 4, 2013 ))

. EPA considered requiring states and authorized tribes to always adopt the HAU in section 131.20(a) as part of their triennial review process; however, in an effort to limit the burden on states and authorized tribes EPA instead limited the HAU requirement to only instances where a UAA is required per section 131.10(j). EPA does not believe such a provision is counter to the goals of the CWA because EPA’s regulation at section 131.10(i) also requires that “where existing water quality standards specify designated uses less than those which are presently being attained, the State shall revise its standards to reflect the uses actually being attained.” Title 40 of the Code of Federal Regulations ( CFR )Chapter 3 – Response Essays 5.f.i – DU – Adopting HAU

secti on 131.20(a) clearly requires states and authorized tribes to revise their WQS in instances where new information indicates that uses specified in section 101(a)(2) of the Act are attainable; therefore, EPA does not view the word “should” as being in conflict.

EPA disagrees with the comment that the requirement to adopt the HAU could have the unintended consequence of requiring states a nd authorized tribes to adopt drinking water standards (or to justify not adopting drinking water standards) every time a state or authorized tribe revises its WQS

. The requirement to adopt the HAU only applies to the uses specified in section 101(a)(2) of the Act, or sub

categories of such uses. EPA refers commenters to the definition of HAU at section 131.3(m) of the final rule. A public water supply use is a non 101(a)(2) use. Commenter is referred to section 131.10(g) and (j) of the final rule, which li mits the HAU requirement to instances when a UAA is required in section 131.10(j), and section 131.3(q) of the final rule, which defines a non 101(a)(2) use.

One commenter requested that EPA clarify the following language from the proposal: “where uses specified in section 101(a)(2) are unattainable, it is important that states and authorized tribes still strive to attain uses that continue to serve the purposes of the Act and also enhance the quality of the water.” As part of the UAA process, a state or authorized tribe may be able to demonstrate that a particular class of aquatic life is not attainable; however, if some less sensitive aquatic organisms are able to survive at the site unde r current or attainable future conditions, the goals of the CWA are not served by simply removing the aquatic life use designation and applicable criteria without determining where there is some alternate 101(a)(2) use or subcategory of such a use that is feasible to attain.

One commenter stated that the language in the final rule expands EPA’s CWA authority to regulate NPS pollution through evaluation and use of BMPs. EPA’s requirement at section 131.10(d) existed prior to this action to revise EPA’s rule, and EPA did not propose any revisions to this provision or how NPS BMPs relate to the designation of uses. Therefore, this comment is outside the scope of this rulemaking

.

One commenter suggeste d that EPA c larify that the impacts of combined sewer overflows ( CSOs ) can be stopped and mitigated; for example, by separating stormwater and sewer lines. This comment is outside the scope of this rulemaking.

EPA agrees with the comment that states and au thorized tribes should have the authority to determine and assign appropriate uses and accompanying WQS , and not the EPA. States and authorized tribes continue to have the primary responsibility for establishing categories of designated uses, assigning tho se uses to specific water bodies within their jurisdiction, and determining how to best satisfy the requirements of the regulation.

With regard to the comment that EPA should clarify when uses associated with human health criteria are considered 101(a)(2) uses, EPA interprets CWA section 101(a)(2) to include the protection of human health when consuming fish and shellfish. This is consistent with the language, purposes, and structure of the CWA. CWA section 303(c)(2)(A) requires that WQS protect public heal th and CWA section 101(a)(2) establishes the broad goal of “...protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water...” Given the breadth of this goal, EPA has implemented section 101(a)(2) to refer not on ly to protecting water quality so the fish and shellfish thrive, but also to protect them as a food source. Thus, to be consistent with section 101(a)(2), the applicable designated uses must not only protect the aquatic organisms themselves, but also prote ct consumers of the aquatic organisms from the accumulation of pollutants to levels that result in unacceptable risk to humanChapter 3 – Response Essays 5.f.i – DU – Adopting HAU

health. S tates and authorized tribes should consider local consumption practices when determining the appropriate consumption rate that is used to meet that level of protection.

EPA h as r eflected this i nterpretation i n s everal p ast actions a nd s tatements. In t he N ational T oxics R ule,
40 CFR section 131.32, E PA p romulgated n umeric h uman h ealth c riteria for toxic pollutants in water bo dies d esignated f or an a quatic life u se w ith a potential consumption e xposure route fo r any s tate o r tribe t hat d id n ot h ave s uch c riteria. EPA p romulgated t hese criteria t o p rotect human h ealth i f h umans might c onsume any fis h o r shellfish in t hese w aters

. EPA als o s aid that if a s tate or tribe w ishes t o demonstrate t hat a waterbody s egment d esignated f or aquatic life u se d oes n ot s upport fis h or shellfish consumption a nd d oes n ot require human h ealth c riteria, th en th e sta te or trib e mus t complete a UAA. This UA A must d emonstrate w hy it is in feasible t o at tain a use t hat p rovides fo r fi sh an d s hellfish consumption b y h umans c onsistent w ith E PA’s r egulations a t 4 0 CFR section 131.10. 4 EPA h as d escribed thi s p osition i n various p ublic d ocuments ( please s ee E PA’s O ctobe r 2000 m emo on fis h an d s hellfish advisories an d 303(d) lis ts ( WQSP -0 0 -0 3, O ctober 2 4, 2000, http://www.epa.gov/ scitech / swguidance /standards/ upload/2000_10_31_standards_ shellfish.pdf ),
E P A’s O ctober 2 000 Human Health Methodology (EPA-822-B-00-004, and http://www.epa.gov/waterscience/criteria/humanhealth/method/complete.pdf , pages 4

- 2, 4

- 3)).

4 57 FR 60848, 60859

- 60 (December 22, 1992).Chapter 3 – Response Essays 5.f.ii – DU – Criteria for HAU



## Essay **5. f.ii**  **– Designated Uses: Criteria for**  **Protecting HA**  **U**

The final rule language at section 131.10(g) does not include the phrase “and the criteria to protect that use” that was included in the proposed rule language. The U.S. Environmental Protection Agency’s ( EPA’s ) position is that sections 131.5(a)(2), 131.6(c) and 131.11(a) already explicitly require states and authorized tribes to adopt water quality criteria that protect designated uses; therefore, it is unnecessary to repeat this requirement in the final rule language at section 131.10(g). EPA removed this phrase because some commenters were concerned that EPA’s proposal meant that states and authorized tribes must adopt the highest attainable criteria. EPA’s final rule is clear that states and

a uthorized tribes must adopt the highest attainable use (HAU) and the criteria protects this use. Please see below for additional discussion.

EPA acknowledges and appreciates the comment agreeing that it is necessary and appropriate for states and authorize d tribes to adopt criteria to protect the HAU , and stating that a specific state is allotting
time in its work plan for this effort.

With regard to comment s that states should set criteria to be protective of uses and not necessarily the
HAU , EPA agrees in part and disagrees in part. EPA agrees that t he Clean Water Act ( CWA ) and the water quality standards ( WQS ) regulation at sections 131.5(a)(2), 131.6(c) and 131.11(a) explicitly require states and authorized tribes to adopt criteria to protect designated uses

. However EPA disagrees that criteria should not be set to protect the HAU

. The HAU , once adopted, is the applicable designated use for which the CWA and regulation requires states and authorized tribes to adopt protective criteria. EPA will evaluate e ach submission independently in light of the information and analysis submitted by the state/authorized tribe to determine whether the revision is consistent with the CWA and regulation

.
EPA agrees with comments that developing water quality criteria to pr otect the HAU may be a resource

intensive undertaking, depending on a state’s or authorized tribe’s specific circumstances and available resources. EPA notes, however, that in order to meet the requirement of the CWA and implementing regulations, states and authorized tribes are not required to adopt modified criteria for every pollutant, if only one pollutant is affecting the attainability of the use. Rather, a state or authorized tribe could adopt a new sub

- category of a use that uniquely recognizes the l imiting condition for a specific water body (e.g., aquatic life limited by naturally high levels of copper). In this situation, a state or authorized tribe could adopt the highest attainable criterion for copper, and leave the criteria for all other pollut ants unchanged.

With regard to comments that the HAU approach will be limiting to states and their ability to run their WQS programs
, EPA is not providing a substantive response

. The commenter made the statement but did not explain why the HAU approach wou ld limit the ability to run their WQS programs

.
EPA disagrees with comment s that implementing the HAU will lead to the adoption of numerous new sub

- categories and associated criteria. For additional discussion on this topic, see response essay 5.e.

One com menter request ed clarity on whether a state

- specific situation regarding combined sewer overflow (CSO) related use designations that lack applicable numeric criteria are consistent with the final rule. This comment is outside the scope of the rulemaking ; t herefore, EPA is not providing a substantive response

.Chapter 3 – Response Essays 5.g – DU – Clarify 131.10 g, j, k



## Essay **5.g – Designated Use**  **s : Section**  **Clarif ications when a UAA is**  **Required ( 131.10(g), (j) and (k)**  **)**

**A. General Support** 

The U.S. Environmental Protection Agency ( EPA ) acknowledges the general support for the revisions clarifying sections 131.10(g), (j) and (k) , as well as those states and/or authorized tribes that noted they would not be affected by the revisions . Specifically, EPA appreciates the support expressed by numerous

commenter s for the modifications to section 131.10(g) clarifying that the factors listed in (g) are only required when a use attainability analysis ( UAA ) is required as specified in section 131.10(j); the modifications to 131.10(g) regarding the highest attainable use (HAU) ; the modifications to
section 131.10(j) clarify ing when a UAA is required; and the modifications to section 131.10(k) clarifying that a UAA is not needed to remove a non

- 101(a)(2) use.



### B. **General Opposition**

EPA disagrees with comment s that there is no basis for revising the designated use and use attainability provisions, and that such revisions will place an un reasonable burden on states and authorized tribes. EPA provided its general rationale for the revision s in the preamble to the proposed rule (78 FR 54523 - 54525 , September 4, 2013 ). As discussed in the preamble to the final rule, the narrowing of the UAA requirement to just instances when required in section 131.10(j) reduce s the burden on states and authorized tribes from condu cting a UAA for all designated use removals , EPA’s prior view of the regulations . Also, as explained in EPA’s preamble the final rule, the HAU requirement is the resulting attainable use after determining what is not attainable based on the evaluation of the factors and other information used to evaluate attainability. EPA’s intent with this requirement is to mitigate burden to the extent possible

, because the HAU determination would be made using the same information already required by the regulations. In addition, the regulation provides stat es and authorized tribes with discretion on how to articulate the HAU in its water quality standards ( WQS ) as long as their approach is protective of the HAU and is consistent with the Clean Water Act ( CWA ) requirements and EPA’s regulation

. See section II.B of the preamble to the final rule. For further discussion on the burdens and costs associated with the final rule, please see response essay 12.c. See also the e conomic a nalysis (EA) for the final rule i n the docket for this rulemaking.



### C. **Comments on Section**  **131.10(g)**

The final rule makes two significant changes to section 131.10(g) consistent with EPA’s proposal. First, the regulation includes an explicit reference to section 131.10(j) that clearly identifies the specific circumstances where a state or authorized tribe must conduct a UAA that demonstrates that attaining the use is not feasible because of one of the six regulatory factors. Second, the rule establishes that if the state or authorized tribe adopts a new WQS or revise d WQS based on a required UAA, it must adopt the HAU in place of the previous WQS . See essays 5. f

., 5.f.i, and 5. f.ii for additional discussion on HAU.

T oday’s final rule at section 131.10(g) differs from the proposed rule in two ways . First, the final rule contains editorial changes to section 131.10(g) as compared to the proposed rule. These editorial changes ensure that EPA is not unintentionally making substantive changes to its existing use requirements at sections 131.10(g) and (h)(1), and that the rule language separates the acts ofChapter 3 – Response Essays 5.g – DU – Clarify 131.10 g, j, k

designating and removing uses, as they relate to existing uses. Specifically, the regulation prior to the proposed revisions required that, when removing a designated use, states or authorized tr ibes first consider whether the use to be removed i s an existing use and, if so, the use could not be removed: “States may remove a designated use which is not an existing use...” However, EPA proposed changes to
section 131.10(g) that may be read to uninten tionally prohibit states and authorized tribes from removing a designated use if it removes protection for any existing use: “Pursuant to § 131.10(j), States may designate or remove a use or sub

- category of a use as long as the action does not remove prote ction for an existing use and the State can demonstrate that attaining the use is not feasible because of one of the six factors in this paragraph....” (emphasis added). Prohibiting removal of a designated use if the action removes protection for any existin g use was not EPA’s intent in the proposed rule. Instead, EPA intended to only prohibit removal of a designated use if that use is also the existing use. In addition, to better align section 131.10(g) and section 131.10(j), the final rule incorporates edit orial changes in section 131.10(g) and now reads as follows: “States may designate a use, or remove a use that is not an existing use, if the State conducts a use attainabi lity analysis....” P rior to today’s rule

, section 131.10(g) spoke only to removing a d esignated use whereas section 131.10(j)(1), speaks to the requirement to conduct a UAA whe n designating uses for the firs t time that do not include the uses specified in section 101(a)(2) of the Act. Today’s editorial revisions make both provisions paralle l and consistent

.
Second, the final rule differs from the proposed rule in that EPA deleted the last sentence in the proposed revisions to section 131.10(g): “To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location specific use.” A number of commenters expressed concern that this sentence implied that states and authorized tribes were limited to these three specific options for articulating the HAU, and would be unable to articulate the HAU in a different way. This was not EPA’s intent; rather, EPA’s intent is to provide states and authorized tribes with discretion to pick an option for articulating the HAU that works best for them, provided that the selected option st ill meets the HAU requirement. Rela ted to similar comments concerning state discretion, EPA made two related
revision s. EPA revised section 131.10(g) to include an explicit reference to the definition of HAU at 131.3(m). EPA also revised the definition to add specificity and clarify that the HAU is the use that results from the [state’s or authorized tribe’s] process of determining what is no t attainable (see response essay 5.e for discussion on the definition of HAU). For additional discussion regarding the adoption of the HAU and the available discretion to states and authorized tribes, please see response essay 5.f.i.

EPA disagrees with the comment that the proposed rule language at section 131.10(g) should be restructured using separate subsections to describe the addition and removal of designated uses. The commenter did not provide any discussion on why such restructuring should be done

. EPA refers t he commenter to the final rule language at section 131.10(g), as EPA has made a number of edits for clarity.

EPA disagrees with the comment that the addition of the phrase “Sta tes may designate a use....” in
section 131.10(g) of the final rule cr eates confusion and gives additional oversight to EPA

. In addition, b y referencing section 131.10(j) in section 131.10(g), EPA’s intent is to provide clarity for the specific circumstances a state or authorized tribe must conduct a UAA and demonstrate that the use is not feasible to attain because of one of the attainability factors at section 131.10(g) before designating, revising, or removing certain uses.

EPA disagrees with the suggested revision to section 131.10(g) that provides “States may adopt new or revised designated uses that do not protect for the uses specified in section 101(a)(2) of the Act, onlyChapter 3 – Response Essays 5.g – DU – Clarify 131.10 g, j, k

when consistent with the other provisions of § 131.10....” EPA’s intent with the specific language in the final rule in section 131.10(g) is to clearly link the requirements in section 131.10(g) to the situations when a UAA is required by section 131.10(j). The language suggested by the commenter could be read

to mean that the requirements of section 131.10(g) is independently applicable and thus a UAA using the factors listed at section 131.10(g) and the requirement to adopt the HAU is required when a state or authorized tribe adopts a new or revised non

- 101(a)(2) use since such uses “do not protect for the uses specified in secti on 101(a)(2) of the Act. ” EPA does not want to risk causing such uncertainty. EPA’s final rule revises section 131.10(j) and section 131.10(k) to clearly reflect what is required to adopt new or revised designated uses, depending on what is being adopted, removed or revised and it is thus unnecessary to add anything more to section 131.10(g).

EPA disagrees and agrees in part with comment s that identification of the HAU should be an option left to a state’s or authorized tribe’s discretion. EPA disagrees wit h comment s that states and authorized tribes should not be required to adopt the HAU

. If leaving identification of the HAU to the discretion of the state or authorized tribe means that EPA would have to defer to a state or authorized tribe’s decision wheth er to identif y a HAU , such a provision would not be a requirement at all and would not further the purposes of the Act efficiently , if at all

. Allowing states and authorized tribes full discretion to determine whether to identify the HAU could result in a situation where the state or authorized tribe chooses not to adopt an HAU where there is indeed a higher use attainable because their current use structure does not accommodate this use. Such a result would not meet the purposes of the CWA as implemented by the final rule. EPA’s authority under the CWA is to promulgate regulations and oversee state and authorized tribal actions to ensure that the requirements of the CWA are met. That said , EPA
agree s that states and authorized tribes have discretion in how they c hoose to articulate their HAU. EPA’s preamble to the final rule provides some examples that states and authorized tribes may use but explicitly explains : “States and authorized tribes are not limited by the examples described in this section and can choose a different approach that aligns with their specific needs, as long as their preferred approach is protective of the HAU and i s consistent with the CWA and § 131.10.” See section II.B of the preamble to the final rule. EPA disagrees with the comment that s t ates and authorized tribes should not be required to adopt the HAU because it would be inconsistent with EPA’s implementation and interpretation of the CWA. EPA ’s preamble s to the proposed r ule and the final rule provide explanation s for the HAU requirement , when it applies, and why such a requirement is reasonable, consistent with the objectives of the CWA

, and serves the purposes of the Act. Please see also response
essays 5.f.i and 5.k . regarding the HAU. Response essay 5.f.i. specifically discusses articulating the HAU and state/authorized tribal discretion

.

C omment s stated that EPA should clarify that the HAU requirement is not required outside of a UAA. EPA’s final rule makes clear a t section 131.10(g) that the requirement to adopt the HAU is limited to instances when a UAA is required per section 131.10(j). EPA disagrees with the comment that incorrectly states that a UAA and the associated HAU are required for changes to 303(c)(2)(A ) uses. EPA’s clarifications in the final rule to section 131.10(g), section 131.10(j, and section 131.10(k) make clear when a UAA is required and thus, when adoption of the HAU is required.

EPA acknowledges that some commenters expressed support for the m odification to section 131.10(g) that provided states and authorized tribes with discretion to utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use (including a location

specific use) when adopting the HAU

. Other commenters suggested modifications to this proposed language, such as clarifying that current use categories/subcategories may only be used if they sufficiently identify and protect the HAU

. EPA notes that this text no longer appea rs in the final rule inChapter 3 – Response Essays 5.g – DU – Clarify 131.10 g, j, k

section 131.10(g) , as some commenters expressed concern that this sentence implied that states and authorized tribes were limited to only these examples and that EPA should be clear these approaches

are non

- exclusive . It was not EPA’s intent to make these approaches exclusive . States and authorized tribes may choose different approaches for articulating the HAU that align with their specific needs, as long as the approaches are consistent with the CWA and section 131.10. In the preamble to the final rule, EPA provides a fourth option for states and authorized tribes to consider when determining how to articulate the HAU, and, as discussed earlier, clearly provides that states and authorized tribes are not limited to these examples as long as whatever approach they take protects the HAU and is consistent with the CWA and section 131.10. For additional discussion see Essay 5. f .i.

EPA disagrees with several commenters who suggested modifying section 131.10(g) to provide that

w hen adopting new or revised WQS based on a UAA

, a state or authorized tribe should ensure such standards include or protect (all) attainable uses, rather than adopting the HAU

. EPA considered finalizing this modification to section 131.10(g); however, EPA recognized that saying “all attainable uses” could imply that states and authorized tribes must adopt more than one use to replace the unattainable designated use

, and it could further the misconception that when conducting a UAA for one broad use category (e.g., aquatic life)

, states and authorized tribes must consider adopting attainable uses in other broad use categories ( e.g. , public water supply, recreation, agricultural uses)

. Rather, to continue to strive toward restor ing and maintain ing the chemical , physical, and biological integrity of the nation’s waters and to enhance the quality of the water , the state or authorized tribe

must adopt the HAU that is closest to the use (s) specified in CWA section 101(a)(2) that is (are) the subject of the use remo val

. Further

, the intent of the regulation is to focus the states, authorized tribes, and the public on adequately determining what the HAU is for the applicable use category being removed (e.g., if no t full protection and propagation of fish, shellfish, a nd wildlife , then the HAU related

to full protection and propagation of fish, shellfish, and wildlife ).

EPA also received several comments related to the attainability factors specified in section 131.10(g). Specifically, some commenters suggested that the factors at section 131.10(g)(3), (g)(5), and (g)(6) should not be allowed (or should be refined to avoid exploitation) when conducting a UAA , or that EPA should differentiate between the factors that are naturally occurring and those that are anthropogenically induced . Other commenters stated that the section 131.10(g) factors do not allow sufficient flexibility to change designated uses and/or are “difficult to prove .” The final rule does not modify the section 131.10(g) factors in any way nor did EPA request comments on such revisions or the factors in general with respect to designated uses . T herefore, such comment s are outside the scope of this rulemaking; however, EP A has provided guidance on these and related issues

, and commenters may find it helpful to review EPA’s “UAAs and Other Tools for Managing Designated Uses” 1 (March 2006) as well as EPA’s “Interim Economic Guidance for Water Quality Standards” 2 (March 1995) for assistance in working with section 131.10(g)(6)

. Additionally, EPA intends to provide additional guidance on uses in the future and will consider addressing the section 131.10(g) factors further at that time.

EPA also acknowledges a commenter who sugg ested revising section 131.10(g) to clarify that each of the six factors are independent of each other, and factor 6 is not a precondition for any of the other factors. As noted previously, the final rule does not modify the section 131.10(g) factors in an y way and, therefore, such a comment is outside the scope of this rulemaking. However, EPA notes for the

commenter that the regulatory language at section 131.10(g) clearly states that only “one of the six

1 http://water.epa.gov/scitech/swguidance/standards/upload/2007_08_08_standards_uses_uaa_cs

- all.pdf

2 http://water.epa.gov/scitech/swguidance/standards/upload/2007_06_18_standards_econworkbook_complete.pdfChapter 3 – Response Essays 5.g – DU – Clarify 131.10 g, j, k

factors” is required when demonstrating that attai ning a use is not feasible. This is consistent with EPA’s previously existing regulation at 131.10(g) that included an “or” in between each of the factors, making clear that each factor is independent of one another.

EPA disagrees with the commenter who su ggested modifying the language in section 131.10(g) to clarify that a UAA is not required when revising a section 101(a)(2) designated use to more accurately reflect the use that is attainable (e.g., a sub

- category of such a use that is still protective of the uses specified in section 101(a)(2)). The 1983 regulations provided a framework where 131.10(g) describes the factors that can be used to evaluate attainability when conducting a UAA

, while section 131.10(j) and (k) address the circumstances where a UAA is or is not required. Today’s rule maintains this structure and it would be inappropriate to specify one specific circumstance where a UAA is not required in section 131.10(g) if all other scenarios are addressed in section 131.10(k). The scenario spec ifically identified by the commenter is addressed in the final rule at section 131.10(k)(2) which says that a UAA is not required if the state or authorized tribe designates a subcategory of a use specified in section 101(a)(2) of the Act that requires criteria at least as stringent as previously applicable

.
Regarding the comment that EPA is more readily allowing use downgrades by narrowing when a UAA is required, see response e ssay 5.h. EPA disagrees with the commenter who stated that EPA did not adequatel y explain why it is taking a position different than the one taken in the 1998 A dvance N otice of
P roposed R ulemaking ( ANPRM ). In the preamble to the proposed rule, EPA recognized its previous interpretation in the 1998 ANPRM
, but clearly laid out its legal analysis of the CWA and the regulations to explain why EPA now believes that the better interpretation is that a UAA is only required when removing or revising a use specified in CWA section 101(a)(2) o r a subcategory of such a use. I n addition,
i t is imp ortant to note that although a state or authorized tribe is not required to conduct a UAA when removing a use not specified in CWA section 101(a)(2), this does not mean that there is no evalu ation done to justify removal. EPA’s final rule further revises s ection 131.10(k) to be clear what is required when removing a non

- 101(a)(2) use. Related to this, EPA’s preamble provides guidance on considerations for states and authorized tribes when taking into account th e “use and value” for a

water. In addition, EPA intends to provide additional guidance on uses after the final rule is published. Please also see response 5.h. for additional discussion on non

- 101(a)(2) uses.



### D. **Comments on Section**  **131.10(j)**

EPA disagrees with the comment that the “ rebuttable presumption ” is not supported by the statute and, therefore

, section 131.10(j)(1) should be deleted. For further discussion on the rebuttable presumption concept, please see response essay 5.i.

EPA notes that the most substantive change it made to section 1 31.10(j) is to make an explicit link to
section 131.10(g) to make clear that these provisions are linked. EPA acknowledges that it made changes to the language in section 131.10(j)(1) and (2) but as discussed below, such changes were refinements and are c onsistent with the 1983 requirements and EPA’s implementation of those requirements

. EPA’s prior existing regulation at 131.10(j) provides that “ A State must conduct a use attainability analysis as described in § 131.3(g) whenever: (1) The State designates or has designated uses that do not include the uses specified in section 101(a)(2) of the Act, or (2) The State wishes to remove a designated use that is specified in section 101(a)(2) of the Act or to adopt subcategories of uses specified in section 101(a)(2) of the Act which require less stringent criteria. ” In discussing section 131.10(j)(1) and (2)

, the
1983 final rule preamble explained that

, “ [i]n the final rule, EPA is requiring that States conduct and submit to EPA a use attainability analysis if the State (a) is designating uses for the water body such thatChapter 3 – Response Essays 5.g – DU – Clarify 131.10 g, j, k

the water body will not have all uses which are included in Section 101(a)(2) of the Act, (b) maintaining uses for the water body which do not include all of the uses in Section 101(a)(2) of the Act , (c) removing a use included in Section 101(a)(2) of the Act or (d) modifying a use included in Section 101(a)(2) of the
Act to require less stringent criteria

. ” Water Quality Standards Regulations, 48 Fed. Reg

. 51400, 51401 (November 8, 1983)

.
In the final rule, EPA is making limited wording changes to reflect EPA’s longstanding position that under the 1983 regulations a UAA is required when a state or authorized tribe designates uses for a water body for the first time where those uses do not include the uses specified in section 101(a)(2) of the Act

– that is, when a state or authorized tribes designates non

- 101(a)(2) uses or uses that do not reflect the

uses spe cified in CWA 101(a)(2) (e.g., subcategories of the uses specified in 101(a)(2) of the Act that do not represent the “full” 101(a)(2) goal uses) for a water body that previously had no designated uses assigned (sometimes referred to as “unclassified waters ”). This reading is well supported by EPA’s 1983 preamble discussed above that makes clear that 131.10(j)(2) applied to instances where the state or authorized tribe was removing or revising previously adopted designated uses and therefore it most logicall y follows that 131.10(j)(1) is speaking to the first instance where the state or authorized tribe “designates” uses for a waterbody. Therefore, EPA revised the language in section 131.10(j)(1) from the proposal to final to make clear that the “first time” language applies to instances where the state or authorized tribe designates uses that do not reflect uses specified in section 101(a)(2) of the Act in this first instance.

EPA also made edits to the “has designated uses” that appear in EPA’s prior existing regulations in
section 131.10(j)(1) to clarify what this language means. It is clear from the preamble to the 1983 final rule that the phrase “has designated uses” was meant to require a UAA when the state was “maintaining uses for a water body which did not include all of the uses in Section 101(a)(2) of the Act” or “to justify continuation of standards which do not include” such uses. (48 FR 51400

- 01
, November 8, 1983 ). EPA’s position is th at this regulation meant to capture instances where a state had previously designated uses prior to the 1983 regulation but had not conducted a UAA. EPA determined that these instances can still occur in present day. EPA’s current position is that the “has designated uses” language refers to instances where WQS are in effect for CWA purposes as determined by section 131.21(c) or where a tribe may have designated waters prior to obtaining treatment in a manner similar

to a state ( TAS ) and other applicable si tuations. Therefore, edited the language in the final rule to make clear that the “has designated uses” language is referring to “previously designated” uses. EPA changed the language from the proposal which included the phrase “has designated uses for the waterbody for the first time” to avoid any further confusion. For the reasons discussed above, EPA disagrees with the comment that EPA’s changes to section 131.10(j)(1) requires UAAs in cases where they were not previously required. The revisions EPA made in section 131.10(j)(1) were to clarify in regulation its long standing positions that are consistent with the 1983 regulations.

EPA notes that it made two changes to the language in section 131.10(j)(2) that are consistent with EPA’s intent of the 1983 regulations. First, EPA finalized its proposal to make clear that a UAA is required when a state or authorized tribe is designating a subcategory of such a use “ that requires less stringent
criteria than previously applicable ” (emphasis adde d). EPA added the language “than previously applicable” because without such language, there has been confusion regarding to what the criteria should be compared. As discussed above, the 1983 preamble explained that 131.10(j)(2) is intended to capture those situations wh en a state or authorized tribe is “modifying a use included in Section 101(a)(2) of the Act to require less stringent criteria.” This makes clear that the 1983 regulation was intended to address situations when the state or authorized tribe was modifying a n already applicableChapter 3 – Response Essays 5.g – DU – Clarify 131.10 g, j, k

designated use to adopt a subcategory that would requires less stringent criteria. This means that the regulation was speaking to instances were there previously applicable criteria in effect for CWA
purposes would serve as a means of comparison

. Second, EPA also added additional language to 131.10(j)(2) to make clear that the UAA requirement applies when the states or authorized tribes “removes a sub

- category of such a use.” Today’s final rule preamble further explains that “ [a] sub

category of a use specified in section 101(a)(2) of the Act is not necessarily less protective than a use specified in section 101(a)(2) of the Act.” Today’s rule implements the intent of the 1983 regulation to require a UAA when a state or authorized tribe “modifies” a use “included in Section 101(a)(2)”, which would involve both removing a subcategory of a use specified in CWA 101(a)(2) and adopting a new subcategory of a use specified in CWA 101(a)(2) that require less stringent criteria. It is also consistent with the explanation in the 1983 final rule preamble that a state or authorized tribe is required to conduct and submit a UAA when “(b) maintaining uses for the water body which do not include all of the uses in Section 101(a)(2) of the Act”. W here a subcategory of use specified in section 101(a)(2) of the Act is less protective than a use specified in section 101(a)(2) of the Act, removing such a subcategory would result in “maintaining” uses that do not include all of the uses in section 101(a )(2) of the Act. For these reasons, these revisions are consistent with EPA’s intentions as described in the 1983 preamble.

EPA disagrees with comments that it is unnecessary to conduct a UAA to remove a sub

- category of a use specified in section 101(a)(2) of the Act (e.g., secondary contact recreation or a limited aquatic life use). EPA’s intent , consistent with CWA sections 101(a)(2) and 303(c)(2), is to require states and authorized tribes to continue striving for the goals of the CWA wherever attainable (i.e., protection and propagation of fish, shellfish, and wildlife and recreation in and on the water) and ensure that such uses enhance the quality of the water. Any decision by a state or authorized tribe to depart from these goals (e.g., by removing a sub

- category of a use specified in 101(a)(2), such as a secondary contact recreation use or a limited aquatic life use) should be a thoughtful, publicly transparent decision that is based on a structured scientific assessment of the factors affecting the attainment of the use. T he final rule at
section 131.10(j)(2) makes clear that a UAA is required even when adopting, removing or revising a subcategory of a use specified in CWA section 101(a)(2). EPA received comments that the CWA does not support the requirements in section 131.10(j) describing when a UAA is required. As discussed above EPA is only making clarifying changes to these provisions in the final rule. The provisions themselves continue to reflect the same substantive requirement that has been in place since at least 1983 and reflects EPA’s longstanding interpretation of the CWA. For more discussi on on this topic, see essay 5.i regarding the “ Rebuttable Presumption ” concept

.
With regard to the comment that states should be able to establish refine d uses when new or revised WQS are being considered for the first time, EPA does not understand the comment as written. Nonetheless, EPA clarifies that, per the requirements in section 131.10(j) (1) , states and authorized tribes may designate a use for the first time that does not include the uses specified in section 101(a)(2) of the Act (i.e., a sub

- category of such a use or a non

- 101(a)(2) use ) , provided that a UAA is conducted and demonstrates that the uses specified in section 101(a)(2) of the Act are not attainable and that the state or authorized tribe has adopted the HAU

.
EPA disagrees with comments that the language in section 131.10(j)(2) should be revised to require a UAA whenever a state “wishes to remove, revise, or modify” a designated use that is specified in section 101(a)(2) of the Act or a subcategory of such a use

. Revising or modifying a use specified in section 101(a)(2) of the Act does not necessarily require a UAA; for example, a state or authorized tribe may modify a broad use designati on such as an “aquatic life use” to more accurately describe the aquatic ecosystem expected in the water body (e.g., a “coldwater fishery”). Doing so provides a clearerChapter 3 – Response Essays 5.g – DU – Clarify 131.10 g, j, k

description of the management objectives for the water and may make the designated use more effective ; however, the modified coldwater fishery use is still a use specified in section 101(a)(2) of the
Act , and thus no UAA would be required

. EPA’s regulation at section 131.10(j) and (k) also reflect that whether a UAA is required when “designating a sub

- category” of a use specified in section 101(a)(2) depends upon whether the criteria would becom e more or less stringent than what were previously applicable. In other words, a UAA is not required when a state or authorized tribe is “upgrading” i ts 101(a)(2) designated use within the same broad use category to be more specific and require the same or more stringent criteria (e.g., the example above of revising “aquatic life use” to “coldwater fishery” where the criteria w ould either stay the same or become more stringent ).

EPA disagrees with a commenter’s suggested revisions to section 131.10(j)(2) that remove references to the phrase “specified in section 101(a)(2) of the Act.” These revisions would effectively change the meaning of section 131.10 (j)(2) to imply that a UAA is required when a state or authorized tribe removes any designated use or any use sub

- category, including non

- 101(a)(2) uses. As explained above, t his is not EPA’s intent, and thus EPA disagrees with the comment . EPA also disagrees with the commenter’s addition of the phrase “or to remove a use that may provide protections for an existing use” in
section 131.10(j)(2) is necessary. The prohibition against removing uses that are existing uses is already clear in section 131.1 0 (h)(1) and reiterated in section 131.10(g)

.
With regard to the comment that the proposed rule, through revisions to sections 131.10(g) and (j), is requiring that a UAA address both CWA sections 101(a)(2) and 303(c)(2)(A), this is incorrect. The

commenter misunderstood the proposal . The final rule revises sections 131.10(g) and (j) so that when the provisions are read together, it is clear that the factors at section 131.10(g) are only required to be considered when a state or authorized tribe conducts a UAA under section 131.10(j). EPA also disagrees with the comment that UAAs should not be limited to uses specified in CWA section 101(a)(2) and subcategories of such uses. For further discussion on this topic, see above and response essay 5.h

.



### E. **Comments on Section**  **131.10(k)**

EPA’ s previously existing regulations at section 131.10( j ) explained when a UAA is required and section 131.10(k) explained when a UAA is not required . T oday’s revisions accomplish the se same purposes by making revisions to ensure that these provisions are inverses of each other to avoid any situations where there could be a conflict. See Water Quality Standards Regulations, 48 Fed. Reg. at 51404 (explaining that “ In paragraph (j), EPA ha s defined that States must conduct a Use Attainability Analysis if designating uses not specified in Section 101(a)(2) of the Act, when removing a use specified in Section 101(a)(2) or if modifying uses specified in Section 101(a)(2) by requiring less stringent criteria. Paragraph (k) clarifies that States are not required to conduct a Use Attainability Analysis when designating uses specified in Section 101(a)(2) of the Act”), see also Water Quality Standards Regulatory Clarification; Proposed Rule, 78 Fed . Reg. 51518, 54525 (September 4, 2013). Therefore, EPA’s final rule adds section 131.10(k)(1) and (k)(2) so that they are parallel provision s to section 131.10(j)(1) and (j)(2) . Any other
revisions to the language in section 131.10(k) , including the addit ion of the “first time”, “has previously designated” and reference to previously applicable criteria are discussed above. EPA also added (k)(3), consistent with its revisions to section 131.10(g) and (k), that a UAA is not required for removals or
revision s to non

- 101(a)(2) uses. To avoid any future confusion, EPA also added a reference to the requirements provided in section 131.10(a).

EPA’s 1983 regulations, specifically sections 131.10(j) and (k), interpret and implement the CWA through requirements that WQS protect the uses specified in CWA section 101(a)(2) unless states and authorizedChapter 3 – Response Essays 5.g – DU – Clarify 131.10 g, j, k

tribes show those uses are unattainable through a UAA consistent with EPA’s regulation, effectively creating a rebuttable presumption of attainability. Although EPA made clarifying revisions to the language in sections 131.10(j) and (k) as discussed in this essay , t he underlying requirement was not a subject of this rulemaking and remains unchanged by today’s rule because the edits do not change the fundamental requirement to do a UAA where the state ’s or authorized tribe’s standards do not reflect the uses specified in section 101(a)(2) of the Act or where a state or authorized tribe is removing or modifying such uses. In addition, EPA kept the same basic structure that se ction 131.10(j) speaks to when a UAA is required and section 131.10(k) speaks to when a UAA is not required. The most substantive change s EPA made to sections 131.10(j) and (k) are to make clear that UAAs are not required for non

- 101(a)(2) use removals , which leaves untouched EPA’s “ rebuttable presumption ” for uses specified in section 101(a)(2) of the Act . For additional discussion about the rebuttable presumption concept see response essay 5.i.

EPA disagrees with the comment that a UAA should not be required when an existing use is refined; that is, replaced by a more specific version of the use. The commenter is confusing existing uses with currently designated uses. An existing use is defined as “those uses actually attained in the water body

on or a fter November 28, 1975, whether or not they are included in the water quality standard.” Title 40 of the Code of Federal Regulations ( CFR ) section 131.10 (e). If a state or authorized tribe designates a sub

- category of a use specified in section 101(a)(2) o f the Act that requires criteria at least as stringent as previously applicable, then a UAA is not required per section 131.10(k)(2). However, if a state or authorized tribe is designating a sub

- category of a use specified in section 101(a)(2) of the Act t hat requires criteria less stringent than previously applicable, then a UAA is required per section 131.10(j)(2). States and authorized tribes cannot remove a designated use if it is an existing use, per EPA’s regulations at section 131.10(h)(1)

. See also response essay 5.d re existing uses.

EPA acknowledges commenters who expressed confusion over the proposed language in section 131.10(k)(1); specifically, the proposed phrase “or has designated uses for a water body for the first
time .” EPA recognizes that the language may appear un necessary, however EPA’s intent with all of
section 131.10(k) is to clearly mirror the language in section 131.10(j). More specifically, 40 CFR section 131.10(k)(1) is intended to mirror section 131.10(j)(1)

. This ensures that neither section can be interpreted to contradict the other. Please see subsection D of this essay for how EPA interprets the phrase “has designated” in the context of section 131.10(j) as that will also explain how it is to be interpreted in the context of section 131.10(k).

EPA agrees with comment s that the final rule should be more specific about the meaning of the phrase

“ a designated use that is not specified in section 101(a)(2) of the Act ” in section 131.10(k)(2) of the proposed rule, as such a phrase could be read in several different ways

. EPA also agrees with comment s that the final rule should specify that a UAA is not required to remove or “revise” a use that is specified in section 303(c)(2)(A) of the CWA but not specified in section 101(a)(2) of the Act (or subcategory of such a use)

. In response to th ese comment s , in the final rule EPA revised section 131.10(k)(3) as follows: “The State wishes to remove or revise a designated use that is a non

- 101(a)(2) use...” In addition, EPA added a definition of “non

- 101(a)(2) use” to the final rule at section 131.3(q) that reads as follows: “Non

- 101(a)(2) use is any use unrelated to the protection and propagation of fish, shellfish, wildlife or recreation in or on the water.” A public water supply use (what co mmenters refer to as a “drinking water use”) i s an example of a non

- 101(a)(2) use that may be removed without a UAA (provided such use is not an existing use), although states and authorized tribes must still submit documentation

re garding the water body’s “use and value” consistent with CWA section 303(c)(2)(A) and EPA’s implementing regulations to support the state or authorized tribe’s action. See section II.B of theChapter 3 – Response Essays 5.g – DU – Clarify 131.10 g, j, k

preamble to the final rule for additional discussion on removing or revising non

- 101(a)( 2) uses and

response essay 5.h

.
As far as whether exempting the removal of non

- 101(a)(2) uses from the requirement to conduct a UAA weakens the existing rule, see Essay 5.h. Note, however, that if tribal treaty or similar rights are at issue, the state and EPA would have to examine and ensure that applicable CWA WQS are consistent with those tribal rights. In exercising its authority to approve or disapprove state WQS, EPA must ensure that its decisions comply with any other applicable law, including federa l treaties and statutes. In the several cases in which tribal treaty or similar rights have been raised in the context of a WQS action, EPA has taken a stepwise approach. First, EPA examines whether the tribal rights apply to the geographic area in question. Second, it determines what rights the tribe or tribes retain in the area. Third, it looks at whether those rights are affected by the proposed action. Much of this analysis will turn on the nature of the particular treaty or similar tribal rights, the type of decision EPA is making, and any assertions made by tribes in the course of consultation. Recently, EPA used tribal treaty rights or similar tribal reserved rights to inform the type of us e that is in place as it reviewed the protectiveness of WQS

cr iteria. Any removal or modification of a designated use, whether it be a use specified in section 101(a)(2) (or a subcategory of such a use) or a non

- 101(a)(2) use, may also involve an analysis of such rights.

EPA disagrees with comments that the provision allowing states and authorized tribes to remove a non

101(a)(2) use, such as a public water supply (referred to by commenter as drinking water ) use, without a UAA should be deleted from the final rule. States’ and authorized tribes’ decisions regarding no n101(a)(2) uses must still be consistent with the CWA and be transparent to both the public and to EPA

, and any removal or revision of a non

- 101(a)(2) use is not exempt from an analysis

. While the final rule at
section 131.10(k)(3) makes it clear that a U AA is not required whenever a state or authorized tribe
removes or revises a non

- 101(a)(2) use, the final rule also makes it clear that the state or authorized tribe must submit documentation justifying how its consideration of the use and value of the wat er for those uses listed in section 131.10(a) appropriately supports the state’s or tribe’s action. As discussed in the preambles to the proposed and final rules, as well as EPA’s responses to comments, this interpretation is reasonable and consistent with the CWA. See response e ssay 5.h. and section II.B of the final rule for additional discussion on removing or revising non

- 101(a)(2) uses, as well as additional discussion of what a “use and value ” analysis might look like.

EPA disagrees with comment s that the regulation at section 131.10(k) should be modified to clarify that a UAA is not required when a state or authorized tribe is correcting a default use that was assigned to a water body with no/insufficient/non

- representative data, and in its place assigning a more appropriate use category based on new or refined data. EPA rejected this approach an d instead, in 1983, codified
40 CFR 131.10(k), which provides that a state or authorized tribe may forgo a UAA if it includes the CWA
section 101(a)(2) goal uses in its use designations. EPA determined that such an approach is consistent with CWA section 510. See 48 Fed. Reg. at 51,401. Thus, EPA interpreted CWA section 101(a)(2) to create a presumption in favor of the uses identified therein – a presumption that could be rebutted upon a demonstration that those uses are not attainable. If the “more appropriate use” carries with it criteria that are at least as stringent as the criteria for the previously applicable “default use

, ” then
section 1 31.10(k)(2) is clear that a UAA is not required. If it does not

, then a UAA would be required

, consistent with the CWA and EPA’s regulations

. In EPA’s experience, revisions to correct a “default use” related to aquatic life and/or recreation are often a re sult of newly obtained or updated data that shows there are natural reasons why the designated use is not feasible to attain, such as naturally occurring pollutant concentrations or natural physical conditions of the water body. In such cases, the UAA couldChapter 3 – Response Essays 5.g – DU – Clarify 131.10 g, j, k

be based on one of the factors representing unattainability due to “natural” reasons , which are
sections 131.10(g)(1), 131.10(g)(2), and/or 131

. 10(g)(5).



### F. **Other General Comments** 

EPA acknowledges comments that the final rule should clarify the proc ess and requirements for an acceptable UAA and what a “structured scientific assessment” requires and agrees that such clarity can be helpful

. In section II.B of the preamble to the final rule, EPA discusses what states and authorized tribes need to consid er when conducting a UAA

. EPA will consider providing additional information on these topics when revising and /or developing guidance on uses after publication of the final rule. In addition, EPA encourages states and authorized tribes to work with their a ppropriate EPA Regional office, as needed, before conducting the UAA. EPA can provide early assistance in determining any existing uses and address any policy , legal, and /or technical questions that may arise. Early collaboration between states/tribes and EPA Regional representatives should significantly facilitate the UAA and WQS review processes. Therefore, it is important for the state or authorized tribe to send EPA the draft UAA before any WQS revisions are proposed. An even more effective approach wou ld be to engage EPA during the development of a UAA protocol and to exchange information at the beginning, rather than the end, of the UAA process. There have been many such successful coordination efforts since EPA sent its March 2006 memorandum to the EP A Water Division Directors entitled “Improving the Effectiveness of the Use Attainability Analysis (UAA) Process.”

One commenter requested clarification on removing a public water supply (referred to by commenter as drinking water ) use that is no longer used for that purpose (e.g., the public water supply intake no longer exists). Per section 131.10(h)(1), a state or authorized tribe may not remove a use that is an existing use. For additional discussion on existing uses, please see response essay 5.d. Please also see EPA’s response to the State of Oklahoma regarding existing use questions at http://water.epa.gov/scitech/swgu idance/standards/upload/Smithee

- existing

- uses

- 2008

- 09

- 23.pdf

, which specifically discusses the identification of existing public water supply uses.

Several commenters suggested that EPA modify the definition of a UAA at section 131.3(g) to provide flexibil ity on the level of effort and analysis required in a UAA , as a formal structured scientific

assessment may not be necessary in all circumstances

. One commenter suggested that EPA modify the definition of a UAA at section 131.3(g) to include only the uses specified in section 101(a)(2) of the Act.
EPA declines to make such revisions although EPA notes that today’s final rule includes additional language in 131.10(g) to make clear that a UAA conducted pursuant to 131.10(j) must demonstrate that attaining the use is not feasible because of one of the six factors listed in section 131.10(g)

. EPA’s regulations and guidance have been clear that although all UAA’s must be structured scientific assessments, the level of effort and analyses varies with case

- specific circumstances. Please see the

case studies that EPA provides on its website at http://water.epa.gov/scitech/swguidance/standards/uses/uaa/casestudies_index.cfm . The purpose of these case studies is to show the varying degr ee of analysis that was involved in these UAAs from simple to complex depending on the specific facts. In regards to modifying the definition to include only the uses specified in CWA section 1 01(a)(2), EPA’s regulations make clear that a UAA is only required when removing or revising uses specified CWA section 101(a)(2) or subcategories of such a use. However, UAAs can be valuable tools for a state or authorized tribe to evaluate any designated use, even when considering the use and value of a non

- 101(a)(2) use. For these reasons, EPA is not revising the definition of a UAA

.Chapter 3 – Response Essays 5.g – DU – Clarify 131.10 g, j, k

Numerous commenters stated that UAAs should be conducted prior to adopting any of the uses specified in section 101(a)(2) of the Act. Other commenters suggested that EPA encourage or require states and authorized tribes to review the attainability of uses before a total maximum daily load (TMDL) is adopted. For a response to these comments , please see response essay s, 5.i and 5.j.

EPA disagrees with the comment that it should modify the regulation to clarify that a UAA is not required to remove consumption of aquatic organisms by humans, if such organisms are not naturally found in the water body. For discussion response to on this comment , please see response essay 5.j.

EPA acknowledges the comment that EPA should encourage states and authorized tribes to take into account the difference in risk between primary and secondary contact recreation activities; however, this comment is outside the scope of this rulemaking because EPA did not propose or request comment how to do UAAs for specific designated uses and such a comment asks EPA to provide certain guidance rather than commenting on the regulatory requirements. EPA is currently performing a systematic review of the literature to better understand the difference in risk between primary and secondary contact recreation uses. This study may provide data and information that is useful to EPA, states, and other stakeholders in understanding the level of protection needed for secondary contact recreation

uses. EPA will consider providing additional information on conducting UAAs in subsequent guidance after the final rule is published

. For discussion on adopting criteria to protect the HAU , please see response essay 5.f.ii.

EPA acknowledges the comment s that UAAs should be used in limited circumstances , as well as comments that UAAs are underutilized and EPA should encourage more UAAs

. EPA refers t he

commenter s to the final rule lang uage at sections 131.10(j) and (k). These provisions describe the circumstances when a UAA is and is not required. For the reasons described in EPA’s 1983 WQS regulation, the preambles to the proposed and final rule, and the responses to public comments on the proposed rule, EPA’s regulations reasonably delineate between the scenarios in which a UAA is required and when a UAA is not required. W hether UAAs should more used more sparingly or more frequently than they have been over the last 30

- 40 years is an issue that is outside the scope of this rulemaking.

EPA agrees with comments that the revisions in section 131.10 are prospective in nature and do not require states and authorized tribes to immediately revisit designated uses that are already adopted and in effect. However, it is important to remember that states and authorized tribes cannot ignore changes in attainability of uses once they are adopted and applicable. 40 CFR section 131.20 requires states and authorized tribes to hold public hearings for the purposes of reviewing applicable WQS from time to time, but at least once every three years. Specific to uses, the regulations go on to say that “ The State shall also re

- examine any waterbody segment with water quality standards that do not include the uses specified in section 101(a)(2) of the Act every 3 years to determine if any new information has become available. If such new information indicates that the uses specified in section 101a)(2) of the Act are attainable, the State shall revise its stand ards accordingly.” In addition, EPA’s regulation at section 131.10(i) requires states and authorized tribes to revise its standards to reflect the uses actually being attained if the currently applicable WQS specify designated uses less than what is presently being attained. Thus, while the revisions to section 131.10 are prospective in nature, states and authorized tribes must also comply with the rest of EPA’s WQS regulation

.Chapter 3 – Response Essays 5.h – DU – Rem Non -101(a)(2) Uses



## Essay **5.h – Designated Uses:**  **Removing Uses Other than Recreational or**  **Aquatic Life Uses**

**A. General Support** 

The U.S. Environmental Protection Agency ( EPA ) appreciates the support expressed by commenters for the revisions that clarify that a use attainability analysis ( UAA ) is not required when states and authorized tribes remove or revise non

- 101(a)(2) uses (i.e., any use that is not related to the protection or propagation of fish, shellfish, wildlife or recreation in or on the water)

.



### B. Genera **l Opposition**

**a. Comments**  **That the**  **Regulation Does Not Limit Use Attainability Analyses to the Uses**  **Specified in Section 101(a)(2) of the C lean Water Act** 

EPA disagrees with comments that the regulatory requirements at section 131.10(j) prior to today’s rule do not limit UAAs to only the uses specified in section 101(a)(2) of the Act, and by doing so through the final rule, EPA is focusing too narrowly on the uses specified in section 101(a)(2) of the Act and weakening protections for non

- 101(a)(2) uses. As e xplained in the proposal preamble, EPA acknowledged that the regulations relating to the UAA requirement as previously written were ambiguous and in its 1998 Advance Notice of Proposed Rulemaking ( ANPRM ) EPA interpreted its regulations as requiring demonstration of a 131.10(g) factor for all use removals . However, EPA explained the rationale for its regulatory revision in the preamble to the proposed rule (See 78 FR
54524

- 25) based on a better interpretation of the Clean Water Act ( CWA ) and regulation and appropriately sought public comments on its proposed revision. T oday’s final rule revises sections 131.10(g) and 131.10(j) so that when the provisions are read together, it is clear that the factors at
sectio n 131.10(g) are only required to be considered when a state or authorized tribe conducts a UAA under section 131.10(j) and not for non

- 101(a)(2) uses such as public water supply

. See Response Essay 5.g for additional discussion on the link between sections 131.10(g), (j) and (k).

**b. Comments**  **T hat**  **EPA I**  **s Removing Protections for Non**

**- 101(a)(2) Uses** 

EPA disagrees with comments that the final rule is removing protections for non

- 101(a)(2) uses such as public water supply. In response to comments that there was little discussion over what justification is needed to remove a non

- 101(a)(2) use, EPA added clarifying language in 131.10(a) and (k) explaining that when designating and removing non

- 101(a)( 2) uses “states must submit documentation justifying how its cons ideration of the use and value of water for those uses listed in 131.10(a) appropriately supports the state’s or authorized tribe’s action.” EPA refers to this documentation as a “use and value demonstration.” These requirements are consistent with EPA’s p reviously existing regulation at 131.10(a) and 131.6. Section 131.10(a) already provided that states and authorized tribes “ must specify appropriate water uses to be achieved and protected” and that the “class ification of the waters of the [s] tate must tak e into consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and othe r purposes including navigation ” ). Section 131.6(a) and (b) already provided that states and authorized tribes must submit to EPA for review “ use designations consistent with the provisions of sections 101(a)(2) and 303(c)(2) of the Act ” and “[m] ethods used and analyses conducted to supp ortChapter 3 – Response Essays 5.h – DU – Rem Non -101(a)(2) Uses

WQS revisions .” As such, t oday’s rule at 131.10(a) and (k)(3) continue to implement 303(c)(2)(A) by ensuring that states ’ and authorized tribes’ non

- 101(a)(2) uses are established taking into consideration the use and value of the water “and that stand ards continue to protect public health or welfare, enhance the quality of the water and serve the purposes of the Act, including the objective of the Act.” These requirements will provide EPA with both a record and standard by which it can reasonably

exerc ise its oversight authority when states and authorized tribes designate and remove any use, particularly non

- 101(a)(2) uses. EPA notes that

, as previously required

, all supporting analyses for a water quality standards (WQS) revisions must be made available to the public prior to a hearing ( Title 40 of the Code of Federal Regulations ( CFR ) section 131.20(b) ).

The provisions in section 131.10 unchanged by today’s rule continue to apply as they applied prior to today’s rule. In response to public comments, EPA is clarifying that the provisions protecting downstream waters at section 131.10(b) and prohibiting removal of a designated use if it is an existing

use at section 131.10(h)(1). The requirements in section 131.10 represent reasonable protections to

ensure that when states and authorized tribes are designating or removing non

- 101(a)(2) uses they are appropriately justifying their decisions to adopt a particular use consistent with the Act and maintaining and restoring water quality consistent with the objec tive of the Act. EPA disagrees with commenters that noted that EPA is removing the existing use requirement. As explained in essay 5.d. EPA did not reopen or revise the existing use requirement resides in 131.10(h)(1).

The regulatory factors in section 131.10(g)

, untouched by this rule

, implemented the “wherever attainable” language in 101(a)(2). T oday’s rule narrows the specified circumstances in which a state must demonstrate, through a structured scientific analysis (i.e., a UAA ) , that one of the facto rs listed at
section 131.10(g) precludes attainment of the use, to the circumstances listed in section 131.10(j) which involve designation and removal of uses specified in section 101(a)(2) of the Act and subcategories of such uses. This narrowing of when the specialized analysis of a UAA must be conducted and the requirement to adopt the highest attainable use ( HAU ) are consistent with EPA’s implementation of the
CWA to differentiate between the uses specified in CWA section 101(a)(2) and 303(c)(2)(A) given 303(c)(2)(A)’s requirement that WQS must serve the purposes of the Act, which include the goal for water quality that provides for the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water , wherever attainable. This approach recognizes that non

- 101(a)(2) uses are still important and worthy of protection and careful consideration but accounts for the nature and variety among the

non

- 101(a)(2) uses that justifies more flexibility for states and authorized tribes to describe the use and value of such uses after a public process consistent with section 131.20(b). Today’s preamble further recognizes that while the factors in 131.10(g) may be helpful to guide a state’s or authorized tribe’s consideration of non

- 101(a)(2 ) uses and provides that UAAs may qualify as a “use and value demonstration,” states and authorized tribes are not limited to using these attainability factors when making decisions about designating and removing non

- 101(a)(2) uses consistent with section 131.10(a)

. For example, EPA now recognizes that use and value considerations relating to industrial uses may be very different from considerations relating to public water supply and that while the factors relating t o attainability may be relevant for some non

- 101(a)(2) designated use decisions

, other relevant factors may be more appropriate for a state’s or authorized tribe’s consideration of use and value

. When discussing the factors at 131.10(g), EPA explained in its 1998 ANPRM that “ [t]he use removal criteria were included in the regulation to address those circumstances where the attainability of certain uses would be precluded by conditions over which the water quality protection provisions in the regulation had little or no control. The uncontrollab le conditions considered most likely to limit attainability were: natural water quality or habitat limitations, irretrievable human caused contamination or conditions, or insupportable economic and social costs. These general conditions, then, formed the b asis for the six use removal s .” [at cite toChapter 3 – Response Essays 5.h – DU – Rem Non -101(a)(2) Uses

36754]. The refore, narrowing of the UAA requirement provides states and authorized tribes with reasonable discretion to consider other factors that may be relevant when considering non

- 101(a)(2) uses.
EPA notes t hat consideration of the use and value for non

- 101(a)(2) uses would take into account considerations consistent with the requirement in 303(c)(2)(A) that standards “shall be such as to protect public health or welfare or enhance the quality of the water .”



### C. **Comments Related to Highest Attainable Use**

EPA disagrees with comments stating that the HAU concept should apply to all uses and not solely to the uses specified in section 101(a)(2) of the Act. EPA clarifies that t he concept of “attainability” comes di rectly from the language of CWA section 101(a)(2) and the purpos e of the HAU requirements is to establish designated uses that continue to serve the purpose of the act for water quality protecting the

use s specified in CWA section 101(a )(2), even where the uses specified in CWA section 101(a)(2) are demonstrated to be unattainable . Section 101(a) of the CWA provides that the ultimate objective of the Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. The interim goal expressed in CWA section 101(a)(2) is water quality that provides for the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water “wherever attainable.” In order to ensure that states and authorized tribe s adopt WQS that serve the Act’s goal of water quality that provides for the uses specified in section 101(a)(2) of the Act to the extent attainable and enhance the quality of the water , the final rule requires that where states and authorized tribes adopt new or revised WQS by demonstrating that a use specified in section 101(a)(2) of the Act or a subcategory of such a use is unattainable, based on a required UAA, they must adopt the HAU

. EPA’s 1983 regulations established the basis for the rebuttable pres umption o f the uses specified in section 101(a)(2) of the Act, where ver attainable

, and established the requirement to conduct a UAA and the six factors in 131.10(g)

. Today’s rule continue s the 1983 approach to implement ing the CWA to differentiate between the uses specified in CWA section 101(a)(2) and 303(c)(2)(A) by clarifying in rule that the requirement to conduct

a U AA only applies to the circumstances specified in section 131.10(j) and that the requirement to adopt the HAU is only triggered when the state or authorized tribe is adopting a new or revised WQS based on a required UAA. These requirements are a key component to ensur ing that WQS provide a sound foundation that continue s to serve that 101(a)(2) goal. While EPA recognizes that all designated uses are important and warrant careful consideration when a state or authorized tribe is designating or revising uses for a waterbody, EPA is implementing the Act to provide specialized requirements relating to designation and revision of the uses specifi ed in 101(a)(2) and subcategories of such uses to best achieve that statutory goal. Please see EPA’s discussion in section B of this essay for further discussion on why the regulations provide additional, specialized requirements for the uses specified in CWA section 101(a)(2) and subcategories of such uses.

EPA disagrees with the commenters who stated that the HAU requirement appears to override the classification of waters on the 303(d) list that are impaired. The former is about use attainability (i.e., a prospective consideration of whether a use may be attainable in the future) for purposes of establishing objective desired condition for the specified water body through the designation of a use , whereas the latter is about whether a water body is currently meeting or attaining its WQS . A water body that is not currently attaining its WQS and still requires a total maximum daily load ( TMDL ) is considered impaired and in most cases would be placed on a 303(d) list for TMDL development

. A water body that is appropriately designated at its HAU may still be on the CWA 303(d) list as impaired because it isn’t meeting the HAU (i.e., the desired condition for the waterbody, “whether or not [it] is being attained” (see section 131.3(e))

. The TMDL process can facilitate identification of targets and activities necessary

to implement in order to achieve the HAU. Therefore, the HAU requirement works to ensure that waterChapter 3 – Response Essays 5.h – DU – Rem Non -101(a)(2) Uses

quality goals reflected in a state’s or authorized tribe’s WQS provide a stro ng foundation for CWA implementing programs, including those under CWA section 303(d). See Response Essay 5.j for additional discussion on the link between the use refinement process and TMDL development.



### D. **Comments Related to U se**  **A ttainability**  **A nalyse**  **s a nd Existing Uses** 

EPA disagrees with comments suggesting that a UAA be conducted whenever a state or authorized tribe adopts new or revised WQS based on a CWA section 101(a)(2) use, in order to ensure attainability of such use (s). As described in section II .B of the preamble to the final rule, EPA’s prior existing WQS regulation at 40 CFR Part 131 interprets and implements CWA sections 303(c)(2)(A) and 101(a)(2) through requirements that WQS protect the uses specified in CWA section 101(a)(2) unless states and authorized tribes show those uses are unattainable through a UAA, effectively creating a rebuttable presumption of attainability. As such, a UAA is required in the context of CWA 101(a)(2) uses when a state or authorized tribe either removes or revises a use specified i n section 101(a)(2) of the Act (or a sub -c ategory of such use)

. 40 CFR 131.10(k) provides when a UAA is not required. During the 1983 rulemaking, there was considerable comment regarding whether and, if so, when UAAs should be required. See 48 Fed. Reg. at 51,401. Some commenters, like those comme nting today, suggest a UAA be conducted whenever a state or authorized tribe adopts new or revised WQS based on a CWA section 101(a)(2) use, in order to ensure attainability of such use(s), so that recreation uses “in and on the water,” for example, could be designated only when the s tate or authorized tribe had affirmatively demonstrated that such uses were attainable. See id

. EPA rejected this approach and instead, in 1983, codified 40 CFR 131.10(k), which provides that a state or authorized tribe may for go a UAA if it includes the CWA section 101(a)(2) goal uses in its use designations. EPA determined that such an approach is consistent with CWA section 510. See 48 Fed. Reg. at 51,401. Thus, EPA interpreted CWA
section 101(a)(2) to create a presumption in favor of the uses identified therein – a presumption that could be rebutted upon a demonstration that those uses are not attainable. While today’s rule made edits to 131.10 (j) and (k), such revisions did not substantively change the fundamental requirements in these provisions established in the 1983 regulations. Edits made in today’s rule to 131.10(j) and (k) were made to improve readability, provide clarity in the distinction between the two clauses of (j)(2) by specifying that (j) (2)’s reference to le ss stringent criteria refers to previously applicable criteria, revise the language to ensure that both provisions do not conflict and are true inverses of each other consistent with the 1983 regulations

, and to add a reference to 131.10(a).

EPA disagrees with a commenter who states that removing the UAA requirement would allow states or authorized tribes to remove designated uses, including non

- 101(a)(2) uses, for any reason, such as if the state or authorized tribe does not want to regulate sources of pol lution. As discussed above, 131.10(a) now makes explicit that states and authorized tribes must submit to EPA documentation justifying how its consideration of the use and value of water appropriately supports the state’s or authorized tribe’s designation or removal of uses. A UAA may be used to satisfy this requirement. In addition this “use and value demonstration” must be provided to the public prior to a public hearing. While there is discretion provided to states and authorized tribes when providing a use and value demonstration to remove or
revise non

- 101(a)(2) uses, the state or authorized tribe must still meet the applicable regulatory requirements. Therefore, EPA disagrees that states and authorized tribes will be able to designate and

remove uses “ arbitrarily” or “ for any reason” because states and authorized tribes will need to engage in careful consideration consistent with the specified requirements at section 131.10 and address public

comments on such consideration s to ensure that their WQS acti ons regarding use revisions, particularly designations and removal of non

- 101(a)(2) uses

, are appropriately supported in their documentation submitted to EPA.Chapter 3 – Response Essays 5.h – DU – Rem Non -101(a)(2) Uses

EPA received a comment asking “Is it possible to remove a designated use even though it has never reached the existing use standard or is no longer used for that use.” As discussed above, EPA’s provision

at section 131.10(h)(1) prohibits the removal of a designated use if it is an existing use. However, EPA also provides a clear interpretation of the definition of an existing use in 131.3(e)

. Please see the preamble to the final rule and response essay 5.d. for additional discussion on determining the existing

use. Please also see EPA’s 2008 letter at http://water.epa.gov/scitech/swguidance/standards/upload/Smithee

- existing

- uses

- 2008

- 09

- 23.pdf for a specific discussion on determining the existing use for public water supply uses.



### E. **Other Comments** 

EPA acknowledges a commenter’s concerns with assumptions made in a state

- specific hydrology protocol, as well as an associated expedited UAA work sheet. C omments addressing states specific
situations are outside the scope of this rulemaking which is national in scope

. EPA will work with specific states and authorized tribes, as necessary, to determine what changes are necessary to meet the requirements of the final rule.

EPA acknowledges commenters who suggest that the removal of non

- 101(a)(2) uses , such as a public water supply use or agricultural use, and associated criteria may have the unintended consequence of affecting uses specified in section 101(a)(2) of the Act . For example, a state may choose to remove an agricultural use that is protecte d by chloride and sulfate criteri a. The removal of such criteria may negatively impact the aquatic life use , as the aquatic life in the specified water body are also sensitive to these pollutants , and the state has not adopted criteria for chloride and sulfate to specifically protect the aquatic life use

. EPA is finalizing a specific definition for non

- 101(a)(2) uses to clearly distinguish these uses from the uses specified in 101(a)(2) of the Act and subcategories of uses specified in 101(a)(2) of the Act. EPA has found that some have interpreted EPA’s use of the term non

- 101(a)(2) uses, in the past, to also mean subcategories of uses specified in 101(a)(2) which has led to confusion. EPA’s formal adoption of a definition is intended to avoid this confusion

. While EPA’s definition of a non

101(a)(2) use is framed in the context of a use that is “ unrelated to the protection and propagation of fish, shellfish, wildlife or recreation in or on the water ” it is important to understand that the association of a cr iterion for a parameter or constituent that does affect the protection and propagation of fish, shellfish, wildlife or recreation in or on the water does not convert a non

- 101(a)(2) use to a use specified in 101(a)(2) (or a subcategory of such a use). 40 CFR 131.11(a) requires states and authorized tribes to adopt criteria that protect the designated use and that such criteria must contain sufficient parameters or constituents to protect the designated use. Therefore, continuing with the example, to the extent that there are criteria for certa in parameters or constituents that protect the aquatic life use and will be removed by removing the agricultural use, states and authorized tribes must also adopt the criteria for these parameters or constituents (t o protect the aquatic life use) in the same action or conduct a UAA demonstrating that the aquatic life use is not attainable before EPA can approve the removal of the agricultural use and corresponding criteria as consistent with the CWA and EPA’s regulat ion.

For a response on comments that states and authorized tribes should not be required to look at future attainable uses based on considerations such as the potential effectiveness of best management practices (BMPs) , please see response essay 5.f.i.

EPA acknowledges a comment received regarding variances and non

- 101(a)(2) uses. See Response Essay 8.g.iv for discussion on the type of documentation required to demonstrat e the need for a WQS variance for non

- 101(a)(2) uses.Chapter 3 – Response Essays 5.i – DU – EPA ’s Regulations and Rebutting the Presumption of Attainability



## Essay **5.i – Designated**  **Uses: EPA**  **’ s Regulations and Rebutting the**  **Presumption of Attainability**

**A. Comments**  **on EPA ’s**  **Statutory and Legal Authority**

Comments raised issues concerning t he U.S. Environmental Protection Agency ’ s ( EPA ’s) regulations dealing with section 131.10(j) and (k), which the net effect of these two provisions is to require that water quality standards (WQS) provide for uses specified in section 101(a)(2 ) of the Act unle ss those uses have been shown to be unattainable consistent with EPA ’ s regulations. For ease of reference, EPA has historically referred to these provisions as establishing a “ rebuttable presumption ” approach when states are adopting new or revised designated uses. Commenters argue that this approach is not supported by the Clean Water Act ( CWA )

. Commenters provided multiple rationales in support of their position, such as 1) the “ rebuttable presumpti on ” ignores the plain language of section 101(a)(2) of the
Act (i.e

. , “ w herever 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 ” (emphasis added)) ; 2 ) the “ rebuttable presumption ” inappropriately usurps the authority given to states and authorized tribes by Congress to designate their own uses; 3 ) the “ rebuttable presumption ” turns an abstract goal into a requirement and it is inappropriate to assume the uses specified in section 101(a)(2) of the Act are attainable on all waters, as many waters were designated without consideration for attainability

.

EPA ’ s 1983 regulations, specifically section 131.10(j) and (k), interpret and i mplement the CWA through requirements that WQS protect the uses specified in CWA section 101(a)(2) unless states and authorized tribes show those uses are unattainable through a use attainability analysis ( UAA ) consistent with EPA ’ s regulation, effectively creating a rebuttable presumption of attainability. Although EPA made clarifying revisions to the language in section 131.10(j) and (k)

, as discussed in response essay 5.g, t he underlying requirement was not a subject of this rulemaking and remains unchan ged by today ’ s rule

. The revisions do not change the fundamental requirement to do a UAA where the state /authorized tribal standards do not reflect uses specified in section 101(a)(2) or where a state or authorized tribe is removing or modifying related us es. In addition, EPA kept the same basic structure that section 131.10(j) sets forth when a UAA is required and section 131.10(k) sets forth when a UAA is not required. The most substantive changes EPA made to section 131.10(j) and (k) are to make clear that UAAs are not required for non

- 101(a)(2) use re movals, which leaves untouched the underlying requirements of the 1983 regulations for uses specified in section 101(a)(2) of the Act. It is unclear what commenters mean when stating that today ’ s rule “ codifies ” or “ advanced ” the rebuttable presumption. To the extent that they mean that today ’ s rule somehow changes the regulations to fundamentally require something new, EPA disagrees. I n the proposal preamble

, the background section explain ed the existin g requirements in
EPA ’ s 1983 regulations to provide context for a discussion of the clarifying revisions in the proposed rule

. EPA is providing an explanation regarding the regulations that effectively create a rebuttable presumption in this response to co mment for much the same purpose and to dispel any confusion and misunderstanding regarding EPA ’ s revisions in the final rule.

T he Agency ’ s decades

- long interpretation of the CWA and EPA ’ s regulatory provisions at (j) and (k) as effectively creating a rebuttable presumption dates back to when EPA promulgated those regulations in 1983. EPA did not receive any facial challenges to those regulations promulgated in 1983. EPA ’ s 1983 preamble explained that “ [u]nder the final regulation, whenever States have set o r set uses for a waterChapter 3 – Response Essays 5.i – DU – EPA ’s Regulations and Rebutting the Presumption of Attainability

body which do not include all of the uses specified in Section 101(a)(2) of the Act, they must conduct a UAA to demonstrate that the uses are unattainable. ” Water Quality Standards Regulations, 48 Fed. Reg. 51400, 51409 (November 8, 1983). EPA has implemented the regulations consistent with its authorities by acting on the relevant goal use being addressed by the state or authorized tribe in its new or revised WQS. For example, if the state or authorized tribe designates a waterbody f or secondary contact recreation in the first instance, then the state or authorized tribe would only need to do a UAA to justify that primary contact recreation is not attainable. During the 1983 rulemaking, there was considerable comment regarding whether an d if so, when UAAs should be required. See 48 Fed. Reg. at 51,401. Some commenters asserted that EPA should require UAAs only when a state or authorized tribe intends to designate a use specified in CWA section 101(a)(2), so that section 101(a)(2) uses of the Act could be designated only when the state or authorized tribe had affirmatively demonstrated that such uses were attainable. EPA rejected this approach and instead, in 1983, codified Title 40 of the Code of Federal Regulations ( CFR ) section 131.10 (k), which provides that a state or authorized tribe may forgo a UAA if it includes the CWA section 101(a)(2) goal uses in its use designations. EPA determined that such an approach is consistent with CWA section 510. See 48 Fed. Reg. at 51,401.

Moving for ward from 1983, EPA has taken actions based on this interpretation numerous times over the

years. In 1997, EPA promulgated a “ cold water biota ” aquatic life use for specified water bodies in Idaho that EPA had earlier disapproved . In the preambles to the p roposed rule, EPA discussed the requirements of the regulations and how they effectively create a rebuttable presumption as follows:

Section 101(a)(2) of the Clean Water Act states the national goal of achieving by July 1, 1983,

‘‘ water quality which provides for the protection and propagation of fish, shellfish, and wildlife and * * * recreation in and on the water, ’’ wherever attainable. These national goals are commonly referred to as the ‘‘ fishable/swimmable ’’ goals of the Clean Water Act. Section 303(c )(2)(A) requires water quality standards to ‘‘ protect the public health and welfare, enhance the quality of water, and serve the purposes of this Act. ’’ EPA ’ s regulations at 40 CFR Part 131 interpret and implement these provisions through a requirement that water quality standards provide for fishable/swimmable uses unless those uses have been shown to be unattainable, effectively creating a rebuttable presumption of attainability

.. . Proposal, 62 FR 23004, 23006, April 28, 1997

.
...As stated in the proposed r ule, in designating beneficial uses, EPA is relying on the rebuttable presumption implicit in the CWA and EPA ’ s regulations at 40 CFR part 131, that in the absence of data to the contrary, ‘‘ fishable ’’ uses are attainable. As discussed above, the record supports the reasonableness of this presumption, and none of the comments rebutted it with respect to any of the water bodies for which EPA is promulgating designated uses....

Final rule, 62 FR 41162, 4116 6, July 31, 1997

.

EPA ’ s 1983 regulation and its interpretation of section 131.10(j) and (k) were challenged along with
EPA ’ s action in Idaho. See Idaho Mining Association, Inc. v. Browner, et al.

, 90 F.Supp.2d 1078, 1092 (D. Idaho 2000 ). The court entertai ned an “ as

- applied ” challenge to the regulation and upheld both the 1983 regulation and “ the rebuttable presumption stemming therefrom .” Id. at 1097. Specifically, the Idaho Mining Association challenged EPA ’ s rel iance on its interpretation of the regulati ons effectively creating a rebuttable presumption in the Agency ’ s promulgation of aquatic life use designations in Idaho.Chapter 3 – Response Essays 5.i – DU – EPA ’s Regulations and Rebutting the Presumption of Attainability

In EPA ’ s brief in support of its motion for summary judgment and in response to plaintiff ’ s motion for summary judgment, EPA explained that:

...EPA ’ s regulations reasonably implement the applicable sections of the CWA. Although Plaintiff is correct that the CWA does not mandate the attainment of fishable/swimmable uses on all waters, the Act is not indifferent to this goal

. (citation omitted). The overriding purpose of the
Act is “ to restore and maintain the chemical, physical, and biological integrity of the Nation ’ s
waters ” through reduction and eventual elimination of the discharge of pollutants into those waters by 1985. 33 U.S.C. § 1251(a) & (a)(1) (emphasis added). Congress intended, “ wherever attainable, ” to “ provide[] for the protection and propagation of fish, shellfish, and wildlife and provide[] for recreation in an on the water. ” 33 U.S.C. § 1251(a)(2). The Act exists to forc e reductions in pollution and thus improve the quality of the Nation ’ s waters, not simply to administer the status quo.

Plaintiff is also correct that the CWA does not mandate how attainability is to be evaluated

. (citation omitted). Rather the Act emphasi zes that water quality standards should help achieve the purposes of the Act, and it provides a list of factors to consider in establishing such standards. (citations omitted).

The lack of statutory specificity does not justify Plaintiff ’ s leap in logic th at EPA exceeded its authority by requiring fishable/swimmable designated uses unless a UAA shows that such uses are unattainable (i.e., the rebuttable presumption). To the contrary, the Supreme Court has held that, where a statute is subject to multiple interpretations, the interpretation of the agency charged with enforcing the statute is entitled to substantial deference.

In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the Supreme Court reviewed EPA ’ s interpretatio n of “ stationary source ” under the Clean Air Act.
EPA ’ s regulations allowed multiple pollution

- emitting devices with a single plant to be treated as

one “ stationary source, ” as if they were under a single “ bubble. ” The Clean Air Act required permits for “ new or modified major stationary sources ” of air pollution, but did not further define “ stationary source. ” Id. at 840. Because “ Congress itself had not commanded [a] definition, ” id. at 841, and because EPA ’ s definition was reasonable, the Court upheld EP A’ s regulation. The Court explained that review of agency regulations implementing a statute is a

two

- step inquiry:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not s imply impose its own construction of the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency ’s answer is based on a permissible construction of the statute.

Chevron , 468 U.S. at 842

- 43.Chapter 3 – Response Essays 5.i – DU – EPA ’s Regulations and Rebutting the Presumption of Attainability

In th e case at bar , Congress has not “ directly spoken to the precise question at issue, ” specifically, what showing should be required for a water body to avoid (or receive) a particular designated use, including “ fishable/swimmable. ” The statute provides only a list of factors to consider and an admonition that WQS “ shall be such as to ... ser ve the purposes of [the Act]. ” CWA section 303(c)(2)(A). Of the range of regulatory choices that can be imagined ( e.g. , fishable/swimmable uses must be demonstrated not to be attainable; best guess designations based on available data; fishable/swimmable u ses must be demonstrated not to be attainable ),
EPA ’ s regulations are reasonable and consistent with the statute ’ s overall purpose of restoring and maintaining the integrity of the Nation ’ s waters, and the more specific goal of attainable 101(a)(2) uses wh erever possible. See 48 Fed. Reg. 51,409 [col. 3] (EPA ’ s response to comments when adopting the 1983 final rule).

EPA Op. Br. 19

- 21.

EPA ’ s reply brief also explained that:

...By allowing designation uses less protective than “ fishable/swimmable ” but requiring a UAA to justify such designations, EPA ’ s regulations do not bar the designation of any of the uses listed in CWA Section 303(c)(2)(A) [citation omitted]. Rather, EPA ’ s regulations simply ensure that fishable/swimmable uses will not be written off unless they are truly not attainable.

Nothing in CWA Section 303(c)(2)(A) prohibits such a balancing of uses. The sentence highlighted by Plaintiff reads:

Such [revised or new water quality] standards shall be established taking into consideration t heir 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.

(citation omitted). Nothing in t his sentence, or this section of the CWA specifically states how these various and sometimes conflicting uses shall be balanced and weighed against each other. Nor does this sentence say anything about what ends the standards should accomplish. Thus even if the Act said nothing else about designated uses, the statute ’ s silence permits EPA, following Chevr on an d its progeny, to adopt reasonable approaches to striking a balance among these uses. (citation omitted).

But the Act does, in fact, give some general guidance regarding the balance to be struck among the listed uses. The sentence prior to the on [e] highlighted by Plaintiff explains:

Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purpo ses of this Act.

33 U.S.C. §1313(c)(2)(A). The clear direction of these three objectives is toward more protective, not less protective water quality standards. As we showed in our opening brief that “ the purposes of [the CWA] referenced in this sentence e xpressly include attaining fishable and swimmable uses whenever possible. ” (citation omitted). The objective of “ enhance[ing] the quality of water similarly favors more protective designated uses, as does the objective of protecting public health. Indeed, only the reference to public welfare is conceived broadly to include uses that tend to degrade water quality...In sum, the Act leaves EPA to set minimumChapter 3 – Response Essays 5.i – DU – EPA ’s Regulations and Rebutting the Presumption of Attainability

requirements for weighing the listed uses and it supports EPA ’ s determination to strike a balance that fa voring “ fishable/swimmable ” uses absent solid evidence that those uses are not attainable. ”

EPA Reply Br. 19

- 21.

The court agreed with EPA ’ s arguments and upheld both the EPA ’ s regulation and the interpretation:

...In this case, the Court agrees with Defenda nts that Congress has not directly spoken to the precise question at issue, i.e. “ what showing should be required for a water body to avoid (or receive) a particular designated use. ” ( citations omitted). Instead, Section 303(c)(2)(A) of the CWA merely provides a list of competing factors/uses to be considered when establishing water quality standards without providing any specific guidance as to how those factors should be weighed or balanced against one another. In light of this ambiguity, the Court must proceed to the second step of the Chevron inquiry and determine whether the EPA ’ s presumptive fishable/swimmable use interpretation is a permissible construction of the statute. For the following reasons, the Court finds that it is.

In promulgating its 1983 regulations and the challenged rule, the EPA did not unreasonably exclude any of the factors contained in section 303(c)(2)(A) from consideration. Instead, it merely exercised its discretion to balance those factors in favor of a fishable/swimmable use designation unless a UAA demonstrates that such uses are not attainable. In the Court ’ s view, the EPA ’ s presumptive use interpretation is consistent with Congress ’ express directive that water quality stan dards be such as to “ protect the public health or welfare, enhance the quality of water and serve the purposes of [the CWA]. ” Section 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A)

. Undeniably, one of the over

- arching purposes of the CWA is to achieve fishable/swimmable uses wherever attainable. Section 101(a)(2), 33 U.S.C. § 1251(a)(2) . Thus, although Congress recognized that the achievement of fishable/swimmable uses will not always be possible, it clearly indicated an intent that states move toward more protective water quality standards to preserve the nation ’ s waters for human uses as well as for aquatic life. The EPA ’ s regulations at 40 C.F.R. § 131.10(j) and (k) , and the r ebuttable presumption stemming therefrom, are plainly consonant with this intent and represent a “ reasonable accommodation of conflicting policies that were committed to the agency ’ s care by ” section 303(c)(2)(A) of the CWA. (citations omitted.) Accordingl y, the Court finds that the EPA ’ s presumptive use interpretation is a permissible construction of the statute and is therefore entitled to deference from this Court....

Based upon the foregoing, the Court concludes that the EPA permissibly relied upon a rebu ttable presumption of fishable/swimmable use attainability in promulgating the challenged rule. The use of the rebuttable presumption in favor of fishable swimmable uses was not a new and unauthorized interpretation of the CWA but was instead a reasonable interpretation of the
EPA ’ s existing regulations at 40 C.F.R. § 131.10(j) and (k). Furthermore, although the CWA does not require fishable/swimmable use designations for all waters of the United States, the EPA clearly acted within the bounds of its statutory authority in creating the presumption to further the mandatory goals and purposes of the Act. Thus, the Court finds that the actions of the EPA in relying on the rebuttable presumption in this case were neither arbitrary and capricious nor an abuse of discretion

...
Idaho Mining Association, Inc. v. Browner , et al., 90 F.Supp.2d 1078, 1097

- 98, 1107 (D. Idaho 2000 ).Chapter 3 – Response Essays 5.i – DU – EPA ’s Regulations and Rebutting the Presumption of Attainability

In subsequent decisions, EPA applied the same interpretation of its regulations. In 1998 and 2002, EPA proposed two WQS rules in Alabama that w ere never finalized. These proposed rules included a “ fish and wildlife ” use (i.e., uses specified in section 101(a)(2)) for certain waters where EPA had disapproved

an “ agricultural and industrial water supply ” use. The disapproval found that the State had not provided an adequate demonstration that the use specified in section 101(a)(2) was infeasible to attain (i.e., the State had not adequately rebutted the presumption that the use specified in section 101(a) (2) was attainable)

. Again, the preambles to the proposals discussed EPA ’ s regulations establishing a rebuttable presumption:

As discussed in section II.A., above, EPA regulations effectively establish a “ rebuttable presumption ” that “ fishable/swimmable ” u ses are attainable and therefore should apply to a water body unless it is affirmatively demonstrated that such uses are not attainable. EPA adopted this approach in order to help achieve the national goal articulated by Congress that,

“ wherever attainable ,” water quality provide for the “ protection and propagation of fish, shellfish and wildlife ” and for “ recreation in and on the water. ” CWA 101(a). While facilitating achievement of Congress ’ goals, the “ rebuttable presumption ” approach preserves States ’

p aramount role in establishing water quality standards in weighing any available evidence regarding the attainable uses of a particular water body. The rebuttable presumption approach does not restrict the discretion that States have to determine that “ fish able/ swimmable ” uses are not, in fact, attainable in a particular case. Rather, if the water quality goals articulated by Congress are not to be met in a particular water body, the regulations simply require that such a determination be based upon a credi ble, “ structured scientific assessment ” of use attainability.... 63 FR 10799, 10800, March 5, 1998. See also 67 FR 65256, 65258, October 23, 2002.

In 2003, EPA promulgated a primary contact recreation designated use in Kansas for 1,056 waters, a secondary contact recreation designated use for 230 waters, and an aquatic life designated use for one water body to replace non

- 101(a)(2) use designations that EPA had previously disapproved. The preamble to the final rule included similar text to the Alabama pream bles quoted above. See 68 FR 40428, 40430 ( July 7, 2003 ).

In 2004, EPA promulgated a primary contact recreation designated use for coastal waters in Puerto Rico to replace a Class SC designated use that included only secondary contact recreation. EPA took the action in response to a court order that found that a n EPA Region 2 letter to the territory constituted a section 303(c)(4)(B) Administrator ’ s determination that federal standards were necessary. The preamble included similar text to the Alabama preamb le text quoted above. See 69 FR 3514, 3516 ( January 26,
2004 ).

Therefore, it is clear that interpretation originates from EPA ’ s 1983 regulations effectively establishing a rebuttable presumption approach and EPA has consistently applied this interpretation in its own promulgations. It is important to note that the EPA ’ s regulation does not actually establish any designated uses effective for CWA purposes in and of itself. Rather, the regulations serve as the bas eline goal use that the state or authorized tr ibe starts from consistent with 303(c)(2)(A) and 101(a)(2)

. S tates and authorized tribes must either adopt the uses specified in CWA section 101(a)(2) or rebut the presumption that such uses are attainable in one or more of the situations described in section 131.10( g ). However, the applicable WQS are always those standards adopted by the states or authorized tribes and approved by EPA or those WQS promulgated by EPA for a state or authorized tribe. See
40 CFR 131.21(c) and (e). Please see also sub secti on B of this essay for additional discussion.Chapter 3 – Response Essays 5.i – DU – EPA ’s Regulations and Rebutting the Presumption of Attainability

A few commenters cited to National Wildlife Federation v. Gorsuch , 693 F.2d 156, 178 (D.C. Cir 1982) that upheld EPA ’ s interpretation that dams are not required to obtain CWA section 402 permits. The

commenters quoted language from the decision providing that “ [a ]s any student of the legislative process soon learns, it is one thing for Congress to announce a grand goal, and quite another for it to mandate full implementation of that goal. Read as a whole the Cle an Water Act shows not only Congress ’ determined effort to clean up our polluted lakes and rivers, but also its practical recognition of the economic, technological, and political limits on total elimination of all pollution from all sources. . . .
Caution is always advisable in relying on a general declaration of purpose to alter the apparent meaning of a specific provision. ” First

, commenters ignored key statements that provide context for these quotes :

Undeniably, Congress ’ strong statement of its object ive must color EPA ’ s and our interpretation of specific provisions of the Act. But, as any student of the legislative process soon learns, it is one thing for Congress to announce a grand goal, and quite another for it to mandate full implementation of tha t goal. Read as a whole, the Clean Water Act shows not only Congress ’ determined effort to clean up our polluted lakes and rivers, but also its practical recognition of the economic, technological, and political limits on total elimination of all pollution from all sources. The Act contains numerous requirements that cost be taken into account in establishing effluent limits, as well as assorted exemptions from those limits. Moreover, the purposes section, in its own right, suggests that Congress recognized that the substantive provisions of the Act fall short of completely achieving the announced goals of the Act. Congress hedged the purposes section by making it apply only as “ consistent with the provisions of this [Act], ” and explicitly distinguished betw een the congressional “ policy ” to eliminate discharge of toxic pollutants and the presumably weaker “ goal ” of eliminating discharge of all pollutants.

Id. The court ’ s opinion makes clear that it was only considering the sole issue of “ whether certain dam

i nduced water quality changes constitute a ‘ discharge of a pollutant ’ as that term is defined in 502(12) of the Act ” and did not consider the specific provision at issue in this rulemaking, section 303(c)(2)(A), that explicitly directs that WQS shall serve the purposes of the Act. Id. at 162. Importantly, D.C. Circuit determined that the lower court had failed to give enough deference to EPA ’ s construction of the Act

, characterized its decision as “ narrow ” and held that EPA ’ s interpretation is b oth reasonable and entitled to great deference. Id. at 162, 183. Finally

, th e court in Idaho Mining considered this case and noted that plaintiff ’ s reliance on this case “ ignores section 303(c)(2)(A) of the CWA which expressly provides that water quality s tandards must be established taking into consideration the purposes of the Act. ” Idaho Mining , 90 F. S upp.2d at 1098.

Commenters pointed to specific statements from the legislative history relating to section 101 to support their argument that the goal is m erely aspirational, not a requirement. EPA acknowledges that the goals and objectives of the Act were vigorously debated and discussed in the legislative history but the resulting statute retaining the objective and goals provides evidence that Congress in tended these goals to serve essential purposes in implementing the Act, and in particular implementing 303(c)(2)(A) which explicitly link s the “ purposes ” of the Act to WQS

. It is evident from the quote cited by the

commenter s that the focus of that particular Senator ’s comment s relat e to the goal in 101(a)(1)

, which focuses on eliminating the discharge of pollutants by 1985, not the goal in 101(a)(2). In addition, the quote makes clear that the Senator ’s comments were also foc used on the relevant timetables as not being “ an absolute requirement to be fully implemented as of a magic date .”Chapter 3 – Response Essays 5.i – DU – EPA ’s Regulations and Rebutting the Presumption of Attainability

Another commenter focused on a discussion in the legislative history addressing the language used in the statute regarding goals and policies . That discussion appears to be focusing on the no discharge goal

, not the interim goal or section 303(c)(2)(A) at issue here

.
Finally, commenters included citations and discussions of cases involving rebuttable presumptions to support an argument that to the extent EPA ’ s regulations establish a rebuttable presumption , such a rebuttable presumption i s inconsistent with case law

. EPA disagrees with these comments and notes that s imilar arguments were raised in the Idaho Mining litigation and there EPA explained that :

..the ‘ presumption ’ used by EPA was not of the evidentiary sort in which “ Fact 1 implies Fact 2 .” Rather administrative agencies, including EPA, commonly adopt regulatory schemes that set for th requirements for avoiding or obtaining a given regulatory outcome (citations omitted) ...EPA ’ s presumption established the baseline regulatory outcome that would apply absent sufficient evidence to the contrary. Under the Clean Water Act, there needs to be some standard against which EPA judges the adequ acy of designated uses. EPA ’ s regulations are, at least, a reasonable choice within the range of possible options.

EPA Op. Br. 23. EPA also noted in its reply brief that the rebuttable presumption at issue here involves statutory interpretations governed b y Chevron . EPA Reply. Br. 8 -9.

The court in Idaho Mining agreed:

Plaintiff argues that even if the EPA did have statutory authority to adopt the rebuttable presumption at issue, the EPA exceeded that authority when it applied the presumption in this

case. Specifically, Plaintiff asserts that the presumption was unlawful because there was no sound factual connection between the facts giving rise to the presumption and the presumed facts. Furthermore Plaintiff contends that there was no meaningful opportunity to rebut the presumption. Thus, Plaintiff argues that the EPA ’ s presumptive use interpretation cannot stand.

With respect to its first assertion, Plaintiff primarily relies on Holland Livestock Ranch v. U.S., 714 F.2d 90, 92 (9th Cir.1983) , for the proposition that an agency presumption is not valid unless

a “ ‘ sound factual connection ’ exists between the facts giving rise to the presumption and the facts then presumed. ” Plaintiff argues that in this case, that “ sound factual connection ” is totally lacking. Specifically, Plaintiff contends that the EPA ’ s aquatic life use presumption is premised on nothing more than a “ finding that where there is surface water then aquatic life uses are attainable. ” ( IMA ’ s Memorandum in Support of Motion for Su mmary Judgment, Docket # 17,

p. 17) (footnote omitted). Plaintiff again argues that the EPA created the presumption merely as a means of avoiding its obligation to conduct the required analyses to support the aqu atic life use designation. Thus, Plaintiff submits that the presumption is ultra vires and should be invalidated by this Court. See Holland Livestock, 714 F.2d at 92 (“ Administrative presumptions shou ld not replace proof needlessly. ” ); Atchison, Topeka & Santa Fe Ry. Co. v. ICC, 580 F.2d 623, 629 (D.C.Cir.1978) (“ The Commission is not free, as the legislature may be, to formulate a presumption t hat derives rationality from policy considerations of its own choosing .... ” ); Pacific Gas, 506 F.2d at 38

- 39 (“ An agency cannot escape its responsibility to present evidence and reasoning supporting its substantive rules by announcing binding precedent in the form of a general statement of policy. ” ).Chapter 3 – Response Essays 5.i – DU – EPA ’s Regulations and Rebutting the Presumption of Attainability

In response, Defendants argue that Plaintiff ’ s reliance on Holland Livestock, etc. is misplaced. As Defendants point out, most of the cases cited by Plai ntiff involve evidentiary presumptions rather than regulatory presumptions such as the presumption relied upon by the EPA in this case. Defendants argue that the rebuttable presumption of fishable/swimmable attainability is not the sort of presumption in w hich one fact implies the other. Rather, Defendants contend that the rebuttable presumption it is a regulatory scheme designed to obtain or avoid a particular regulatory outcome. Defendants cite several cases in which such regulatory presumptions have been upheld. See e.g., Downer v. United States ex rel. Dept. of Agriculture

, 97 F.3d 999, 1005 (8th Cir.1996) ; Bersani v. Robichaud

, 850 F.2d 36 , 39 (2d Cir.1988)

. Furthermore, Defendants maintain that the rebuttable presumption is merely an interpretation of existing regulations and that the Court ’ s analysis should therefore by guided by Chevron,

supra.

Again, the Court agrees with Defendants ’ po sition as to this issue. Contrary to Plaintiff ’s assertions, the rebuttable presumption on which the EPA relied in promulgating the challenged rule was not a new or novel regulatory requirement created by the EPA specifically for the purposes of the 1997 rulemaking. In fact, as has been previously discussed, the EPA actually adopted the rebuttable presumption in favor of fishable/swimmable uses in 1983 with the promulgation of its regulations at 40 C.F.R. § 131.10(j) and (k) . See discussion at Section II.A.1., supra. Thus, unlike the presumptions in the cases cited by Plaintiff, the rebuttable presumption in this case came about as a direct resu lt of the EPA ’ s statutory authority to develop rules that reasonably implement the CWA. Furthermore, the rebuttable presumption of fishable/swimmable attainability is not, as Plaintiff contends, an evidentiary presumption that replaces proof needlessly; for individual states are always given the opportunity to submit evidence in the form of a UAA demonstrating that a particular water body is not capable of attaining fishable/swimmable uses. Cf. Holland Livestock

, 714 F.2d at 92 (invalidating agency presumption, that cattle with unrestricted access to public lands have in fact trespassed on the public lands, where agency attempted to use the presumption as the sole evidence to establish a claim of trespass). Rather, it is an interpretive rule designed to further the policies of the CWA by providing for fishable/swimmable use designations unless a UAA affirmatively demonstrates that such uses cannot be attained. Insofar as the rule represents a permissible construction of the CWA a nd a reasonable accommodation of the conflicting policies contained therein, the
EPA ’ s statutory interpretation is entitled to deference from this Court. Chevron

, 467 U.S. at
844

- 45, 104 S.Ct. at 2782

- 83

.

90 F. Supp.20 at 1098

- 99. The commenters argue that the number of total maximum daily loads ( TMDLs ) in effect undermines the reasonableness of applying the regulations as a rebuttable presumption. EPA disagrees as TMDLs represent just a portion of th e water subject to the CWA. More importantly, states and authorized tribes have long operated under the 1983 requirements that identif y the uses specified
in section 101(a)(2) of the Act as a starting place but allow states and authorized tribes to adop t other

uses if it dem onstrate the uses specified in section 101(a)(2) (or subcategories of such uses) are not attainable . The regulations allow states and authorized tribes the discretion to weigh evidence relevant to whether uses specified in section 101 (a)(2) of the Act or subcategories of such uses are attainable in a particular case. As discussed above, EPA ’ s long standing view is that such an approach of starting with the uses specified in section 101(a)(2) of the A ct instead of a blank slate is a mor e effective way of ensuring that WQS are consistent with 303(c)(2)(A) and the directive that WQS shall serve the purposes of the Act.Chapter 3 – Response Essays 5.i – DU – EPA ’s Regulations and Rebutting the Presumption of Attainability

As evidenced from the discussion above

, EPA has previously addressed questions, like those raised by commenters today, relating to its authority for its regulations and interpretation regarding the rebuttable presumption. Consistent with its prior position, EPA disagrees with comments challenging its authority

.

I n addition, EPA disagrees with the commenter who took the position that Idaho Mining case was wrongly decided consistent with th e discussions above. EPA notes that commenter is incorrect in stating that the court in Idaho Mining did not address EPA ’ s regul ations and interpretation as well as its specific action in Idaho. The commenter also incorrectly states that the decision did not “ contemplate or support the blanke t application of a rebuttable presumption to all waters of the United States , as EPA is

att empting in this rul e making, ” and cit es to the unreported decision in Associated Indus. of Alabama v.
Train , 9 ERC 1561 (N.D. Ala. 1976). The court in Idaho Mining did, in fac t, address this issue and case specifically:

Defendants argue that the Train case is also distinguishable from the case at bar because the Train court never addressed the EPA ’ s authority to establish federal use designations under the current statute. Specifically, Defendant directs the Court ’ s attention to those provisions of the

curre nt CWA which provide that water quality standards should be such as to serve the purposes of the Act, including the achievement of fishable/swimmable uses wherever those uses are attainable. See 33 U.S.C. §§ 1251(a)(2) and 13 13(c)(2)(A) . Furthermore, Defendants argue that the Train case is inapplicable here because the “ fish and wildlife ” use designation at issue in that case was a “ blanket minimum ” designation and was, therefore, actually an irrebuttable presumption. Finally, Defendant argues that the analyses employed by the court in Train is inadequate in light of subsequent decisions, such as the Supreme Court ’ s decision in Chevron, supra, which specifically address the appropriate standard to be employed when reviewing an agency ’ s interpretation of a statute which it administers. The Court agrees.

Idaho Mining

, 90 F.Supp.2d at1095

- 99.

The commenter goes on to argue that “ [t] he primary question left unresolved by this decision is, if Congress did in fact intend for such a bl anket presumption to exist for all waters of the United States, why did it not explicitly set it out in the CWA. ” The Idaho Mining court acknowledged this void. Idaho Mining ., 90 F. Supp. 2d at 1088 (providing that “ the CWA does not itself create a rebutta ble presumption that [fishable and swimmable] uses are always attainable ” ). As discussed above, the court clearly addressed this issue when it found that “ [f] urthermore, although the CWA does not require fishable/swimmable use designations for all waters o f the United States, the EPA clearly acted within the bounds of its statutory authority in creating the presumption to further the mandatory goals and purposes of the Act .” Id. at 1 107. Therefore, EPA disagrees that the court in Idaho Mining left these
iss ues unresolved.

Commenters cite to section 302(b) as being relevant to today ’ s rule. While this section is outside the scope of this rulemaking , EPA notes that its longstanding interpretation of this provision applies to the adoption of effluent limitations more stringent than necessary to meet WQS.

One commenter argues if Congress believed that all waters must be designated for uses specified in section 101(a)(2) of the Act that such uses would have been in place in 1972. EPA ’ s requirements have changed over the years but the UAA requirement has existed in its current form since 1983. SeeChapter 3 – Response Essays 5.i – DU – EPA ’s Regulations and Rebutting the Presumption of Attainability

preamble to 1982 proposed and 1983 final preambles (47 FR 9234

, October 29, 1982 ; 48 FR 51400
, November 8, 1983 .)

EPA received comments that EPA ’ s rebuttable pre sumption has or will result in National Pollutant Discharge Elimination System ( NPDES ) permits and TMDLs based on WQS that a water body is not capable of meeting. As discussed in this essay, rebutting the presumption of attainability is a pre

- existing
requ irement stemming from the 1983 regulations that remain fundamentally unchanged by today ’s rule. To the extent the commenters are making assertions about the past, such claims are unsupported by the comments. To the extent the commenters are making assertio ns about the future, such claims are speculative. As such, these comments are outside the scope of this rule, and do not require EPA response. States and authorized tribes continue to have the discretion to demonstrate that the uses specified in CWA section 101(a)(2) are unattainable or, as an alternative, to maintain their WQS to serve the 101(a)(2) goal and objective of the CWA.



### B. **Other C omments**  **Related to the R ebuttable Presumption**  **Approach in EPA ’**  **s Regulations** 

EPA has long explained that its regulations that effectively establish a rebuttable presumption approach

are an essential foundation for effective implementation of the CWA as a whole. EPA ’ s 1998 A dvance
N otice of P roposed Rulemaking ( ANPRM ) explained that “ [t] his approach preserves S tates ’ and [ authorized ] T ribes ’ paramount role in establishing water quality standards, in this instance, in weighing any available evidence regarding the attainable uses of a particular water body. The rebuttable presumption approach does not restrict the discretion that States and Tribes have to determine that

“ fishable/swimmable ” uses are not, in fact, attainable in a particular case. Rather, if the water quality goals articulated by Congress are not to be met in a particular water body, the regulations simply requi re that such a determination be based upon a credible, “ structured scientific assessment ” of use attainability. ” (63 FR 367 49 , July 7, 1998 ).

EPA disagrees with comments that the rebuttable presumption concept creates a “ de facto ” use designation

. As discu ssed above, the regulations do not require states and authorized tribes to necessarily adopt the uses specified in section 101(a)(2) of the Act for all waters of the U.S., nor does it automatically designate the uses specified in section 101(a)(2) of the A ct for all waters of the U.S. in the absence of state or tribal action. R ather, it presumes that such uses are attainable unless demonstrated to be unattainable , per EPA ’ s regulations

. EPA disagrees with the commenter that EPA ’ s regulations limit

states ’ a nd authorized tribes ’ ability to revise use designations related to the uses specified in section 101(a)(2) of the Act even when

, as the commenter asserts

, were adopted with “ insufficient information. ” EPA ’ s prior existing regulations provide a reasonable avenue for removing those uses that are demonstrated to be unattainable.



### C. **Comments on Burden**

In response to commenters that contend that “ a presumption of this kind, if promulgated, would place a significant additional burden on States ,” EPA notes that is has not changed the requirements relating to what a state or authorized tribe must do when conducting a UAA, including a demonstration that it is not feasible to attain a use specified in section 101(a)(2) of the Act due to one of the regulatory factors. All of those requirements remain unchanged by today ’ s rule. Therefore, there is no incremental burden associated with this rulemaking related to the “ presumption of this kind. ”Chapter 3 – Response Essays 5.i – DU – EPA ’s Regulations and Rebutting the Presumption of Attainability

EPA generally disagrees with commenters who stated that the rebuttable presump tion is always difficult to overcome, and that it places a large burden on state resources by creating a de facto use designation that the CWA 101(a)(2) uses are attainable unless demonstrated otherwise through a UAA. As discussed in sub section B of this e ssay, the rebuttable presumption does not actually create a de facto use designation that is automatically applicable. Rather, it is a basis for state/tribal WQS actions or EPA promulgations. EPA has approved designated use changes based on UAAs that range from simple to complex. Whether a UAA will be simple or complex will vary on a case

- by

- case basis based on a number of factors, such as the type of water body involved, the size of the segment(s) and/ or the number of water bodies involved (if doing a categorical UAA), the characteristics of the water body, the designated use being changed and the relative degree of change, the factual showing needed to make a demonstration that attaining the designated use is not feasible using one or more of the factors

s pecified in section 131.10(g), the level of public interest/involvement in the designated use decision, etc. A discussion of some examples displaying the various spectrum of UAAs is available at http://water.epa.gov/scitech/swguidance/standards/uses/uaa/index.cfm

. For discussion re garding cost burden due to the final rule , see EPA ’s e conomic a nalysis (EA) final rule (which did not analyze cost or burden associated with the rebuttable presumption approach in general because, as discussed above, regulations that effectively create the presumption ha ve existed since 1983, and thus any cost or burden related to it is not attributable to this final rule)

. See also response essay 12.a for a discussion on costs and burden of the final rule

.



### D. **Comments on Link to**  **Use Attainability Analyses**  **and Total Maximum Daily**  **Loads**

Some commenters contend that UAAs should be conducted pri or to adopting any of the uses specified in section 101(a)(2) of the Act

. In finalizing its 1983 requirements

, EPA rejected this approach of requiring the state to affirmatively demonstrate that the uses specified in 101(a)(2) of the Act are attainable and instead codified 40 CFR section 131.10(k), which provides that a state or authorized tribe may forgo a UAA if it includes the section 101(a)(2) goal uses in its use designations. EPA determined that such an approach is consistent with section 510. See 48 Fe d. Reg. at 51,401. In response to the commenters who suggest that EPA encourage or require states and authorized tribes to review the attainability of designated uses before a TMDL is developed and adopted, EPA does not agree or disagree and notes that TMDL processes may be coordinated with use refinement processes before, during or after a TMDL is conducted. The timing of such coordination is at the discretion of the state or authorized tribe. For additional discussion on th ese specific issu es , please see response essay 5.j.

EPA disagrees with comments that the regulation will no longer require states and authorized tribes to justify an upgrade to a use specified in section 101(a)(2) designated use. The regulation never required states and authorized tribes to conduct a UAA when “ upgrading ” to a use specified in section 101(a)(2)

. The regulation is established to ensure that states and authorized tribes are evaluating attainability of the uses specifi ed in CWA section 101(a)(2) before adopting uses other than uses specified in section 101(a)(2)) or uses that do not protect the uses specified in section 101(a)(2) of the Act . O nce a UAA is done and demonstrate s that such uses are not attainable under tod ay ’ s rules the state or authorized tribe must adopt the highest attainable use ( HAU ) as defined in section 131.3(m) . During the triennial review process

, section 131.20(a) ensures that states and authorized tribes are reevaluating the attainability of such waters at least once every three years through a public hearing process to determine whether new information has become available to indicate that the uses specified in section 101(a)(2) of the Act are attainable and, if so, upgrade their uses accordingly . However, when upgrading a designated use to a use specified in section 101(a)(2) , a UAA is not required in the final rule as specifiedChapter 3 – Response Essays 5.i – DU – EPA ’s Regulations and Rebutting the Presumption of Attainability

in section 131.10(k)(2). If uses specified in section 101(a)(2) of the Act are not fully attainable, then under EPA ’ s prior existing regulations, a state or authorized tribe must upgrade its uses to protect what is presently being attained. See 40 CFR 131.10(i). For additional discussion on this specific issue, please see response essay 5.c.



### E. **Comments on Hierarchy Cre ated by Rebuttable Presumption** 

EPA generally disagrees with the comment that the rebuttable presumption is, in effect, c reating

“ preferred ” (i.e., the uses specified in section 101(a)(2) of the Act that are presumed attainable) and

“ non

- preferred ” (i.e., n on

- 101(a)(2) ) uses. T he CWA itself specifically calls for the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water (i.e., CWA section 101(a)(2) uses) as the national goal, wherever attainable ; however , this does not mean that non

- 101(a)(2) uses are not important or ever appropriate , nor does it mean that non

- 101(a)(2) uses may be removed without adequate documentation or public process (consistent with CWA requirements , specifically
section 131.10(a) ). The final rul e makes revisions to section 131.10(a) to explicitly require a state or authorized tribe to submit documentation justifying how its consideration of the use and value of water for those uses listed in section 131.10(a) (which include both the uses specified in section 101(a)(2) of the Act, as well as non 101(a)(2) uses) appropriately supports the state ’ s or authorized tribe ’ s action to remove any of those uses

. For additional discussion on this issue, please s ee response essay s 5.k. and 5.h.Chapter 3 – Response Essays 5.j. – DU – Other General



## Essay 5.j. **– Designated Uses: General Comments** 

**A. Reviewing the Attainability of Uses** 

The U.S. Environmental Protection Agency ( EPA ) acknowledges several commenters’ suggestion s that EPA encourage or require states and authorized tribes to review the attainability of designated uses before a total maximum daily load (TMDL) is established . States and authorized tribes may coordinate their TMDL processes with their designated use r efinement process before, during, or after a TMDL is established

. The timing of such coordination is at the discretion of the state or authorized tribe . It is important, however, that the information collected is shared, as the stakeholder process and anal yses used for a use attainability analysis ( UAA ) and the development of a TMDL can play a large role in informing each other. See essay 5.i for further discussion.

To effectively make use of the resources dedicated to these processes, states and authorized tribes should consider evaluating the attainability of their designated uses during the TMDL development process. Such an approach may have a number of benefits. By designating a use known to ultimately be attainable for an impaired waterbody (and associated scientifically sound criteria to protect that use) , a
state or authorized tribe can develop TMDLs using the most appropriate targets. TMDLs developed to meet appropriate water quality standards (WQS) will result in the development of appropriate waste load allocations for point sources and load allocations for nonpoint sources (NPS) . These allocations will, in most cases, ultima tely affect proposed controls. In addition, the information gathered to develop a TMDL, and the allocations in a TMDL, may poin t to the need for a design ated use change (and possibly

a UAA).

In addition to ensuring appropriate targets, coordinating the designated use refinement and TMDL development processes may allow for a more collaborative approach where states/ authorized tribe s and stakeholders can discuss issues that may influence both processes. This method provides a forum for affected parties, who may be the same for both processes, to discuss the ways in which to best identify and achieve appropriate WQS and meet local needs. This approach may be particularly helpful where a UAA can assist in finding other unknown causes or sources of impairment. Finally, with a collaborative approach, states and authorized tribes can evaluate designated uses and deve lop TMDLs in a coordinated fashion to spur cross

- program information exchange (e.g., water quality data, formulation of multi

- stakeholder teams and workgroups). This approach may also yield a current and historical assessment of the effectiveness of modeling tools, best management practices (BMPs) , resources, and partnerships. A coordinated process may also allow a state or authorized tribe to combine public participation requirements for establishing a TMDL and revising a state/tribal WQS, as needed.

As me ntioned earlier, states and authorized tribes have discretion to determine whether to do the designated use refinement and TMDL development processes sequentially or simultaneously. If a state

or authorized tribe chooses to do them sequentially, there are a number of factors that it may want to consider in determining the order. In particular, it is important for states and authorized tribes to consider the time needed to adopt revised WQS should a use re

- designation be appropriate. Many state/ authorized tr ibal regulation adoption processes can take two to three years to effect a change. Depending on TMDL

- development schedule, a state or authorized tribe may not have the flexibility to wait several years to finalize a TMDL. However, if a UAA is completed after a TMDL is finalized, the TMDLChapter 3 – Response Essays 5.j. – DU – Other General

may need to be revised to reflect the newly refined use. States and authorized tribes should consider ways to reduce the overall workload when determining the appropriate sequence.

For discussion relating to the definition of existing uses and a response to comments that states and authorized tribes should evaluate the attainability of existing uses, please see response essay 5.d.

EPA disagrees with the comment that UAAs should be conducted prior to adopting any of the uses specified in section 101(a)(2) of the Act. For a response to this comment, please see the response essay 5.i about the “rebuttable presumption.” See also comment response essay 5.h.

EPA acknowledges the comment that it should encourage or require states an d authorized tribes to review the attainability of designated uses during the triennial review of WQS. EPA’s prior existing regulations at 131.20(a) provided that for “[a] ny water body segment with water quality standards that do not include the uses speci fied in section 101(a)(2) of the Act shall be re

- examined every three years to determine if any new information has become available. If such new information indicates that the uses specified in section 101(a)(2) of the Act are attainable, the State shall revise its standards accordingly.” In the preamble to the proposed rule, EPA “recommends that states and tribes consider the HAU during a triennial review. If new information becomes available during a triennial review to indicate that a use higher than wh at is currently designated is attainable, states and tribes should revise their WQS to reflect the HAU” (78 FR 54524). EPA considered requiring states and authorized tribes to always adopt the highest attainable use ( HAU ) in section 131.20(a) as part of their triennial review process; however, in an effort to limit the burden on states and authorized tribes EPA instead limited the HAU requirement to only instances where a UAA is required per section 131.10(j). EPA does not believe such a provision is counte r to the goals of the Clean Water Act ( CWA ) because EPA’s regulation

at section 131.10(i) also requires that “where existing water quality standards specify designated uses less than those which are presently being attained, the State shall revise its standards to reflect the uses actually being attained.” Title 40 of the Code of Federal Regulations ( CFR ) section 131.20(a) clearly requires states and authorized tribes to revise their WQS in instances where new information indicates that uses specified in se ction 101(a)(2) of the Act are attainable; therefore, EPA does not view the word “should” as being in conflict. For additional discussion in triennial review, please see response essay 6.g.



### B. Flexibilities

Multiple commenters suggested that EPA provide greater flexibility in the context of designating uses and assessing use attainability, to account for location

- specific characteristics (e.g., arid states with a large number of intermittent or ephemeral streams).

EPA agrees with the comments that states and authorized tribes should have flexibility in methods used to evaluate attainability of designated uses. While EPA’s regulations provide specialized requirements for uses specified in section 101(a)(2) of the Act and subcategories of such uses, includin g the requirement to demonstrate that such a use is not feasible because of one of the six regulatory factors, there are other WQS mechanisms available that may allow a state or authorized tribe to deal with pollutant specific or location specific challenges to attainability more effectively than revising or removing a designated use. Such mechanisms include adopting a WQS variance and/or establishing site

specific criteria. Where a designated use cannot be attained immediately but there is no uncertainty

a round the ultimate attainability of the designated use, permit compliance schedules (CS) may be the most appropriate mechanism to give dischargers time to come into compliance with their permit requirements. In addition to these mechanisms and in response to comments, to streamline a state’s orChapter 3 – Response Essays 5.j. – DU – Other General

authorized tribe’s efforts to designate more accurate uses, the state or authorized tribe may conduct a categorical UAA if it can identify multiple waters or waterbody segments with similar characteristics and

constr aints on attainability. This efficient approach may reduce regulatory and process burden by allowing the state or authorized tribe to involve its public in one effort that uses a single analysis to represent many sites. To use such an approach, however, it is critical to have enough information about each particular site to reliably place it into the category. The public is an integral resource for obtaining sufficient information to reliably include waters in the categorical UAA. Such information can be ob tained from the public during the public hearing process as well as the triennial review process or any other process the state or authorized tribe establishes to obtain public feedback.

EPA agrees with comments stating that the degree of analysis necessar y when showing that a designated use is, or is not, attainable may vary based on the characteristics of different waterbodies and, in some situations. In addition, whether a UAA and/or associated new or revised WQS can be “expedited” is likely to depend up on a particular state’s or authorized tribe’s administrative process. As discussed earlier, in some situations, a categorical UAA may be appropriate and may streamline the administrative process enough that use revisions can be adopted and approved quicker than if the state or authorized tribe conducts a separate UAA for each water body or waterbody segment and adopts each individual use change in separate actions. In regards to the degree of analysis, EPA emphasizes that a UAA is defined under EPA’s regula tions as a “structured scientific assessment” and therefore must provide an adequate scientific and technical rationale in the administrative record to support the resulting designated use change consistent with CWA requirements and EPA regulations. States and authorized tribes may use state/tribal/regional

- specific guidance documents, a certain protocol, or standard operating procedures (SOPs) when conducting the UAAs. Regardless of the methods used, EPA’s review is based upon whether the ultimate WQS revision meets the requirements of the CWA and federal regulations. EPA has approved designated use changes supported by UAAs that range from simple to complex. Whether the UAA will be simple or complex will vary on a case

- by

- case basis based on a number of fa ctors, such as the type of water body involved, the size of the segment(s) or the number of water bodies involved (if doing a categorical UAA), the characteristics of the water body, the designated use being changed and the relative degree of change, the f actual showing required to make a demonstration that attaining the designated use is not feasible using one or more of the factors specified in section 131.10(g), the level of public interest/involvement in the designated use decision, etc. A discussion of some examples displaying the varying spectrum of UAAs is available at http://water.epa.gov/scitech/swguidance/standards/uses/uaa/index.cfm

.



### C. **Use Attainability Analys es**  **and Section**  **131.10(g) Factors**

While EPA agrees that UAAs should not be required when states and authorized tribes adopt new or revised non

- 101(a)(2) uses, EPA disagrees with the commenter that a UAA should not be required when a state or authorized tribe is adopting new or revised designated uses that are “less” than the uses specified in CWA section 101(a)(2) (i.e., subcategories of uses specified in section 101(a)(2) of the Act). Please see response essay 5.h. for additional discussion about non

- 101(a)(2) uses . EPA disagrees that states and authorized tribes should be allowed to use their discretion to determine when a UAA is necessary in all cases. The commenter suggests that perhaps UAAs could be reserved for large, important water bodies or for waters with low flow. EPA acknowledges that the analysis included in a UAA may vary depending on the waterbody and the relevant attainability issues, but changing the regulations in such a way would be overly complex and difficult for states and authorized tribes to implement. In addition, EPA’s prior existing regulations allowed states and authorized tribes to address low flow issues in certain circumstances. See 131.10(g). That said, EPA disagrees that states andChapter 3 – Response Essays 5.j. – DU – Other General

authorized tribes should be able to avoid a UAA al l together and not have to consider the attainability of the use consistent with EPA’s regulations. As discussed in essay 5.g, EPA’s final rule revisions to 131.10(j), which specifies when a UAA is required, were refinements and are consistent with the 198 3 requirements and EPA’s implementation of those requirements

. Please see response essay 5.g. for a thorough discussion of how section 131.10(j) and (k) continues to implement the CWA in the same way that was intended when the 1983 WQS regulations were ado pted. Allowing states and authorized tribes full discretion to determine when a UAA is or is not required would be inconsistent with the intent of EPA’s implementing regulations to ensure that states’ and authorized tribes WQS continue to serve the water q uality goal in section 101(a)(2) of the Act where ver attainable, because states and authorized tribes would not necessarily evaluate attainability before removing a designated use and could thus remove an attainable use resulting moving water quality away from the CWA objectives.

EPA agrees with the commenter who understands the final rule as requiring states and authorized tribes to conduct a UAA for any water body that does not protect humans when consuming aquatic organisms, consistent with EPA’s interpr etation of CWA sections 101(a)(2) and 303(c)(2)(A). Please see response essay 5.k. for additional discussion on the legal rationale for EPA’s interpretation. If a state or authorized tribe wishes to demonstrate that a waterbody segment designated for aquat ic life cannot attain fish or shellfish consumption and therefore does not require human health criteria to protect for such consumption, then it must conduct a UAA and meet the requirements of section 131.10. If the state or authorized tribe pursues removing protection for humans when consuming aquatic life, the UAA must demonstrate why it is infeasible to attain such a designated use based on one or more of the factors at
section 131.10(g). If the state or authorized tribe adopts new or revised WQS based on this UAA, it would also have to identify and adopt the HAU in its place, consistent with section 131.10(g). It is important to note that if a state or authorized tribe believes that the designated use should be removed because there are no aquatic organ isms present in the water that are consumed by humans, it must describe how it determined what it considers to be consumable aquatic organisms and why when demonstrating that such a use is not attainable.

EPA agrees with the comment that the factors at sec tion 131.10(g) are not directly applicable to whether individuals or members of the pubic consume certain aquatic organisms. The factors at 131.10(g) relate to whether consumption of organisms is attainable. For example, if a state or authorized tribe believes that consumption of organisms is not attainable because there is no consumable aquatic life in the water, it may be able to demonstrate that the use is not attainable based on, for example, 131.10(g)(5) because physical factors preclude such aquatic o rganisms from being in the water body.

EPA agrees that it is important for EPA regional offices to work with states and authorized tribes on the development of UAAs, but disagrees with the comment that UAAs may slow down or stop the process of evaluating beneficial uses. EPA encourages states and authorized tribes to work with their appropriate EPA Regional office, as needed, regarding uses and UAAs before submitting the WQS revision and the UAA. EPA can provide early assistance in determining existing uses and address any policy and technical

q uestions that may arise. Early collaboration between states and authorized tribes and EPA Regional representatives will significantly facilitate the UAA and WQS review processes. Therefore, it is important for the state or authorized tribe to send EPA the draft UAA before any WQS revisions are proposed. An even more effective approach would be to engage EPA during the development of a UAA protocol, guidance, or standards operating procedures (SOPs) and to exchange information at the beginning, rather than t he end, of the UAA process. There have been many such successful coordination efforts since EPA sent its March 2006 memorandum to the EPA Water Division Directors entitled “ImprovingChapter 3 – Response Essays 5.j. – DU – Other General

the Effectiveness of the Use Attainability Analysis (UAA) Process.” For a dditional discussion on the economic impact of UAAs, see response essay 12.b.

EPA disagrees with the comment that indicates that states and EPA Regions are “not developing or approving UAAs”, despite the existence of the March 2006 memorandum. The commente r did not provide any specific data regarding the failure of states and EPA Regions to develop and/or approve UAAs for EPA to respond to. However, EPA notes that it does not and would not force a state or authorized tribe to conduct a UAA and downgrade its 101(a)(2) designated uses (consistent with CWA section 510). Such a decision is at the discretion of the state or authorized tribe, as long as its actions satisfy minimum CWA and federal requirements. Where states and authorized tribes submit a designated use revision based on a UAA, EPA must approve or disapprove it in a timely manner. EPA can only approve a use change if it meets the requirements of the CWA, and EPA’s implementing regulation.

EPA received comment on the topic of designating uses where th ere is a “tributary rule” in place. Some states and authorized tribes have regulations, often preceding EPA’s 1983 WQS regulations, which allow the state or authorized tribe to apply the designated use of a larger downstream water to its smaller upstream u nclassified tributaries. This is often used where a state or authorized tribe does not specifically name very small waters in their WQS but covers them in their WQS by applying a blanket “general default” set of WQS (usually with narrative protections). For example, if downstream “River Z” is designated for primary contact recreation, the state or authorized tribe would use the designation from “River Z” for any CWA implementation purposes on these small tributaries. States and tribes often refer to such a regulation as a “tributary rule.” However, using a tributary rule does not actually designate the use for those upstream tributaries. EPA generally expects that the tributary rule is used on smaller waters where there are no permitted point source discharges and that if such a discharger becomes permitted, the state or authorized tribe will specifically designate uses for that tributary, consistent with EPA’s regulations at section 131.10. EPA agrees with the commenter that where a state or authorized tribe is designating a specific use for a water body rather than continuing to rely on protection from a “tributary rule,” then this situation is considered designating a use “for a waterbody for the first time” as specified in section 131.10(j). In this instan ce, section 131.10(j) would specify that a UAA must be conducted whenever “The State designates for the first time ...uses that do not include the uses specified in section 101(a)(2) of the Act.” This is reasonable because where the upstream tributary is bei ng protected for a subcategory of a use specified in section 101(a)(2) of the Act because that is the designation of the downstream water, the presumption was never rebutted for the tributary itself. Therefore, the state or authorized tribe must rebut the presumption and demonstrate that the uses specified in CWA section 101(a)(2) are not attainable before designating anything less than the uses specified in CWA section 101(a)(2). Where the designated use of the downstream water protects the uses specified in section 101(a)(2), then there is no practical difference to whether the new designation is “for the first time” or a “revision” as the UAA will need to demonstrate that the use specified in CWA section 101(a)(2) is not attainable.

EPA acknowledges the c omment that EPA should provide guidance that hydrology is not the only factor determining attainability. EPA refers the commenter to section 131.10(g), which provides six factors that states and authorized tribes may choose from when conducting a UAA in ac cordance with 131.10(j). While these factors in 131.10(g) were unchanged by today’s rule, EPA notes that it will consider providing additional guidance on the factors subsequent to publication of the final rule.Chapter 3 – Response Essays 5.j. – DU – Other General



### D. **Highest Attainable Use**

EPA disagrees with the comment that the HAU should be based purely on a state’s best professional judgement (BPJ) , as well as the data and information that a state determines is the best available. For a response to this comment, please see response essays 5.f.i and 5.k.

EP A disagrees with the comment that EPA should be narrowing state s’ and authorized trib es’ discretion when determining how to reflect the HAU in WQS

. The commenter does not provide a clear example of what discretion EPA should narrow. EPA’s regulations provide a nationally consistent framework for how states and authorized tribes are to designate uses. Refining that framework, todays’ final rule revisions require adoption of an HAU, establish regulatory definitions for HAU and non

- 101(a)(2) uses, and clearly specify what is required to remove designated uses. These rules reasonably balance the need for national consistency with allowing states and authorized tribes to designate uses appropriate for their site specific situation. EPA does not have evidence nor does the commenter provide evidence showing that EPA’s regulations as proposed and finalized will lead to inconsistent implementation of the federal regulations. EPA’s preamble and response essays 5.f.i. and 5.k. discuss areas of states and authorized trib al discretion relating to these issues. As an example, the preamble to the final rule discusses that

, states and authorized tribes can choose different approaches that align with their specific needs, as long as the approach chosen results in WQS revisions that are consistent with the CWA and section 131.10

. Please see response essays 5.f.i and 5.k. discussing states’ and authorized tribes’ discretion as it relates to the HAU requirement.

EPA disagrees with the comment that states and authorized tribes must adopt a new use category or sub

- category of use in order to protect the HAU, if existing use categories would not adequately protect a water body’s HAU. EPA’s regulations do not require this result but it is true a state or authorized tribe may need to ad opt a new use category or subcategory in order to protect the HAU. EPA’s rule and preamble are clear that states and authorized tribes must adopt the HAU and that “Where a state or authorized tribe does not already have a statewide use in their regulation that is protective of the HAU, the state or authorized tribe will need to find an approach that meets the requirements of the CWA and § 131.10(g).” Please see response essays 5.f.i. and 5.k. for a fuller discussion of where states and authorized tribes hav e discretion and where they do not in regards to designating uses and the HAU

.
EPA acknowledges the commenter who stated that EPA should explicitly recognize that the HAU may not be fishable or swimmable. It is unclear what the commenter meant by this stat ement. If the commenter is stating that the HAU may not be the full use specified in section 101(a)(2) of the Act, but rather a sub

- category of such a use requiring less stringent criteria (e.g., a limited warm water fishery rather than a warm water fishery, or a secondary contact recreation use rather than a primary contact recreation use), then the EPA agrees, provided that the adoption of the HAU meets the requirements of the CWA and EPA’s regulation. If the commenter is asking EPA to recognize that it m ay be possible for a state or authorized tribe to demonstrate that there is no modified use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, based on the factors in section 131.10(g) that preclude attainment of the use (i.e., there is no HAU at all), then

-- in that scenario

-- EPA agrees that a state or authorized tribe may remove the use specified in section 101(a)(2) of the Act and not adopt a lesser use (i.e., a HAU ) in its place. See the definition of “highest attainable use” at 131.3(m). EPA also clarifies that states and authorized tribes are not required to determine whether one broad use category is better than another (e.g., to determine that a recreation use is better than an aquatic life use). Rather, the intent of the HAU provision is to require states and authorized tribes to adopt a modified use within the same broad CWA section 101(a)(2) use category as described in 131.3(m).Chapter 3 – Response Essays 5.j. – DU – Other General



### E. **Other Comments**

EPA acknowledges the suggestion that EPA amend the final rule to include a default use designation process. EPA is unclear what the commenter means by a “default use designation process,” but to the extent that the commenter is suggesting EPA promulgate the uses specified in section 101(a)(2) of the act as default uses to apply to the water bodies for which states or authorized tribes have not yet designated any uses (i.e., unclassified waters), EPA disagrees with the comment, at this time, because state/au thorized tribal

- specific designated uses are beyond the scope of this rulemaking. It is very important for states and authorized tribes to designate uses for all of their waters of the U.S. because states and authorized tribes are tasked with this primary role under the CWA in the first instance and such designated uses and the criteria to protect such uses serve the basis for CWA implementing programs, many of which states or authorized tribes play a key role. While EPA interprets and implements the CWA to create a rebuttable presumption that uses specified in section 101(a)(2) of the Act are attainable unless a state or authorized tribe affirmatively demonstrates through a UAA that such uses are not attainable, the regulation does not automatically designa te the uses specified in CWA section 101(a)(2) for all waters. Please see response essay 5.i. for additional discussion on the rebuttable presumption. However, the EPA Administrator may determine that new or revised WQS are necessary for one or more waters , per CWA section 303(c)(4)(B) and section 131.22, and may propose and promulgate new or revised WQS if he/she determines that such WQS are necessary. Please see response essays 4.a. through 4.e. for additional discussion on Administrator’s determinations.

EPA acknowledges a commenter’s request for additional discussion on the link between designated and existing uses , as well as additional discussion on determining whether a use is an existing use

. In
response, EPA will consider provid ing additional guidan ce on this issue after the final rule is published

. For additional discussion on existing uses, please see response essay 5.d.

For discussion on EPA’s expectations regarding the specificity of use categories, please see response essay 5.f.i. For a discussi on on defining an existing use, please see response essay 5.d.

EPA acknowledges the comments that it should adhere to the language of section 101(a)(2) of the CWA in the context of the final revisions to section 131.10(j). EPA has done so, and the commenters did not provide any specific example of how EPA is not adhering to the language of section 101(a)(2).See response essay 5.g. for further discussion about 131.10(j).

In response to one commenter, EPA recognizes that some states and authorized tribes have adopted state/tribal regulations guiding how they will adopt, revise, or refine designated uses. EPA recommends that such states and authorized tribes evaluate their program for consistency with the final regulations. States and authorized tribes should w ork with their EPA regional office as they evaluate their own programs to determine what revisions, if any, are necessary.

For discussion on how EPA describes WQS to include antidegradation requirements, please see response essay 10.a and 6.g.

Comments reg arding water survey techniques and assessments to evaluate aquatic life uses are outside the scope of this rulemaking as EPA did not propose regulatory language or request comment on the techniques a state or authorized tribe uses to gather data regarding its designated uses.Chapter 3 – Response Essays 5.j. – DU – Other General

To the extent that a comment excerpt is repeating statements from the proposed rule, CWA or pre

existing federal regulations, EPA is not responding. Where necessary, EPA corrected any factual
misstatements

.Chapter 3 – Resp onse Essays 5.k – DU – Legal



## Essay **5.k – Designated Uses: EPA’s**  **Legal Authority** 

**A. Comments**  **r egarding**  **EPA’s A**  **uthority for the Highest Attainable Use**  **R equirement** 

Some commenters questioned t he U.S. Environmental Protection Agency’s ( EPA’s ) authority for the highest attainable u se ( HAU ) requirement as being inconsistent with the Clean Water Act ( CWA ), usurping the primary authority and discretion of states and authorized tribes to consider the “use and value” of their waters and designated uses under 303(c)(2)(A). EPA acknowledges that states and authorized tribes have the primary authority and responsibility to adopt water quality standards ( WQS ). The CWA does not, however, vest so le discretion to the states and authorize d tribes to decide on appropriate designated uses. The CWA gives EPA an important ove rsight role and authorizes EPA to adopt regulations for implementing the statute. While CWA section 303(c)(2)(A) does require s tat es and authorized tribes to establish use designations “taking into consideration” the waters’ use and value for a variety of purposes, including public water supplies, propagation of fish and wildlife

, recreational

purpose s, and agricultural uses, that sa me section also directs that “[s]uch standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of [ this Act ] .” As discussed below, EPA’ s regulation requiring the adoption of the HAU when removin g a CWA section 101(a)(2) use is consistent with this directive and reasonably establishes requirements to serve the purposes of the Act and enhance the quality of the water

.
EPA’s 1983 regulations established requirements that WQS protect the uses specifi ed in section 101(a)(2) of the Act unless those uses are shown to be unattainable

. The HAU requirement applies after the state or authorized tribe has demonstrated that uses specified in section 101(a)(2) of the Act (or subcategories of such uses) are not fully attainable but the water body at issue can still support some level of protection related to the uses specified in section 101(a)(2 ) of the Act (i.e., subcategory of a use specified in section 101(a)(2) of the Act)

. As mentioned above, t he statutory language in section 303(c)(2)(A) requiring that WQS “shall be such as to enhance the quality of the water and serve the purposes of [the Act] ” again

, provides direction. Generally speaking, the focus of this language is toward more protective, not less pro tective, WQS

. Most importantly and relevant to the HAU requirement , the
CWA 101(a)(2) and 303(c)(2)(A) make clear that states and authorized tribes are to move toward WQS that protect the uses specified in section 101(a)(2) of the Act wherever those uses a re attainable and toward the ultimate goal of maintain and restoring the chemical, physical and biological integrity of the nation’s waters. EPA disagrees with commenters that the HAU requirements “ renders meaningless the statutory comment to consider ‘ use and value ’ ” and that that “ requiring the HAU for every water segment would bias the consideration of ‘ use and value ’ of a water. ” It would be inconsistent with the
CWA given the directive in sections 303(c)(2)(A) and 101(a)(2) goal to allow states and aut horized tribes to base their designated use decisions solely on consideration of the “use and value” and not protect waters for the goal uses where attainable.

Today’s regulation explicitly requir es that the HAU be adopted where the state or authorized tri be has not demonstrated that the goal ’ s uses (or subcategories of such uses) are unattainable. This regulation is reasonable for a number of reasons. First, designated uses are the foundational building block for the WQS program . T he "use" of a water body is the most fundamental articulation of its role in the aquatic and human environment . A ll of the water quality protections established by the CWA follow from the water's designated use. Therefore, an explicit provision requiring states and authorized trib es to adoptChapter 3 – Resp onse Essays 5.k – DU – Legal

the HAU lays the foundation for WQS that continue to “ serve ” the specific goal of providing for the protection and propagation of the uses specified in section 101(a)(2) of the Act and “ serve ” the statute’s overall purpose of restoring and maintaining the integrity of the Nation’s waters as well as the directive that WQS enhance the quality of the water

. Absent the protection provided by the HAU requirement

, a state’s or authorized tribe’s (1) failure to adopt a ny use related to the protection a nd propagation of fish, shellfish, and wildlife, and recreation in or on the water (and thus no criteria) where a waterbody is currently attaining or could feasibly attain such a use (even if limited or modified ) or (2) adoption of a designated use less protective than the HAU level (and associated water quality criteria that are less protective ) could result in the degradation of water quality that would be contrary to the objectives of the Act. Such a result would adversely affect aquatic ecosystems and the health of the public recreating
in or on such waters. W ithout such protections reflected in the state’s or authorized tribe’s designated uses, there will not be a requirement for protective criteria and therefore the CWA implementing programs will not be implemented in a manner to achieve those levels of protection

. EPA recognizes that in some instances the HAU may reflect the status quo ( e.g., a subcategory of a use specified in 101(a)(2) of the Act ) , but identifying the status quo as the water qualit y goal will ensure that some water quality related to the 101(a)(2) goals are, at a minimum, maintained and would prevent further degradation

. The HAU requirement employs a step

- wise approach to ensure that as states and authorized tribes adopt and remove uses that protect for uses specified in 101(a)(2) that they fully consider and adopt such uses “wherever attainable .”

Second, establishing an explicit requirement in the regulations provides a decision

- making framework that is clear and sets a level playing field for all states and authorized tribes

. The rule also provide s a framework for states and authorized tribes to engage with the public during the public hearing process as they adopt new or revised goal uses

. In addition, the HAU requirement provides EPA with an objective standard by which it can reasonably exercise its oversight authority to ensure that states and authorized tribes are considering the relevant information necessary to adopt WQS consistent with 303(c)(2)(A).

Third, the HAU requir ement (as well as the use attainability a nalysis [ UAA ] requirement) only apply when a state or authorized tribe is revising its designated uses in one of the ways specified in section 131.10(j). Once such uses are justifiably revised consistent with the relevant requirements, EPA’s regulations do not require a UAA or HAU if and when a state or authorized tribe upgrades the designated uses for a particular waterbody. See 131.10(k)(2). The regulatory requirements focus on revisions that are not protecting for the use specified in section 101(a)(2) of the Act. Specifically, the HAU requirement, which serves as a mechanism to ensure that state/authorized tribal WQS maintain water quality protections for designated uses related to the uses specified in section 10 1(a)(2), where attainable

, is a reasonable approach to implementing the CWA consistent with EPA’s oversight authority. EPA disagrees with the commenter that argues the lack of a UAA or HAU requirement to upgrade a use is “an authorization to the states to be arbitrary and capricious.” In these circumstances

a ny new or revised designated uses would still need to meet all the other applicable requirements, including 131.10(a) which provides that “[i]f adopting new or revised designated uses other than the

use s specified in section 101(a)(2) of the Act, or removing designated uses, States must submit documentation justifying how their consideration of the use and value of water for those uses listed in this paragraph appropriately supports the State’s action .” However, it is important to note that when a state or authorized tribe is “upgrading” to adopt the full uses specified in section 101(a)(2), neither a UAA nor a use and value demonstration is required. Please see response essay 5.i. for additional discussi on.Chapter 3 – Resp onse Essays 5.k – DU – Legal

Finally

, the HAU appropriately preserves the primary role of states and authorize d tribes in establishing designated uses

. EPA disagrees with comments that the HAU requirement undermines state s’ and authorized tribes’ authority to make an appropriate H AU determination. The HAU requirement does not restrict the discretion that s tate s and authorized tribes have to weigh evidence relevant to whether uses specified in section 101(a)(2) of the Act or subcategories of such uses are not attainable in a particu lar

case. In addition, today’s rule specifically provides that there is no required HAU “where the State demonstrates that the relevant use specified in section 101(a)(2) of the Act and sub

- categories of such a use are not attainable.” Title 40 of the Code of Federal Regulations ( CFR ) section 131.3(m). Similarly, the HAU requirement does not remove the discretion that s tate s and authorized tribes have to weigh evidence relevant to what is attainable in a particular case. The regulations just require that if a state or authorized tribe adopts new or revised WQS based on a required UAA , the state or authorized tribe must then adopt the “ modified aquatic life, wildlife, or recreation use that is both closest to the uses specified in section 101(a)(2) of the A ct and attainable, based on the e valuation of the factor(s) in § 131.10(g) that preclude(s) attainment of the use and any other information or analyses that were used to evaluate attainability. ”

EPA disagrees with commenters that argued that by promulgatin g the HAU requirement EPA is turning the “goals” of the Act into independent requirements

. One commenter pointed to the specific language
in section 101(a) of the CWA that provides that the goals are to be implemented “consistent with the provisions of thi s Act.” The commenter then goes on to note that the language in 303(c)(2)(A) expressly gives s tates the authority to establish uses for waters, “taking into consideration their use and value” for a variety of uses. This comment ignores the directive in 303 (c)(2)(A) that WQS shall “serve the purposes of this Chapter.” EPA is appropriately considering the objective of the Act and the goal as set forth in

se ction 101(a)(2) to interpret the statutory language that already exists in CWA section 303(c)(2)(A) in developing an appropriate regulatory framework for achieving the objective and 101(a)(2) goal and ensuring that “standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of [this Act].”

T oday’s rule makes clear that the UAA requirement does not apply to non

- 101(a)(2) uses . This is a significant change from EPA’s previous interpretation laid out in the A dvance N otice of P roposed
R ulemaking ( ANPRM ) that specified that a UAA is required regardless of the use in question. As discussed further in response essay 5.h., EPA is implementing CWA sections 303(c)(2)(A) and 101(a)(2) to differentiate between the uses specified in section 101(a)(2) of the Act (and subcategories of such a use) and non 101(a)(2) use. As such, today’s rule clearly specifies that the specialized requirements for designating or removing uses at section 131.10(g) are not requirement when designating or removing non 101(a)(2) uses. Such specialized requirements are specific for uses s pecified in 101(a)(2) of the Act and subcategories of such uses because they are set apart from the CWA 303(c)(2)(A) uses by the goals of CWA section 101(a)(2). Rather than being required to conduct a UAA, t oday’s rule added clarifying language in 131.10(a ) and (k) explaining that when designating and removing non

- 101(a)(2) uses “states must submit documentation justifying how its consideration of the use and value of water for those uses listed in 131.10(a) appropriately supports the state’s or authorized tribe’s action.” This means for non

101(a)(2) uses, states and authorized tribes have discretion to weigh the use and value of the designated uses so long as their decision s are appropriately supported and meet other applicable CWA requirements

. EPA notes that for non

- 101(a)(2) uses decisions involving the public health or welfare or impact on the quality of the water, that such consideration of the use and value would be consistent with requirement in 303(c)(2)(A) that standards “shall be such as to protect public health or welfare or enhance the quality of the water.” See essay 5.h. for additional discussion.Chapter 3 – Resp onse Essays 5.k – DU – Legal

A commenter also questioned EPA’s authority to create a preference for certain designated uses by a rulemaking action and argues that today’s rule re presents a “fundamental change in the structure of the CWA” after contrary administration and implementation. EPA disagrees with this comment

. Please s ee
response essay 5.h. and 5.j. for a response.

A commenter noted that today’s rule would be the first time EPA would require the HAU. As explained in the preamble to the proposed rule (78 FR 54523 , September 4, 2013 ), in order to comply with 40 CFR 131.6(a) states and authorized tribes will need to ado pt designated uses that continue to serve the 101(a)(2) goal by protecting for the HAU unless the state or authorized tribes has shown that no use specified in 101(a)(2) or no subcategory of such uses are attainable

. Today’s rule allows for more effective implementation by clearly and explicitly articulating the requirement in EPA’s regulation and adding a definition. Please refer to the final rule Economic Analysis (EA) for information related to EPA’s estimates of burden and costs related to the HAU requi rement.

Other commenter s contend that because the CWA doesn’t mandate that states and authorized tribes develop sub

- categories of 101(a)(2) uses , the HAU concept is an intrusion on state flexibility and authority

. EPA disagrees with these comments. EPA ack nowledges that the implementation of the HAU provision may require the state or authorized tribe to adopt a sub

- category

. While under EPA’s 1983 regulation in 131.10(c), subcategories are optional, EPA explained when promulgating that rule that,

“ EPA is at tempting to convey the concept that some use classifications included in the Act and in State standards are so broad that they do not adequately describe to the public the actual use to be protected. The final rule provides that a State may, because of physical, chemical, biological, and economic factors, wish to adopt sub

- categories of a use and set criteria appropriate to protect a particular use sub

- category.” Water Quality Standards Regulations, 48 Fed. Reg. 51400, 51409

- 10 (November 8, 1983). T he requi rement to adopt uses to reflect what is attainable that relate to physical, chemical, biological and economic factors provided in 131.10(g) is at the heart of the HAU requirement and as discussed above, such a step

- wise approach protect s what is attainable to ensur e that WQS enhance the quality of the water and serve the purpose of the Act. For additional discussion on HAU, please see response essays 5.f, 5.f.i, and 5.f.ii.

EPA notes that t oday’s final rule preamble clarifies how EPA’s pr ior existing regulations interact with this new HAU requirement: “Section 131.10(c) provides that states and authorized tribes “ may adopt sub

categories of a use...” (emphasis added). This provision generally allows states and authorized tribes to adopt sub

- categories of the uses specified in the CWA. Today’s rule is finalizing revisions to § 131.10(g) to specify that when a state or authorized tribe conducts a UAA required by § 131.10(j), and the state or authorized tribe revises its WQS to something other t han a use specified in section 101(a)(2) of the Act, the state or authorized tribe must adopt the highest attainable modified aquatic life, wildlife, and/or recreation use (i.e., a sub

- category of an aquatic life, wildlife, and/or recreation use). Where a UAA is not required by § 131.10(j), the state or authorized tribe retains discretion to choose whether to adopt sub

- categories of uses per § 131.10(c).”

One commenter argues that the rule works against 305(b) and 101(b). The commenter cites to 305(b) to

su pport an argument that “ Congress' intent that costs and benefits be considered in working toward the goals of the Act. ” The comment goes on to say that “[i]t requires states to submit biennial reports that include, among other things, estimates of the "eco nomic and social costs" necessary to achieve the objectives of the Act and the "economic and social benefits" of such achievements. ” Section 305(b) is not addressing adoption of WQS at issue in this rulemaking. EPA notes that its prior existing regulations allowed for use removals where water quality based controls would result in substantial and widespreadChapter 3 – Resp onse Essays 5.k – DU – Legal

social and economic impacts. EPA disagrees with comments that today’s rule is contrary to CWA section 101(b). EPA acknowledges that states and authorize d tribes have primary authority and responsibility to adopt WQS but CWA section 303(c) prescribes specific requirements for WQS and provides EPA with an important oversight role.

For all the reasons discussed above, EPA’s HAU requirement is consistent with the statute and reflects a permissible construction of the statute and therefore EPA is finalizing a rule including the HAU requirement.



### B **. Comments R**  **elated to EPA’s**  **P osition T**  **hat C**  **onsumption of A**  **quatic L**  **ife U**  **ses A**  **re I**  **ncluded u**  **nder the U**  **ses S**  **pecified in S**  **ection 101(a)(2) of the Act**

EPA disagrees with comments that it is expanding the uses considered under section 101(a)(2) of the CWA and that consumption of aquatic life is not a use specified in section 101(a)(2). As discussed in the preamble to the proposed rule, since 1992 EPA has publicly articulated its interpretation that the goals of the CWA are not only to protect for the propagation of fish, shellfish, and wildlife, but the health of the public when consuming fish, shellfish, and other aquatic life. 1 Based on the CWA section 303(c)(2)(A) requirement that WQS protect public health, EPA interprets the CWA to mean that the uses under section 101(a)(2) of the Act are intended to protect public health, as well, and thus includes providing for the pr otection of aquatic communities and human health related to consumption of this aquatic life

. In other words, not only can the aquatic life thrive in a water body, but when caught, they can also be safely eaten by humans. 2 In the National Toxics Rule, for example, EPA specified that all waters designated for even minimal aquatic life protection (and therefore a potential consumption exposure route) are protected for human health. 3 EPA also described its interpretation in the October 2000 Human Health Method ology. 4 Consistent with this interpretation, most states and authorized tribes have adopted human health criteria as part of the protection for aquatic life uses, as the purpose of the criteria is to limit the amount of a pollutant in aquatic species prior to consumption by humans. However, states and authorized tribes may also choose to adopt human health criteria as part of their protection for recreational uses, recognizing that humans will consume fish and shellfish after fishing, which many states and authorized tribes consider to be a recreational use. EPA leaves this flexibility to states and authorized tribes as long as the waters are protecting humans from adverse effects of consuming aquatic life, unless it has shown that consumption of aquatic lif e is unattainable, consistent with EPA’s regulation.



### C **. Other Comments**

Others commenters contend that the HAU requirement will make the UAA process more burdensome and complicated and less likely to result in a s tate or authorized tribe ever obtaining a cr edible and defensible change to its uses. EPA acknowledges that the adoption of the HAU may require additional work on the state’s or authorized tribe’s part but

, as discussed, the regulatory requirements are reasonable because they limit the HAU to what was used to evaluate attainability to demonstrate that the use is not attainable and provide states and authorized tribes with discretion regarding how to

1 78 Fed. Reg. 54522.

2 http://water.epa.gov/scitech/swguidance/standards/upload/2000_10_31_standards_shellfish.pdf

. 3 57 Fed. Reg. 60859 (December 22, 1992).

4 http://water.ep a.gov/scitech/swguidance/standards/criteria/health/methodology/index.cfm ; see pages 4

- 2 and 4- 3.Chapter 3 – Resp onse Essays 5.k – DU – Legal

reflect the HAU in their WQS so long as it is consistent with CWA requirements and EPA’s regulation

. P lease see response essay 5.f.i. for additional discussion on any burden that determining an HAU might have. To address the concern that the proposed definition will make the UAA process less likely to ever result in a state or authorized tribe obtaining a credible and defensible change of designated uses, the final rule revised the definition of HAU. The final HAU definition makes clear that the HAU is the use that results from the process of determining what is attainable and thus informed by the more obje ctive UAA analysis. Finally, EPA believes that the HAU requirement will facilitate moving use changes through the public participation process because it will allow the public to assist the state or authorized tribe in a collaborative manner to determine t he HAU rather than focusing on fighting whether the previously designated use is in fact unattainable. Please see section II.B of the final rule preamble and response essays 5.e. and 5.f., 5.f.i, and 5.f.ii for additional discussion

.
In regards to the comment questioning the legal authority of EPA to regulate nonpoint source (NPS) pollution through the evaluation and use of best management p ractices ( BMPs ) , or otherwise, EPA’s requirement at 131.10(d) existed prior to this action to revise EPA’s rule. EPA did not propose any revisions to this provision or to 131.10(h)(2). While EPA discussed these provisions in the preamble , EPA only took comment on interpretations expressed in the discussion. EPA did not reopen th ese provision s. Nor do es the comment address any interpretation expressed. Regarding the comment made, EPA points out that its WQS regulations do not regulate NPS pollution nor do the y require states to regulation NPS pollution. T his comment goes beyond the scope of this rulema king.

Some commenters argued that EPA’s proposal reflects EPA’s intent to re

- write the entire 131 regulations and therefore the entire part is subject to comment. EPA strongly disagrees and provides its explanations in essays 1.c. and 3.a.