CHAPTER 2 

Issue Category: Administrator’s 

Determination 

Pages 2-146 – 2-229

Response to Public Comments

Water Quality Standards Regulatory Revisions

August 2015

40 CFR Part 131

Docket #: EPA-HQ-OW-2010-0606

This document is part of a larger document.
Chapter 2 - Comment Documents Administrator’s Determination 

4 - ADMINISTRATOR’S DETERMINATION 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

4.A - ADMIN - GEN SUPP 

Comment ID 0119-A1.001.003 

Author Name: Lemke Lee 

Organization: Georgia Mining Association 

Administrator's Determinations 

GMA supports EPA's proposal to prevent future confusion regarding which agency actions are to be considered in 

§303(c)(4)(B) determinations, doing so will prevent unnecessary litigation and ensure EPA's ability to provide 

nonbinding guidance to state and tribal authorities. Unfortunately, this is the only portion of the Proposed Rule that can 

accurately be described as a "clarification" and not the federalization of CWA authorities that were granted to state and 

tribal governments. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

3.a 

Comment ID 0121-A1.001.002 

Author Name: Whirley Gregory 

Organization: Virginia Department of Transportation 

(1) Administrator's Determination - §131.22(b) 

Language was added to amend §131.22(b) which helps to clarify that an Administrator's determination must be signed 

by the EPA Administrator or his or her duly authorized delegate and contain a statement that the document constitutes 

an Administrator's determination under section 303(c)(4)(B) of the Clean Water Act (CWA). This language helps to 

clarify when specific written documentation from the EPA is considered a recommendation or a determination that 

obligates the EPA to propose and promulgate new or revised standards. The addition of this language does not appear 

to cause an undue burden on VDOT. 

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Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0123-A1.001.005 

Author Name: Chin Ryan 

Organization: NA 

DISCUSSION 

Administrator's Determinations That new or Revised WQS are Necessary 

I support the proposal that clarifies that an Administrator's determination must be signed by the Administrator or a duly 

authorized delegate, and must include a statement that the document is a determination, for makes the document a 

determination under 303 (c) (4) (B). Specifically, the current iteration of the rule fosters confusion when the 

Administrator or EPA makes recommendation or suggestions to states in memoranda or documents about the states' 

WQS and the need for improvements. As those documents have been confused for official Administrator determinations 

and the surrounding implications from being an official determination, it is important to clarify when the Administrator 

actually makes a determination as opposed to providing recommendations for improvements. This clarification would 

allow the EPA to help guide and improve states' WQS, provide feedback, and give the states and tribes an opportunity 

to consider the EPA's views, without it being misconstrued as a official determination that can warrant litigation. This 

proposal would foster communication, cooperation by the different parties, and allows for better transparency while 

removing confusion in determining what is or is not an official determination by the Administrator. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0129-A2.001.005 

Author Name: Steidel Robert 

Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc. 

1. EPA Determinations that New or Revised Water Quality Standards are Necessary

 VAMWA supports EPA's proposal to amend the regulations to make it clearer when EPA has (or has not) made a 

determination under CWA section 303(c)(4). However, we have two specific comments on the manner in which the 

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Agency proposes to amend the rule. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

4.c 

Comment ID 0133-A2.001.002 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

1. Administrator Determination 

a. LDEQ supports improved definition of and more transparency in the process of the Administrator's "determination" 

that new or revised WQS are required by a particular state. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0134-A1.001.005 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

Administrator Determination 

EEI agrees that a determination by the Administrator under CWA section 303(c) that a federal water quality standard is 

necessary to meet the requirements of the Act must be an affirmative determination and cannot be inferred from 

statements in other agency documents. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

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Comment ID 0145-A2.001.005 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

Administrator Determination 

EEI agrees that a determination by the Administrator under CWA section 303(c) that a federal water quality standard is 

necessary to meet the requirements of the Act must be an affirmative determination and cannot be inferred from 

statements in other agency documents. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0148-A2.001.005 

Author Name: Rice Patrick 

Organization: Nebraska Department of Environmental Quality 

NDEQ supports the proposed language regarding EPA promulgation of WQS at 40 CFR § 131.22(b). We believe that 

the threat of third party interpretation as to what constitutes an Administrator's Determination has dampened EPA's 

communication with States in working to improve water quality standards programs. As co-regulators, dialogue between 

EPA and States needs to be open and unencumbered by such threats in order to improve water quality programs. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0149-A2.001.012 

Author Name: Michael Gene 

Organization: City of Pueblo Wastewater Department 

6. Administrator determinations. 

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The Proposed Rule includes clarification in section 131.22 of what constitutes an "administrator's determination" under 

Section 303(c)(4) of the Act that a standard is necessary to meet the requirements of the Act. This will promote 

communication between EPA and states without the concern that staff communications will be misconstrued as 

"administrator's determinations." Pueblo supports this proposed revision. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0153-A2.001.003 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

I. Administrator's Determinations That New Or Revised WQS Are Necessary. 

The State Water Board supports the proposed amendment to paragraph (b) to title 40 Code of Federal Regulations 

[FN3] section 131.22 to clarify which actions taken by the Administrator constitute a CWA 303(c)(4)(B) determination 

(78 Fed. Reg. 54546, col. 1), particularly insofar as it would allow the Administrator to make recommendations to the 

states on potential improvements to WQS without the risk that those recommendations could be construed as requiring 

EPA itself to develop new standards. 

[FN3] All references to "section" shall be to title 40 Code of Federal Regulations unless otherwise noted. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0156-A1.001.002 

Author Name: Jackie Kepke Adam Link 

Organization: California Association of Sanitation Agencies and Tri-TAC 

The Notice identifies six primary topics within the current WQS regulations that are being considered for modification. 

These include (1) parameters for Administrator determinations that new or revised WQS are necessary; (2) processes 

to identify and refine designated uses; (3) requirements for triennial reviews; (4) revisions to USEPA's involvement with 

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state antidegradation implementation policies and related requirements; (5) WQS variances; and (6) provisions 

authorizing the use of in-permit compliance schedules. 

1. Water Quality Standards Determinations 

With regard to the first issue, CASA and Tri-TAC fully support the proposed clarification in Notice Section III.B 9 (40 

CFR section 131.22(b)) that specifies Clean Water Act (CWA) section 303(c)(4)(B) determinations must be expressly 

identified and signed by the Administrator, and have no further comment on that issue. Our input on the remaining 

topics in the Notice as well as general comments on suggested revisions to the WQS regulatory clarifications are set 

forth below. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0160-A2.001.020 

Author Name: West Jeff 

Organization: Xcel Energy 

6. Administrator determinations. 

The Proposed Rule includes clarification in Section 131.22 of what constitutes an "administrator's determination" under 

Section 303(c)(4) of the Act that a standard is necessary to meet the requirements of the Act. This will promote 

communication between EPA and states without the concern that staff communications will be misconstrued as 

"administrator's determinations." Xcel Energy supports this proposed revision. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0165-A2.001.004 

Author Name: Gunderson Steven 

Organization: Colorado Department of Public Health and Environment 

COMMENTS ON PROPOSED REGULATORY PROVISIONS 

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3. Administrator's Determination That New or Revised WQS Are Necessary 

Colorado strongly supports EPA's proposal to specify what constitutes an Administrator's Determination. Clarification is 

necessary and appropriate since a variety of documents have been construed as such. This clarification will allow a 

more robust dialogue between EPA and the states as well as EPA and stakeholders. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0167-A1.001.004 

Author Name: Anderson Paul 

Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District 

Comments 

The Lower Fountain District respectfully offers the following specific comments. 

A. Administrator's Determinations per CWA 303(c)(4)(B) 

The District concurs with this clarification under the proposed rule at Section 131.22(b). Not every memoranda or other 

document published by EPA concerning the Clean Water Act ("CWA") provisions, especially internal correspondence, 

should be considered a "determination" for purposes of new or amended EPA water quality standards ("WQS"). 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0171-A2.001.007 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

Where an EPA-approved state plan is in place, barring clear evidence that a state is not executing its plan, the 

circumstances triggering the Administrator's discretion under CWA § 303(c)(4)(B) simply do not exist. Such was the 

case in Florida. Developing objective criteria for making a necessity determination-especially now that EPA recognizes 

that § 303(c)(4)(B) determinations are final agency action-would facilitate the goal of the Stoner memorandum to work 

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in partnership with the states to achieve nutrient reductions. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

4.c 

4.d 

Comment ID 0173-A1.001.007 

Author Name: Borkowski Winston
 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc.
 

Where an EPA-approved state plan is in place, barring clear evidence that a state is not executing its plan, the 

circumstances triggering the Administrator's discretion under CWA § 303(c)(4)(B) simply do not exist. Such was the 

case in Florida. Developing objective criteria for making a necessity determination-especially now that EPA recognizes 

that § 303(c)(4)(B) determinations are final agency action-would facilitate the goal of the Stoner memorandum to work 

in partnership with the states to achieve nutrient reductions. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

4.c 

4.d 

Comment ID 0175-A1.001.003 

Author Name: Canton Steven
 

Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd.
 

1.0 Administrator's Determination That New or Revised WQS Are Necessary 

Section 131.22 EPA promulgation of water quality standards 

EPA is proposing to amend this section to add a requirement that when the Administrator proposes or promulgates a 

regulation that sets forth a new or revised standard, the ‘Administrator's determination' must: "(1) be signed by the 

Administrator or his or her duly authorized delegate, and (2) contain a statement that the document constitutes an 

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Administrator's determination under section 303(c)(4)(B) of the Act." 

a. We support this proposed revision, as it would provide clarity as to which EPA actions are official determinations and 

which are merely recommendations or advice to the states and tribes. This revision should prevent, or at least minimize, 

confusion and unnecessary and inappropriate litigation. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0176-A2.001.003 

Author Name: Lazarus Jay 

Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM) 

Administrator's determination that new or revised Water Quality Standards (WQS) are necessary 

DPNM supports EPA's proposal under §131.22 to add a requirement that an Administrator's determination must be 

signed by the Administrator or his or her duly authorized delegate, and must include a statement that the document is a 

determination for purposes of section 303(c)(4)(B) of the Act. The regulated community hopes that this revision will 

allow the Administrator to be kept informed about proposed changes in WQS using the highest quality impartial 

scientific data collection and analysis. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0177-A2.001.002 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

(1) Administrator's Determinations That New or Revised Water Quality Standards (WQS) Are Necessary 

EPA is proposing to amend section 131.22 to clarify what is and what is not a formal "Administrator's Determination" 

that a State must adopt new or revised water quality standards. Such determination triggers a requirement that EPA 

promulgate standards for the State unless the State expeditiously proposes and adopts such standard. 

Misinterpretation that past statements by EPA have constituted an "Administrator's Determination" has led to 

unnecessary Court requirement for EPA promulgation. 

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NYSDEC strongly supports the proposed change, which will clarify what is, and what is not a formal "Administrator's 

Determination" and will facilitate more productive discussion about needed changes in the State's WQS without concern 

that such exploration of issues could result in an unnecessary federal promulgation for New York. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0178-A2.001.021 

Author Name: Burnell Barry 

Organization: Idaho Department of Environmental Quality 

VI. EPA Promulgation of Water Quality Standards (Administrator's Determination) 

This is a welcome change. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0180-A2.001.027 

Author Name: Hobson Chris 

Organization: Southern Company 

6. Administrator's Determination 

Southern Company agrees that a "determination" that new or revised water quality standards are necessary should be 

signed by the EPA Administrator and should specify that it is a CWA §303(c)(4)(B) determination. This particular 

determination comes with important consequences, not the least of which is EPA' s obligation to develop replacement 

federal standards. Thus, it is vital that the process for making the determination is clear and understandable to all 

stakeholders. 

Response 

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For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0181-A2.001.002 

Author Name: Sims Shaun 

Organization: Wyoming Association of Conservation Districts 

Page 54521- B. Administrator's Determinations That New or Revised WQS Are Necessary. 1. The EPA Proposal: The
 

EPA is concerned that the process whereby the Administrator determines the new or revised standards are necessary
 

is not always clearly understood or interpreted by the public stakeholders...The EPA believes that this revision would
 

establish a more transparent process for the Administrator to announce any determinations made under section
 

303(c)(4)(B) of the Act. 

COMMENT:
 

WACD commends EPA for recognizing the need for clarification when determining the new or revised standards.
 

Furthermore, WACD agrees that a direct and specific line of communication on recommendations to state and tribes on
 

areas where WQS improvements should be considered is important, without leading to litigation. If there is or has been
 

a misinterpretation by some that EPA's feedback to a state should result in an EPA promulgated standard(s), this
 

clarification is certainly necessary. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0182-A2.001.002 

Author Name: Hahn Martha 

Organization: The Colorado Wastewater Utility Council 

I. Administrator's Determinations 

The CWWUC supports EPA's proposed revisions as there have been questions in recent years in certain instances 

regarding whether or not a determination has been made by the EPA Administrator. 

Response 

For response to this comment, see the following response essay(s): 

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4.a 

Comment ID 0183-A1.001.003 

Author Name: Rich Eric 

Organization: Navajo Nation Environmental Protection Agency 

Below are the NNEPA Water Quality/NPDES Program comments: 

USEPA Administrators Determination That New or Revised WQS are Necessary 

This amends 40 CFR Part 131.22(b) to add a requirement that an Administrators determination must be signed. 

NNEPA Water Quality/NPDES Program Comment: 

This should not affect the Navajo Nation Surface Water Quality Standards. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0184-A2.001.008 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

Comment 3: Administrative signature 

The EPA is proposing to amend paragraph (b) of § 131.22 to add a requirement that an Administrator's determination 

must be signed by the Administrator or his or her duly authorized delegate, and must include a statement that the 

document is a determination for purposes of section 303(c)(4)(B) of the Act. 

WESTCAS supports this proposed change to the regulation. WESTCAS members have experienced circumstances as 

described by EPA in its examples whereby a memorandum or letter which was meant to provide feedback or clarity has 

been used by states to provide a rationale that EPA "required" certain actions which in fact were not a "regulation" per 

se. This has caused confusion and tension between stakeholders/permitees and State and EPA regulators. Time and 

funding has been tied up in courts while interpretations are sorted out when in fact a well-meaning EPA representative 

was writing a memorandum to "assist" rather than "make a determination". This proposed change should make these 

circumstances more clear. 

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Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0185-A1.001.002 

Author Name: Poltak Ronald 

Organization: New England Interstate Water Pollution Control Commission 

Administrator's Determinations 

EPA is proposing to amend section 131.22 to clarify what is and what is not a formal "Administrator's Determination" 

that a state must adopt new or revised water quality standards. Such determination triggers a requirement that EPA 

promulgate standards for the state unless the state expeditiously proposes and adopts such standard. Past 

misinterpretations of EPA statements as "Administrator's Determinations" have led to unnecessary requirements for 

EPA promulgation. 

The NEIWPCC states strongly support the proposed change, which will allow states and EPA to freely correspond 

about needed changes in the state's water quality standards (WQS) without fear that an EPA statement could result in 

an unnecessary federal promulgation. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0186-A1.001.002 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

• API supports the proposed clarification of an Administrator's final determination on a state WQS rule by the addition of 

language to 40 CFR 131.22(b). 

Response 

For response to this comment, see the following response essay(s): 

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4.a 

Comment ID 0186-A1.001.016 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

Administrator's Determinations (Section III.B., 78 Fed. Reg. 54521-54522) 

API supports the proposed clarification of an Administrator's final determination on a state WQS rule by the addition of 

language to 40 CFR 131.22(b). 

API agrees with EPA that there is a need for communication between the state and EPA during the Agency's review of 

proposed state WQS and implementation procedures and that EPA's written or verbal expression of desired or required 

changes in a state's proposal should not constitute a final determination unless it is specifically intended as such. The 

proposed revision to 40 CFR 131.22, which adds provisions to subparagraph b of Part 131.22, effectively addresses 

this issue by requiring an authorized signature and statement that the communication constitutes an Administrator's 

determination under Section 303(c)(4)(B) of the CWA. API supports this clarification. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0191-A2.001.008 

Author Name: Hirst Barbara 

Organization: New Jersey Department of Environmental Protection 

Administrator's Determination: NJDEP favors the proposed language on EPA promulgation of WQS at 40 CFR § 

131.22(b). This language will empower EPA regional offices to have more productive, open and clear conversations 

with states and will help advance the sharing and utilization of technical and scientific knowledge and work more 

efficiently towards achieving the goals of the Clean Water Act (Act). NJDEP also supports the comments submitted by 

ACWA on the Administrator's Determination. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

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Comment ID 0192-A1.001.009 

Author Name: Reeder Thomas 

Organization: North Carolina Department of Environment and Natural Resources 

V. EPA Promulgation of Water Quality Standards (Administrator's Determination) 

NC DWR supports the proposed language on EPA promulgation of WQS at 40 CFR § 131.22(b). This language will 

enable meaningful conversations without the fear that communications will be misconstrued as constituting an 

Administrator's determination that a new or revised water quality standard is necessary. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0193-A2.001.002 

Author Name: Biggs Barbara 

Organization: Metro Wastewater Reclamation District 

I. Administrator's Determinations 

The Metro District supports EPA's proposed revisions as there have been questions in recent years in certain instances 

regarding whether or not a determination has been made by the EPA Administrator. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0194-A1.001.003 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

1. Administrator's Determination (40 CFR § 131.22) 

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The Chamber supports the proposed revision because it makes clear that advice, guidance, and other informal 

comments by EPA do not constitute binding legal requirements. That does not, however, justify the proposed regulatory 

changes discussed below that further infringe on the authority, flexibility, and discretion afforded to the states. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

3.a 

Comment ID 0196-A1.001.026 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

Administrator's Determinations 

EPA proposes to add a requirement that an Administrator's determination be signed by the Administrator and include a 

statement that the determination is made pursuant to CWA Sec. 303(c)(4)(B). WVCA supports this proposed change, 

which WVCA believes could further facilitate transparent discussion between EPA and the states and reduce the risk of 

triggering unnecessary litigation. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0198-A1.001.004 

Author Name: Card Bethany 

Organization: Massachusetts Department of Environmental Protection 

Administrator's determination 

MassDEP views this change, which would clarify what constitutes an Administrator's determination under the CWA 

§303(c)(4)(B), and thus allow EPA to openly converse with states regarding WQS in an informal manner, as a positive 

change. MassDEP looks forward to a continued and open exchange with EPA on WQS and related issues. 

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Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0200-A1.001.005 

Author Name: Covar Zak 

Organization: Texas Commission on Environmental Quality 

1. Administrator's Determination That New or Revised WQS Are Necessary. 

The TCEQ supports proposed §131.22(b)(1) and (2) which clearly provides that in order to constitute an Administrator's 

determination regarding the necessity for new or revised WQS, it must 1) be signed by the Administrator or his/her 

authorized delegate and 2) contain a statement that the document is a determination for the purposes of Section 

303(c)(4)(B) of the Clean Water Act (CWA). This revision should result in a more transparent process and avoid 

unnecessary regulatory activity. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0201-A1.001.008 

Author Name: Godfrey Mike 

Organization: Alabama Power 

I. Administrator's Determinations that New or Revised Water Quality Standards are Necessary 

Section 303(c)(4)(B) of the CWA grants EPA the authority to make a formal determination that a new or revised WQS is 

necessary to fulfill the requirements of the Act. See 33 U.S.C. § 1313(c)(4)(B). A determination of this kind by the 

agency obligates it, in place of a state, to promulgate a new or revised standard. Specifically, a determination by EPA 

pursuant to this subpart obligates it to promptly publish proposed regulations setting out the new or revised WQS and 

promulgate such standards within 90 days of the publication of the proposed standard, unless prior to that time the state 

adopts a new or revised WQS deemed sufficient by EPA to comply with the CWA. See id. Under the Draft Rule, EPA is 

seeking to revise paragraph (b) of 40 C.F.R. § 131.22 to clarify that any formal determination issued by the agency 

pursuant to Section 303(c)(4)(B) must: (1) be signed by the EPA Administrator or his or her duly authorized delegate; 

and (2) include a statement that the document is a determination for purposes of Section 303(c)(4)(B). This action is 

proposed to avoid the recurring situation of some statement issued by EPA in a memorandum or other document being 

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interpreted by one or more stakeholders as a Section 303(c)(4)(B) determination when, in fact, the agency did not 

intend to make such a determination. 

Alabama Power supports EPA's proposed revision to paragraph (b) of 40 C.F.R. § 131.22. It is rational and should quell 

litigation erroneously seeking to compel the agency to promulgate new or revised WQS based on statements not 

intended to be determinations issued pursuant to Section 303(c)(4)(B). 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0202-A2.001.019 

Author Name: Frederick Kevin 

Organization: Wyoming Department of Environmental Quality/Water Quality Division 

Administrator's Determinations 

The WDEQ/WQD supports the EPA's proposed revision to clarify what constitutes an Administrator's determination. 

The WDEQ/WQD believes that this revision will give EPA more flexibility in responding to inquiries from states without 

fear that the recommendations may be interpreted as a determination under the Clean Water Act. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0203-A1.001.004 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

II. UWAG Agrees that EPA Should Be Explicit When it Makes a "Determination" that New or Revised Water Quality 

Standards Are Necessary 

UWAG agrees that a "determination" that new or revised water quality standards are necessary should be signed by the 

Administrator and should state that it is a § 303(c)(4)(B) determination. EPA should not be subject to lawsuits merely for 

offering advice to states. 

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The purpose of this change is to allow EPA to influence state decisions informally without fear of lawsuits over EPA's 

informal advice. For example, EPA says "Agency memoranda or documents articulating areas where states' WQS may 

need improvements" (78 Fed. Reg. 54,521 col. 3) should not be considered formal "determinations." EPA says it is 

essential that the EPA have the ability to provide "feedback" without fear of litigation (id.). 

At the same time, EPA says, as to antidegradation policy at least, that the Environmental Council of States (ECOS) has 

said that EPA should minimize the use of "interim guidance, interim rules, draft policy and reinterpretation policy" (78 

Fed. Reg. 54,526 col. 3). Nevertheless, EPA seeks to preserve its ability to advise the states informally without the 

distraction of lawsuits seeking to enforce or challenge EPA's informal advice. 

UWAG agrees with ECOS that EPA should not attempt to constrain state discretion about their water quality standards 

through interim guidance, draft policy, and reinterpretations of rules. But the desire to avoid this sort of ad hoc approach 

cannot be used to justify regulatory changes that infringe even more greatly on the flexibility and discretion that 

Congress intended states to possess. And allowing lawsuits to enforce such informal guidance simply compounds the 

problem, giving such guidance more authority than it deserves. 

Thus, UWAG supports the proposal in order to lessen the risk of wasteful lawsuits over whether an EPA memo or letter 

to a state is, in fact, a determination that new or revised water quality standards are necessary. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

3.a 

Comment ID 0205-A1.001.003 

Author Name: Burd Charlie 

Organization: Independent Oil and Gas Association of West Virginia Inc. 

A. Administrator's Determination 

IOGA-WV supports the proposed revision to 40 C.F.R. § 131.22(b), which would clarify that any formal determination by 

the USEPA Administrator that a new or revised water quality standard is necessary to meet the requirements of the 

CWA must be (1) signed by Administrator his or her duly authorized delegate, and (2) contain a statement that the 

document constitutes a determination under Section 303(c)(4)(B) of the Act, 33 U.S.C. § 1313(c)(4)(B). The proposed 

revision confirms that advice, guidance and other informal communications from USEPA do not constitute legal 

requirements that are binding on states and individual permittees. 

Response 

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For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0207-A1.001.003 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

Administrator Determination - proposed § 131.22: 

•We agree that a determination by the Administrator under section 303(c) that a federal water quality standard is 

necessary to meet the requirements of the Act must be an affirmative determination and cannot be inferred from 

statements in other agency documents. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0207-A1.001.017 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

II. Detailed Discussion 

A. Administrator determinations. 

EPA is proposing to adopt regulatory language that specifies that the Administrator makes a determination under § 

303(c)(4)(B) only when the Administrator says he or she is making such a determination. The undersigned support this 

proposal because the proposed regulatory language is consistent with the statute. By conditioning the obligation to 

promulgate federal standards "in any case where the Administrator determines that a revised or new standard is 

necessary," the statute makes it clear that the obligation to promulgate federal standards is triggered by a discretionary 

action by the Administrator. While we do not doubt that EPA would win any lawsuit alleging a policy or guidance 

constitutes an Administrator determination and creates a non-discretionary duty, EPA's proposed language would serve 

judicial economy and save EPA resources by precluding such litigation. 

Response 

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For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0208-A1.001.005 

Author Name: Foster Wade 

Organization: The Fertilizer Institute 

I. Necessity Determination Process under Section 303(c)(4)(B) 

EPA has proposed an amendment to its existing regulations that would clarify that a necessity determination by the 

Administrator under section 303(c)(4)(B) of the Clean Water Act, i.e., a determination that federally-promulgated water 

quality criteria are necessary for a state to remain in compliance with the CWA, must be signed by the Administrator or 

a duly authorized designee. The necessity determination must also include a statement that the document constitutes a 

determination under section 303(c)(4)(B) of the CWA. 

TFI agrees that a necessity determination must be clearly and expressly designated as such and signed by the 

Administrator. Additionally, TFI agrees that a necessity determination should not be found to arise as a result of 

recommendations or suggestions from EPA to a state or tribe. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0209-A1.001.002 

Author Name: Gilzow Floyd 

Organization: Missouri Public Utility Alliance 

SUMMARY OF COMMENTS 

1. We support the change to clarify that EPA staff communication with states over details in individual state water 

quality standards does not legally qualify as a federal determination of need to implement a new water quality standard. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

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Comment ID 0213-A1.001.007 

Author Name: Coyne Kevin 

Organization: West Virginia Department of Environmental Protection 

Administrators Decision - DEP supports the proposed language pertaining to the administrator's determination and EPA 

promulgation of water quality standards. As stated in the ACWA letter, the fear of communications being misconstrued 

as constituting an administrator's determination weighs heavily on the DEP, and does not foster improvements to water 

quality. The state has been involved in some contentious litigation in the recent past, and we fully believe the proposed 

language will help protect both the state and EPA from further litigation. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0217-A2.001.005 

Author Name: Hale Michelle 

Organization: Alaska Department of Environmental Conservation 

1. Administrator's Determination That New or Revised WQS Are Necessary 

ADEC supports this change. It should help clarify WQS revisions that are being promulgated as CWA regulations for 

states, as opposed to recommended criteria, policy memos or other documents not intended as enforceable 

regulations. For example, a lawsuit has been filed (Puget Soundkeeper Alliance, et al. v. EPA) asserting that EPA 

letters on human health criteria should be deemed a "determination" and should trigger promulgation of toxics criteria 

for the state of Washington. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0219-A1.001.004 

Author Name: McNelly Jeff 

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Organization: ARIPPA 

ARIPPA's Comments are as follows: 

1. Administrator's Determinations That New or Revised Water Quality Standards (WQS) Are Necessary 

EPA proposes to add a requirement that an Administrator's determination be signed by the Administrator and include a 

statement that the determination is made pursuant to CWA Sec. 303(c)(4)(B). While this proposed change may further 

facilitate transparent discussion between EPA and the states and reduce the risk of triggering unnecessary litigation, it 

does not mean that the Administrator will be making this determination, but most likely be his or her duly authorized 

delegate. 

The process of when and how the Administrator's determination is made and signed is critical. While the Agency 

recommends water quality critieria, the States are in the best position to determine what the standards for the State 

should be. There are instances in various Federal Laws where Congress has recognized that due to the diversity in 

terrain, climate, biologic, chemical, and other physical conditions related to environmental controls, the primary 

governmental responsibility for developing, authorizing, issuing, and enforcing regulations should rest with the States. 

As such, EPA's water quality criteria recommendations should be consistent with the approach that that the States 

maintain primary responsibility. The States are in a better position to determine how their diversity in terrain (geology 

and topography), climate, biologic, chemical, and other physical conditions that impact water quality and the standards 

in many cases need to reflect these differences. 

The concept could be beneficial provided that the process is more clearly understood. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

3.a 

Comment ID 0220-A2.001.004 

Author Name: Anderson Paul 

Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District 

Comments 

The Lower Fountain District respectfully offers the following specific comments. 

A. Administrator's Determinations per CWA 303(c)(4)(B) 

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The District concurs with this clarification under the proposed rule at Section 131.22(b). Not every memoranda or other 

document published by EPA concerning the Clean Water Act ("CWA") provisions, especially internal correspondence, 

should be considered a "determination" for purposes of new or amended EPA water quality standards ("WQS"). 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0221-A1.001.007 

Author Name: Coyne Kevin 

Organization: West Virginia Department of Environmental Protection 

Administrators Decision - DEP supports the proposed language pertaining to the administrator's determination and EPA 

promulgation of water quality standards. As stated in the ACWA letter, the fear of communications being misconstrued 

as constituting an administrator's determination weighs heavily on the DEP, and does not foster improvements to water 

quality. The state has been involved in some contentious litigation in the recent past, and we fully believe the proposed 

language will help protect both the state and EPA from further litigation. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0224-A1.001.002 

Author Name: Ternieden Claudio 

Organization: Water Environment Federation 

B. Administrator's Determinations that New or Revised WQS are Necessary. 

EPA Proposal: 

EPA is proposing to amend paragraph (b) of § 131.22 to add a requirement that an Administrator's determination must 

be signed by the Administrator or his or her duly authorized delegate, and must include a statement that the document 

is a determination for purposes of section 303(c)(4)(B) of the Act. 

WEF Comments: 

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Previously, EPA would informally communicate (often in writing) with states during WQS reviews on issues that were 

suggestions, recommendations or requirements. More recently, third parties have argued that written suggestions 

and/or recommendations have the weight of requirements. This revision seeks to make clear when correspondence 

between EPA and a state or tribe communicates a requirement with the full weight of the Agency behind it. 

This proposed revision will directly impact the way EPA communicates with states and tribes, particularly during the 

triennial review process. While it will slightly increase the administrative burden on the EPA, the regulated community 

will see benefit from this proposed change as there will be better communication between EPA and other WQS 

administrators, which will ultimately provide more clarity about WQS requirements, especially with respect to what our 

EPA informal suggestions and what are EPA expectations and requirements. WEF supports this proposed change. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0231-A2.001.033 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

Administrator's Determinations (s. 131.22) 

EPA proposes to amend this section to add a requirement that when an Administrator proposes or promulgates a 

regulation that sets forth a new or revised standard, this "Administrator's determination" must: "(1) be signed by the 

Administrator or his or her duly authorized delegate, and (2) contain a statement that the document constitutes an 

Administrator's determination under section 303(c)(4)(B) of the Act." This is a proposed revision that CMA agrees with, 

as it would provide clarity on which EPA actions are official determinations and not just recommendations or advice to 

States/Tribes. In fact, including this revision would help prevent needless litigation or confusion. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0234-A2.001.012 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

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III. ADMINISTRATOR DETERMINATIONS 

Under the Act (section 303(c)(4)(B)), EPA can "determine" that a new or revised water quality standard is necessary to 

meet the requirements of the Act. If such a determination is made, EPA has to adopt a new standard in place of the 

State. The FWQC supports clarifying that a "determination" that triggers that requirement must be signed by the 

Administrator or their duly authorized representative, and must state that it constitutes a "determination" under section 

303(c)(4)(B). 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0236-A2.001.003 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

B. 131.22 Administrator's Determinations That New or Revised WQS Are Necessary 

WDNR has no comments on this section. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0240-A2.001.004 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

1. Administrator's Determination That New or Revised WQS Are Necessary 

Section 131.22 EPA promulgation of water quality standards 

EPA is proposing to amend this section to add a requirement that when the Administrator proposes or promulgates a 

regulation that sets forth a new or revised standard, the 'Administrator's determination' must: "(1) be signed by the 

Administrator or his or her duly authorized delegate, and (2) contain a statement that the document constitutes an 

Administrator's determination under section 303(c)(4)(B) of the Act." 

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a. We cautiously support this proposed revision, as it would provide clarity as to which EPA actions are official 

determinations and which are merely recommendations or advice to the states and tribes. This revision should prevent, 

or at least minimize, confusion and unnecessary and inappropriate litigation. By the same token, our support for this 

change should not be read in any way as an acceptance of EPA's practice of rulemaking by guidance, a practice that 

was correctly rebuked by the court in National Mining Association v. Jackson, 880 F. Supp. 2d 119, 130 (D. D.C. 2012). 

Response 

For response to this comment, see the following response essay(s): 

4.a 

3.a 

Comment ID 0243-A2.001.013 

Author Name: Daniels Zane 

Organization: Ohio Coal Association 

Administrator's Determinations that New or Revised WQS are Necessary (Section 131.22) 

This change in the Proposed Rule establishes "a more transparent process for the Administrator to announce any 

determination made under section 303(c)(4)(B) of the [CWA]." 78 Fed. Reg. 54521. The Proposed Rule would do this 

by only considering something to be a formal determination when it is "(1) ... signed by the Administrator or his or her 

duly authorized delegate, and (2) contain[s] a statement that the document constitutes an Administrator's determination 

under section 303(c)(4)(B) of the Act." Id. 

Ohio Coal supports this proposed revision, as it would provide clarity as to which EPA actions are official determinations 

and which are merely recommendations or advice to the states and tribes. This revision should help to minimize 

confusion and potentially unnecessary and inappropriate litigation. That said, support for this change should not be read 

in any way as an acceptance of USEPA's historic practice of rulemaking by guidance; a practice that was correctly 

rebuked by the court in National Mining Association v. Jackson, 880 F. Supp. 2d 119, 130 (D. D.C. 2012). 

Thank you in advance for the opportunity to comment on the Proposed Rule. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

3.a 

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Comment ID 0245-A2.001.002 

Author Name: Krapas Douglas 

Organization: Inland Empire Paper Company 

1. Administrator's Determinations that New or Revised Water Quality Standards are Necessary 

Inland supports the amendment to § 131.22(b) to clarify that a determination that a state must adopt new or revised 

water quality standards, must be signed by the administrator and include a specific statement that the determination is 

for the purposes of section 303(c)(4)(B) of the Clean Water Act. We have seen in Washington the precise concern 

expressed by the EPA explanation of this rule. On October 11, 2013, Puget Soundkeeper Alliance and other 

environmental groups filed an action in the Western District of Washington contending that an assortment of letters, 

including one letter regarding an unrelated rulemaking process, from the EPA to the state Department of Ecology, 

constitute a determination under section 303. This is precisely the type of communication providing feedback, 

evaluation and support for the state water quality standard review that should be protected by the proposed rule. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0248-A2.001.003 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

1. EPA Determinations That New or Revised Water Quality Standards Are Necessary 

EPA proposes to amend 40 C.F.R. § 131.22 to require two specific elements in any determination by EPA under 33 

U.S.C. § 303(c)(4)(B) of the Clean Water Act that new or revised water quality standards are necessary: (i) the 

document must be signed by the Administrator or the Administrator's delegate, and (ii) the document must contain a 

statement that it constitutes a formal determination under Section 303(c)(4)(B). See 78 Fed. Reg. at 54521- 54522. 

Mosaic supports this proposal. Since a determination by EPA that new or revised water quality standards are necessary 

constitutes, in essence, a decision by EPA that a federal agency must take over a function generally reserved for 

states, it is important that this process be conducted with appropriate formality and deliberation. It is also important that 

the Agency's decision be unambiguous and definitive. At the same time, Mosaic believes that it remains important for 

EPA to have the flexibility to provide feedback and guidance to the states without the risk that such feedback and 

guidance will be misconstrued as a formal determination of necessity under 303(c)(4)(B). The recommended changes 

should operate to achieve both objectives. 

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4.c 

Chapter 2 - Comment Documents Administrator’s Determination 

Response 

For response to this comment, see the following response essay(s): 

4.a 

3.a 

Comment ID 0249-A2.001.004 

Author Name: Calamita F. Paul 

Organization: General Counsel on behalf of The Wet Weather Partnership et al. 

1. EPA Determinations that New or Revised Water Quality Standards are Necessary 

The Associations support EPA's proposal to amend the regulations to make it clearer when EPA has (or has not) made 

a determination under CWA section 303(c)(4). However, we have two specific comments on the manner in which the 

Agency proposes to amend the rule. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0252-A2.001.034 

Author Name: Fry Eric 

Organization: Peabody Energy 

Administrator's Determinations (s. 131.22) EPA proposes to amend this section to add a requirement that when an 

Administrator proposes or promulgates a regulation that sets forth a new or revised standard, this "Administrator's 

determination" must: "(1) be signed by the Administrator or his or her duly authorized delegate, and (2) contain a 

statement that the document constitutes an Administrator's determination under section 303(c)(4)(B) of the Act." This is 

a proposed revision that Peabody agrees with, as it would provide clarity on which EPA actions are official 

determinations and not just recommendations or advice to States/Tribes. In fact, including this revision would help 

prevent needless litigation or confusion. 

Response 

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For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0261-A2.001.018 

Author Name: Bartlett Drew 

Organization: Florida Department of Environmental Protection 

VIII. Proposed Revisions to § 131.22 (EPA promulgation of water quality standards). 

We strongly support the proposed revisions to clarify what constitutes an Administrator's determination that a new or 

revised standard is necessary to meet the requirements of the Clean Water Act. As noted by ACWA, the proposed 

revisions will foster better communication between the EPA Regions and the States. Clarification will also reduce the 

potential for litigation on whether EPA has made such a determination. 

The Department also recommends that EPA clearly articulate, if not in the rule, then in the preamble to the rule, that 

Administrator Determinations are final agency actions that can be challenged at the time of issuance. Cf., Florida 

Wildlife Federation, Inc. v. Lisa Jackson, 853 F.Supp.2d 1138, 1153 (U.S. Dist. Ct., Northern Dist. February 18, 2012). 

The January 2009 determination that numeric nutrient criteria were necessary in Florida had significant financial 

consequences on Florida, and other similar determinations could have serious financial impacts in other States. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

4.d 

Comment ID 0264-A2.001.024 

Author Name: Chard-McClary Shellie 

Organization: Association of Clean Water Administrators 

V. EPA Promulgation of Water Quality Standards (Administrator's Determination) 

ACWA supports the proposed language on EPA promulgation of WQS at 40 CFR § 131.22(b). This language will 

empower EPA regional offices to have more productive conversations with states and will help advance the sharing and 

utilization of technical and scientific knowledge. The current fear of communications being misconstrued as constituting 

an Administrator's determination that a new or revised water quality standard is necessary to meet the requirements of 

the Act leads to isolation of states and EPA, and does not foster improvements to water quality. We expect such a 

clarification to allow states to communicate more openly and work more efficiently towards the goals of the Act. 

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Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0269-A2.001.002 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

(1) Administrator's Determinations That New or Revised Water Quality Standards (WQS) Are Necessary 

EPA is proposing to amend section 131.22 to clarify what is and what is not a formal "Administrator's Determination" 

that a State must adopt new or revised water quality standards. Such determination triggers a requirement that EPA 

promulgate standards for the State unless the State expeditiously proposes and adopts such standard. 

Misinterpretation that past statements by EPA have constituted an "Administrator's Determination" has led to 

unnecessary Court requirement for EPA promulgation. 

NYSDEC strongly supports the proposed change, which will clarify what is, and what is not a formal "Administrator's 

Determination" and will facilitate more productive discussion about needed changes in the State's WQS without concern 

that such exploration of issues could result in an unnecessary federal promulgation for New York. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0270-A1.001.002 

Author Name: Todd Andrew 

Organization: Colorado Water Quality Control Commission 

I. Administrator's Determination 

The Commission supports many of EPA's proposed revisions, and appreciates the opportunity to provide input and 

comments on the draft rules. In particular, the Commission supports EPA's proposed revisions to clarify what 

constitutes an Administrator's determination. Colorado recognizes that there have been some circumstances where 

there is uncertainty regarding when the Administrator has decided that new or revised water quality standards are 

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necessary, and supports the revisions proposed. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0271-A1.001.002 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

1. Amendment of paragraph (b) of § 131. 22. The Pueblo of Sandia agrees that this revision may establish a more 

transparent process for the Administrator to announce any determination made under section 303(c)(4)(B) of the CWA. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0275-A2.001.003 

Author Name: Reeves Sarah 

Organization: Colorado Monitoring Framework

 Administrator's Determination 

The CMF supports EPA's proposed revisions as there have been instances in recent years where documents have 

been treated as if they were a determination approved by the EPA Administrator. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0276-A2.001.002 

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Author Name: Alves James 

Organization: Hopping Green & Sams on behalf of Florida Electric Power Coordinating Group, Inc. 

Necessity Determinations - CWA § 303(c)(4)(B) 

EPA has proposed an amendment to its existing regulations that would clarify that a determination by the Administrator 

under § 303(c)(4)(B) of the Clean Water Act (i.e., a determination that federally promulgated water quality criteria are 

necessary for a state to remain in compliance with the CWA) must be signed by the Administrator or a duly authorized 

designee. Under the proposal a necessity determination also must include a statement that the document constitutes a 

determination under § 303(c)(4)(B) of the CWA. 

The FCG agrees that such determinations should be signed by the Administrator or designee, and also should 

specifically state that CWA § 303(c)(4)(B) is being invoked. These amendments will help to avoid mischaracterizations 

of other types of EPA communications (for example, a letter giving advice to a state.) 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0278-A2.001.003 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

Administrator's Determination 

NACWA supports EPA's proposed amendments to 40 CFR §131.22(b) to clarify the process by which the EPA 

Administrator determines that new or revised water quality standards are necessary. This determination comes with 

important consequences, not the least of which is EPA's obligation to promptly propose replacement federal standards, 

so it is imperative that the process is clear and transparent. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0279-A2.001.007 

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Author Name: Coyne Kevin 

Organization: West Virginia Department of Environmental Protection 

Administrators Decision - DEP supports the proposed language pertaining to the administrator's determination and EPA 

promulgation of water quality standards. As stated in the ACWA letter, the fear of communications being misconstrued 

as constituting an administrator's determination weighs heavily on the DEP, and does not foster improvements to water 

quality. The state has been involved in some contentious litigation in the recent past, and we fully believe the proposed 

language will help protect both the state and EPA from further litigation. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0280-A2.001.020 

Author Name: Aspatore Amanda 

Organization: National Mining Association 

Administrator's Determinations 

EPA proposes to add a requirement that an Administrator's determination be signed by the Administrator and include a 

statement that the determination is made pursuant to CWA Sec. 303(c)(4)(B). NMA supports this proposed change, 

which NMA believes could further facilitate transparent discussion between EPA and the states and reduce the risk of 

triggering unnecessary litigation. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0282-A2.001.003 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

1. Administrator's determination that new and revised WQS are necessary (CFR 131.22) 

Ecology is in favor of this clarification because it should provide transparency for when EPA actually means to make a 

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CWA 303(c)(4)(B) determination. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0283-A1.001.003 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

B. Determinations that New or Revised Water Quality Standards ("WQS") are Necessary 

We generally support the new requirement proposed for 40 C.F.R. §131.22(b) that an EPA Administrator's 

determination that new or revised water quality standards are required must be signed by the Administrator or an 

approved delegate, and must include a statement that the action is being taken pursuant to Clean Water Act section 

303(c)(4)(B). (33 U.S.C. §1313(c)(4)(B).) EPA needs to have the ability to discuss the current status of water quality 

standards with a state or tribe without fear that such conversations indicate that new or revised water quality standards 

are legally required. Formalizing this determination with a specific designated signor and a statutory reference to 

confirm that such a determination has been made will clarify the process for all parties. 

Response 

For response to this comment, see the following response essay(s): 

4.a 

Comment ID 0284-A2.001.003 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

1. Administrator's determination that new and revised WQS are necessary (CFR 131.22) 

Ecology is in favor of this clarification because it should provide transparency for when EPA actually means to make a 

CWA 303(c)(4)(B) determination. 

Response 

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For response to this comment, see the following response essay(s): 

4.a 

4.B - ADMIN - GEN OPP 

Comment ID 0189-A1.001.005 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

Administrator's determination that a state needs a water quality standard 

The CWA provides that the EPA Administrator "shall promptly prepare and publish proposed regulations setting forth 

new or revised water quality standards for a state in any case where the Administrator determines that a revised or new 

standard is necessary to meet the requirements of the Clean Water Act" (33 U.S.C. §1313(c)(4)(B)). EPA proposes to 

very narrowly interpret what it means for the Administrator to determine that a new or revised standard is necessary, 

imposing constraints on what constitutes a "determination" for purposes of invoking EPA's mandatory obligation to 

promulgate adequate standards. This provision enables EPA to evade its critically-important obligation to intervene 

when the state fails to maintain standards adequate to protect water quality under the CWA. 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section B 

4.b: Section E 

4.e 

Comment ID 0195-A1.001.006 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

Administrator's determination that a state needs a water quality standard 

The CWA provides that the EPA Administrator "shall promptly prepare and publish proposed regulations setting forth 

new or revised water quality standards for a state in any case where the Administrator determines that a revised or new 

standard is necessary to meet the requirements of the Clean Water Act" (33 U.S.C. §1313(c)(4)(B)). EPA proposes to 

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very narrowly interpret what it means for the Administrator to determine that a new or revised standard is necessary, 

imposing constraints on what constitutes a "determination" for purposes of invoking EPA's mandatory obligation to 

promulgate adequate standards. The NTWC is concerned that this provision enables EPA to evade its criticallyimportant obligation to act when a state is failing to maintain standards adequate to protect water quality under the 

CWA. 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section B 

4.b: Section E 

4.e 

Comment ID 0197-A1.001.004 

Author Name: Garrison Naoh 

Organization: Natural Resources Defense Council 

COMMENTS ON PROPOSED RULE 

The Proposed Changes Regarding Administrator's Determinations That New or Revised WQS Are Necessary 

Improperly Narrow EPA's Obligations Under the Clean Water Act 

EPA proposes to amend 40 C.F.R. § 131.22(b) regarding EPA determinations in order to "provide direct, clear, and 

transparent feedback on state and tribal actions, and to maintain an open and constructive dialogue with states, tribes 

and stakeholders on important water quality issues." (78 Fed. Reg. at 54,521.) To this end, EPA proposes to require 

that in order for a document to constitute an Administrator's Determination, it must be signed and contain a statement 

that it is a determination for purposes of section 303(c)(4)(B) of the Clean Water Act. 

This proposal will neither assist the public nor ensure effective implementation of the Clean Water Act, but instead will 

reduce EPA's obligation to ensure water WQS are properly revised or adopted. It will further potentially allow states, 

including those that may already be delinquent in meeting their own Clean Water Act obligations to adopt standards, to 

further delay implementation of much needed water quality protections. The proposal is of significant concern given 

EPA's past actions to avoid or delay decisions regarding determinations of whether a state must adopt or revise WQS 

(see, e.g., Gulf Restoration Network v. Jackson No. 12-677, 2013 WL 5328547 (E.D. La. Sept. 20, 2013)); under the 

current proposal, if EPA were to refuse to perform its duty and exercise its authority under 33 U.S.C. § 1313(c)(4), there 

would be no avenue for the public to compel further action from EPA. This action would thwart the express intent of the 

Clean Water Act and as a result, we strongly urge EPA to reconsider this proposal. 

Response 

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Chapter 2 - Comment Documents Administrator’s Determination 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section A 

4.b: Section B 

4.b: Section C 

4.d 

Comment ID 0199-A1.001.002 

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 

Proposed Changes 

1) Administrator's Determinations That New Or Revised WQS Are Necessary 

EPA is proposing to amend 40 CFR § 131.22(b) to require the EPA Administrator to sign any determination that new or 

revised WQS are necessary and to include in any such determination a clear statement that the document is an official 

determination for purposes of CWA § 303(c)(4)(B). Although we support other proposed changes in the WQS 

rulemaking, we do not support this change. It is unclear how this particular revision will improve water quality or address 

deficiencies in EPA's WQS program, and it will unnecessarily impose additional obstacles for EPA regional staff who 

have determined or concluded that a state's standards need to be revised. 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section A 

4.b: Section B 

4.d 

Comment ID 0206-A1.001.005 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

EPA should not adopt this section of the Proposed Rule as written. 

Response 

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Chapter 2 - Comment Documents Administrator’s Determination 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section A 

Comment ID 0215-A1.001.005 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

EPA should not adopt this section of the Proposed Rule as written. 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section A 

Comment ID 0223-A1.001.002 

Author Name: Lindekugel Buck 

Organization: Grassroots Attorney on behalf of Southeast Alaska Conservation Council 

I. Administrator's Determinations that New or Revised WQS are Necessary 

In order to restore and maintain the integrity of water of the United States, Congress established a partnership 

arrangement whereby both federal and state governments share responsibilities. While states are primarily responsible 

for establishing and revising water quality standards, Congress gave EPA a substantive oversight role. 33 U.S.C. § 

1313(b), (c). When a state fails to meet its obligations, EPA is required to step in and promulgate standards for the 

state. 33 U.S.C. § 1313(c)(4). As proposed, the narrowing of EPA's determination requirements frustrates the purpose 

and intent of the Clean Water Act and limits EPA's critical oversight role. Instead of weakening its oversight role, we 

encourage EPA to take a more proactive approach to ensuring that states meet all the goals and requirements of the 

Clean Water Act. 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section B 

4.b: Section C 

08/04/2015 05:01 PM EDT 2-184 
Chapter 2 - Comment Documents Administrator’s Determination 

4.b: Section E 

3.a 

4.c 

4.e 

Comment ID 0228-A2.001.006 

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Administrators Determination 

Amigos Bravos is not supportive of this change. There is no reason to narrow the definition. 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section A 

4.b: Section B 

4.c 

Comment ID 0230-A1.001.003 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

Administrator's determination that a state needs a water quality standard (78 FR 545212) 

EPA maintains a critical oversight role in ensuring that states establish and conduct public review of their water quality 

standards. We appreciate that the proposed change in this proposal is intended to facilitate frank discussion between 

U.S. Environmental Protection Agency ("EPA"). [FN1] 

However, we are extremely concerned that EPA has sought in legal proceedings and elsewhere to avoid any review of 

its decisions whether or not to determine that a state needs a new or revised water quality standard. See, e.g., Gulf 

Restoration Network v. Jackson , Civil Action No. 12677 (E.D. La.) Order of Sept. 3, 2013 (rejecting EPA's argument 

that "determinations" under § 303(c)(4)(B) are not reviewable by courts). If EPA is unwilling to use its authority under 

Section 303(c)(4)(B) and there is no avenue for the public to compel EPA to perform its duties under that section, the 

Congressional scheme for EPA oversight of state water quality standards is negated. EPA communications regarding 

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Chapter 2 - Comment Documents Administrator’s Determination 

standards that are not backed by the reviewable authority of EPA to establish or modify standards are unlikely to lead to 

much of value unless states know that EPA stands ready to make an explicit "determination" that federal standards are 

necessary and that citizens can cause EPA to address state standards effectively. 

[FN1] We fear such communications will be hampered more severely by the recent ruling of the United States Circuit 

Court for the Eight Circuit in Iowa League of Cities v. EPA , 711 F.3d 844 (8th 2013) than by any lack of clarity in the 

rules concerning CWA Section 303(c)(4). 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section A 

4.b: Section B 

4.b: Section C 

3.a 

08/04/2015 05:01 PM EDT 2-186 
4.c 

Chapter 2 - Comment Documents Administrator’s Determination 

Comment ID 0230-A1.001.005 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

In short, we generally support rules changes that facilitate communications between EPA and states regarding water 

quality standards but we cannot support this current proposal, which appears only to reduce EPA's obligations to 

enforce Clean Water Act requirements. The proposed rule change will likely reduce EPA's leverage with the states and 

diminish the Agency's accountability to the public. 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section A 

4.b: Section B 

Comment ID 0232-A2.001.004 

Author Name: Grayum Mike 

Organization: Northwest Indian Fisheries Commission 

EPA needs to retain ability to make timely determinations at regional level, and therefore should not limit the scope of § 

303(c) with the proposed language governing "determinations." 

EPA proposed rules attempt to clarify § 303(c) of the CWA, by explicating precisely how EPA can make a 

"determination" under the CWA that new state WQS are necessary. The new proposed rules, which only authorize a 

determination when provided by the EPA national administrator, significantly limit the application § 303(c), and should 

not be adopted as currently written. 

Primarily, the proposed rule language undermines both EPAs trust responsibility and the aims of the CWA by 

countervailing EPA region 10 efforts to clarify that new human health criteria are necessary to protect Washington 

citizens. Under the regulatory scenario proposed in federal rules, EPA region 10's extensive writings and efforts to 

advance rule making and provide a back stop to a long history of state agency delay, would be supplanted by a new 

and more arduous need to have formal determinations made by the national administrator. Imposing this higher bar of 

making a determination significantly adds to the bureaucratic process necessary for EPA to move forward with 

rulemaking when they have already determined action is necessary. Moreover, the proposed language has the direct 

effect of limiting the application of 303(c), as well as limiting the scope of the citizen suit provisions of the CWA. This 

narrowing of the CWA is not reflective of fiduciary responsibility to zealously implement the CWA in pursuit of protecting 

tribal treaty reserved resources. 

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Chapter 2 - Comment Documents Administrator’s Determination 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section A 

4.b: Section B 

4.b: Section C 

4.d 

4.c 

Comment ID 0255-A2.001.004 

Author Name: Quaempts Eric 

Organization: Confederated Tribes of the Umatilla Indian Reservation 

"Determinations" 

Tribes and States in the Pacific Northwest have established, or are in the process of establishing, water quality 

standards using human health criteria that more accurately reflect tribal fish consumption. In Oregon, the process of 

establishing an accurate standard was long and arduous. In Washington and Idaho, the process continues, and has 

proven to be similarly difficult and time-consuming. 

The CTUIR DNR is concerned about inordinate stalling, digression and obstruction. Every day of delay in adopting and 

implementing more protective standards is another day of increased risk to tribal people and other Northwest citizens. 

The goal of the CTUIR has always been actual reductions in pollution, not merely modified regulations with no realworld improvements. The Environmental Protection Agency (EPA) must maintain the ability to step in and use its 

authority to assure that cleaner water and less pollution result in a reasonable period of time. The CTUIR DNR believes 

that the proposed rule unnecessarily restricts the Administrator's responsibility to make determinations on state water 

quality standards. State recalcitrance in reviewing and revising standards to adequately protect the public health is a 

serious problem. EPA's role, as defined by the current language, was crucial in convincing Oregon to revisit and reverse 

an earlier decision to adopt grossly-inadequate standard for toxics. In reviewing its standards, Washington has already 

substantially altered and delayed review because of brazen, well-documented pressure by the commercial and 

industrial interests that dominate state politics. [FN1] EPA should not change its rules to allow such tactics to become 

even more pronounced, or less subject to the agency's capacity to intervene. If there is concern about "inadvertently" 

triggering EPA's mandatory obligation to propose replacement standards, EPA could clearly delineate when an action 

constitutes a determination and when it does not. The agency should not narrowly construe the meaning of 

"determination" or the circumstances that call for a modified standard, and should not institute rigid, highly formalized 

constraints that would ultimately undermine EPA's ability to implement the CWA. 

[FN 1] http://www.invw.org/article/business-interests-trump-1344, http://www.heraldnet.com/article/20130405/ 

NEWS01/704059935, http://www.invw.org/article/how-boeing-allies-torpedo-1353, http://www.invw.org/project/fish08/04/2015 05:01 PM EDT 2-188 
Chapter 2 - Comment Documents Administrator’s Determination 

consumption? page=1, http://www.thenewstribune.com/2013/04/24/2571614/water-pollution-gregoire-boeing.html. 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section A 

4.b: Section B 

4.b: Section C 

3.a 

4.c 

4.d 

Comment ID 0259-A2.001.008 

Author Name: Naylor Char 

Organization: Puyallup Tribe of Indians 

We disagree with amending §131.22(b) to add a requirement that an Administrator's Determination must be signed by 

the EPA National Administrator. Rather, we agree with the Northwest Indian Fisheries Commission's letter on this 

matter as attached for reference that states: 

"The new proposed rules, which only authorize a determination when provided by the national administrator, 

significantly limit the application (of) §303(C), and should not be adopted as currently written. ...Primarily, the proposed 

rule language undermines both EPAs trust responsibility and the aims of the CWA by countervailing EPA Region 10 

efforts to clarify those new human health criteria are necessary to protect Washington citizens." 

We agree with the Commission's recommendation for EPA to retain the ability to make timely determinations at the 

regional level, and therefore should not limit the scope of §303(C) with the proposed language governing 

"determinations". 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section A 

4.b: Section B 

4.b: Section C 

4.c 

4.d 

08/04/2015 05:01 PM EDT 2-189 
Chapter 2 - Comment Documents Administrator’s Determination 

Comment ID 0268-A2.001.004 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

B. Administrator's Determinations that New or Revised Water Quality Standards Are Necessary 

It is clear that the primary purpose of the proposed amendments on the topic of Administrator's Determinations is to 

reduce litigation and the potential for successful litigation by citizens attempting to force EPA to improve state's 

standards. This is not about creating a "more transparent process" as EPA claims but, rather, avoiding the need to take 

any action at all. In other words, it is about creating a more insulated EPA, an EPA that can hide from the citizens it is 

intended to protect. We agree that EPA needs to be able to have very clear communications with the states, to be able 

to tell them precisely what needs to get done and in what time frame. But it is also true that EPA spends years begging 

states to act and undercutting its own begging by very rarely being willing to back up that rhetoric with its own actions, 

generally not unless forced by court order. While open and direct communications constitute their own virtue that should 

not be precluded by fear of citizens groups' litigation, there is also great virtue in the fact that on rare occasion EPA can 

be held to taking regulatory actions, reflecting the urgency and clarity it has articulated to states. The current status quo 

already provides a very high bar for citizens seeking to prove that EPA has made an Administrator's Determination. 

EPA's proposal to effectively close to the door to any avenue to make that case to a court may feel as if it is in the best 

interests of the agency but is not in the best interest of a government that is responsive to its citizens or the best 

interests of human health and the environment. We urge EPA to delete this section of its proposal. 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section A 

4.b: Section B 

4.b: Section C 

4.d 

Comment ID 0272-A2.001.005 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

COMMENTS SPECIFIC TO PROPOSED CHANGES 

I. ADMINISTRATOR'S DETERMINATIONS 

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A. The Proposed Rule Constraining Administrator's Determinations Is Unnecessary And Contrary To The Intent And 

Purposes Of The Clean Water Act. 

The proposed rule regarding EPA determinations on state water quality standards is truly a "solution in search of a 

problem" that allows EPA to evade its critically-important obligations to act when a state is failing to maintain standards 

adequate to protect water quality under the Act. EPA's stated purpose for narrowing its obligation is to allow it to freely 

give "feedback" to states regarding their water quality standards without "inadvertently" triggering EPA's mandatory 

obligation to propose a replacement standard. 78 Fed. Reg. at 54,521. EPA's fears are unfounded; the change is 

unnecessary. If EPA moves forward, its proposed rule requires significantly more structure to ensure that states and 

EPA are fulfilling the requirements of the Clean Water Act and their obligations to citizens. 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section A 

4.b: Section B 

4.b: Section C 

4.d 

Comment ID 0272-A2.001.007 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

2. The Proposed Rule is Unnecessary and Will Result in Actions Contrary to the Clean Water Act. 

The Clean Water Act provides that the Administrator shall promptly prepare and publish proposed regulations setting 

forth new or revised water quality standards for a state in any case where the Administrator determines that a revised or 

new standard is necessary to meet the requirements of the Clean Water Act. 33 U.S.C. §1313(c)(4)(B). EPA proposes 

to very narrowly construe what it means for the Administrator to determine that a new or revised standard is necessary, 

imposing highly formalized constraints on what constitutes a "determination" for purposes of invoking EPA's mandatory 

obligation to promulgate adequate standards. EPA's rationale-that it worries about the ability to give feedback without 

tripping the mandatory obligation trigger-is thin and unsupported by actual experience. 

A thorough search of the case law demonstrates that EPA has rarely been "forced" into a situation where a court finds 

EPA made a determination when it did not intend to do so. [FN2] In Florida, after years of the state failing its Clean 

Water Act obligations, a court addressed whether EPA had made a determination. EPA mooted the case (years after it 

was brought) by clearly and unequivocally making the determination. Florida Wildlife Fed'n v. Jackson, 853 F. Supp. 

1138 (N.D. Fla. 2012) (where EPA does not dispute that once it determines that Florida's nutrient standard are 

inadequate, it has a duty to promulgate new ones under 303(d)(4)(B) even when EPA's determination was a change in 

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Chapter 2 - Comment Documents Administrator’s Determination 

position. ) [FN3] In Puerto Rico, in a series of orders and one published opinion, EPA was found to have made a 

determination, although it was after a state had submitted standards for review (a situation where EPA is under a 

statutory deadline to act). CORALations v. EPA, 477 F.Supp.2d 413, 418 (D.P.R. 2007). The evidence was plain and 

EPA was not put in a position of inadvertent action. [FN4] 

Now, in Washington, a case is pending but the outcome is yet unclear. Puget Soundkeeper Alliance et al. v. EPA, No. 

2:13-cv-01839-JCC (W.D. Wa). Again here, EPA's proffered reason for the rule change rings hollow. EPA has been 

giving "feedback" to the State of Washington regarding the inadequacy of its fish consumption rate calculations and 

attendant human health criteria for almost a decade. (Moreover, EPA issued guidance directed to the states in 2000 

that made plain the fact that Washington's standard was inadequate and would need revision.) Most recently, the 

Region 10 Administrator wrote to Washington following two letters in the previous 18 months from head of the Region 

10 standards unit telling the state it was not protecting consumers of fish in the state. EPA has not been backed into a 

corner by inadvertent, well-meaning communications with a state that EPA simply meant to be "helpful feedback." 

Rather, EPA has, as it should do under the Clean Water Act, communicated to a state that its standards are 

inadequate, triggering EPA's obligation to act. Because the state is plainly a barrier to proper implementation of the 

Clean Water Act, it is now EPA's obligation to act. After 10 years and multiple letters to the state, that does not seem 

like an onerous burden or imposition on EPA's discretion, but rather the correct result under the Act. 

And in fact, EPA has a history of refusing to make determinations even when it should in order to ensure the Clean 

Water Act is adequately implemented. The new rule will enable EPA to further insulate itself when states and EPA fail in 

their obligations to ensure that water quality standard protect designated uses. In Gulf Restoration Network v. EPA, 

2013 WL 5328547 (E.D. La. 2013), EPA was presented with a rulemaking petition detailing the significant failings of 

Mississippi Basin states in controlling rampant nutrient pollution that is killing the Gulf of Mexico (as well as the 

Mississippi itself.) The petitioners asked EPA to make the determination that is the subject of § 303(c)(4), giving EPA 

large quantities of evidence that would enable it to do so. EPA had been giving "feedback" to the states for years; in 

1998, EPA published its National Strategy for the Development of Regional Nutrient Criteria, 63 Fed. Reg. 36,648 (June 

1998), followed by guidance and criteria for nutrients with the plain expectation that criteria would be adopted by the 

states within a few years. Multiple extensions and "feedback sessions" later, only one state, Hawai'i, has a full set of 

criteria. The next "best" states are Wisconsin and New Jersey with phosphorus criteria only for both water types. The 

next four "best" performing states don't have criteria for rivers and streams, but have phosphorus criteria for lakes. The 

remaining states fall even further back, with 26 states having no nutrient criteria at all after 15 years of "feedback". 

http://cfpub.epa.gov/wqsits/nnc-development/. [FN5] It is precisely this kind of situation where EPA needs to exercise 

its oversight role under the Clean Water Act. Yet, even in this plain situation, EPA refused, a refusal that a federal court 

found contrary to the law. Gulf Restoration Network, at *6. And, EPA is so loathe to actually carry out its obligation to 

make these determinations, it has now, incredibly, appealed the Louisiana court's decision. 

It is plain that EPA's proposed narrowing of the determination requirements is geared to removing this provision and 

EPA's obligations thereunder, from the Clean Water Act entirely. The proposal is completely contrary to the purpose 

and intent of the Clean Water Act and Congress' intent that EPA play an oversight role to ensure the Act is 

implemented. The proposed change is wholly unnecessary and the Water Protection Groups urge EPA to reconsider 

and reject the proposed change. 

[FN2] EPA's website reveals only three instances in which EPA has actually made a determination. In 2008/2009 it 

made determinations relative to recreational uses in Chicago and St. Louis. It also made a determination in 2009 

08/04/2015 05:01 PM EDT 2-192 
related to Florida nutrients (after it had been sued.) 

[FN3] It is interesting to note that Florida still lacks adequate nutrient standards with many waters impaired by 

damaging, sometimes dangerous, algal blooms. See Florida Wildlife Federation, Inc. v. U.S. EPA, Case No. 4:08-cv00324 (N.D. Fla.) at ECF Nos. 438, 439, 440, and 441. 

[FN4] It is further interesting to note that the CORALations situation was not even an instance of application of 

§303(c)(4)(B). Rather, it concerned an actual submission by Puerto Rico whereby EPA is required to approve or 

disapprove in a set period of time. Even there, EPA resisted making an actual decision, demonstrating EPA's inclination 

to avoid its oversight obligations. 

[FN5] See also the example in North Carolina where EPA has been giving critical feedback-most recently in a letter to 

the state dated May 23, 2013--but taking no action, for years. As a result, nutrient criteria in a state that has been 

severely hit with the negative impacts of nutrient pollution is nonexistent with no meaningful protections in place and the 

problem continues to worsen. 

Response 

For response to this comment, see the following response essay(s): 

4.b 

4.b: Section A 

4.b: Section B 

4.b: Section C 

4.d 

4.e 

4.c 

Chapter 2 - Comment Documents Administrator’s Determination 

4.C - ADMIN - SPECIFIC COMMENTS 

Comment ID 0129-A2.001.006 

Author Name: Steidel Robert 

Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc. 

A. First, we question EPA's choice of terminology in the Preamble stating that these determinations are made "at the 

Administrator's discretion, after evaluating all relevant factors." 78 Fed. Reg. 54518, 21 (emphasis added). Although the 

requirement for these EPA determinations is defined broadly as whether a state's standard is consistent or adequate to 

meet the requirements of the CWA, 33 USC § 1313(c), this means that standards must address the appropriate water 

quality parameters and be adequate to protect designated uses. EPA itself makes this point later in the Preamble in 

referring to state actions "consistent with the [CWA]" and the state obligation "to ensure that ... criteria reflect current 

science and protect applicable designated uses." 78 Fed. Reg. at 54525. 

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Clearly, for example, it is not required that all of the states adopt numeric water quality standards for all identifiable 

pollutants, or even for all pollutants for which EPA has published water quality criteria. A state often properly determines 

that designated uses of state waters are protected through its general standard and its various water quality permitting, 

TMDL and other programs; and in such cases the state determines to not adopt numeric criteria for specific pollutants 

that are otherwise properly controlled. In that event EPA's role is limited to determining whether the state's 

determination is properly supported. 

We understand that EPA has some discretion in making various technical and other determinations in the process that 

leads up to determinations on the adequacy of state water quality standards, considering however the unique 

responsibilities that the CWA reserves to the states in adopting standards, 33 USC § 1313(c). Although we understand 

EPA's intent, we have a concern that the Preamble comment leaves an incorrect impression that decisions on state 

water quality standards are discretionary. This is incorrect, and we recommend that EPA acknowledge in its final 

rulemaking that the Preamble statement may be misinterpreted, and that its relevant actions are pursuant to the specific 

standards of CWA section 303. 

B. Second, we question why the proposed rulemaking language would be limited to EPA determinations under CWA 

section 303(c)(4)(B), rather than referring more broadly to 303(c)(4). 303(c)(4)(A) refers to state submissions of revised 

or new water quality standards and whether they are consistent with CWA requirements; and 303(c)(4)(B) refers to the 

Administrator's determination that a revised or new state standard is necessary to meet CWA requirements. These are 

slightly different determinations (although a determination under B may also be a determination under A), but we 

believe it is equally important that any determination by the Agency under either provision be clear and obvious. For this 

reason, we recommend that the revision to section 131.22(b) refer to "an Administrator's determinations under section 

303(c)(4) of the Act." 40 CFR § 131.22(b) (proposed) (emphasis added). 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section A 

4.c: Section B 

4.c: Section C 

4.c: Section E 

3.a 

Comment ID 0150-A1.001.004 

Author Name: Heisig-Mitchell Jamie 

Organization: Hampton Roads Sanitation District 

EPA Determinations that New or Revised Water Quality Standards are Necessary 

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HRSD supports EPA's proposal to amend the regulations to clarify when EPA has (or has not) made a determination 

under CWA section 303(c)(4). However, an additional clarification is necessary to further minimize confusion. 

EPA indicates in the Preamble that determinations are made "at the Administrator's discretion" (78 Fed. Reg. 54521). 

HRSD understands that EPA has some discretion in making various technical and other determinations in the process 

that leads up to decisions regarding the adequacy of state water quality standards. However, the determination is not 

entirely discretionary; EPA evaluations and decisions regarding the adequacy of state standards are pursuant to the 

specific standards of CWA section 303. The Preamble comment may leave an incorrect impression that decisions on 

state water quality standards are discretionary. This is incorrect, and HRSD recommends that EPA acknowledge in its 

final rulemaking that the Preamble statement may be misinterpreted, and that its relevant actions are, in fact, pursuant 

to the specific standards of CWA section 303. 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section A 

4.c: Section B 

Comment ID 0161-A2.001.012 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

10. §131.22 EPA promulgation of water quality standards and §131.22(b) both reference "promulgation" of water quality 

standards, the latter stating "The Administrator may also propose and promulgate a regulation, applicable to one or 

more States, setting forth a new or revised standard upon determining such a standard is necessary to meet the 

requirements of the Act." 

• It is important that the EPA understand the importance of maintaining the statutorily required timelines for review and 

promulgation. Pursuant to Section 303 of the Clean Water Act, EPA has 60 days to approve or 90 days to disapprove, 

and must always promulgate where a state does not or cannot promptly respond to a disapproval. This is a key 

component of the Act, like Designated Uses, the Triennial Review, variances, etc., A failure to comply with the 

promulgation requirement has very real impacts on states and other parties covered by the Act, such as waste water 

facilities and delays necessary water quality improvements. Furthermore, the failure to comply with the promulgation 

requirement allows for a different standard of review by EPA of state-submitted standards because there is no 

consequence to disapproval. 

Thank you for letting us express our questions/concerns. We look forward to your response. 

Response 

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Chapter 2 - Comment Documents Administrator’s Determination 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section C 

4.c: Section D 

Comment ID 0171-A2.001.003 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

However, the proposed amendments, like the existing regulations, do not provide objective criteria for making such a 

determination. Indeed, in the preamble to the proposed rule as published September 4, 2013, EPA states, "Such a 

determination is made at the Administrator's discretion after evaluation all relevant factors." 78 Fed. Reg. 54521. What 

those relevant factors may be is conspicuously absent from the proposed rule. 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section B 

4.d 

Comment ID 0171-A2.001.005 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

While choosing to take action under CWA § 303(c)(4)(B) may be at the discretion of the Administrator, the decision, 

once made, must be based on some need-some real necessity-and not to address some political or legal exigency. To 

that end, CF asserts that any regulation addressing necessity determinations must include some indication of the facts 

and circumstances that would trigger "a course of last resort" of federal intervention into State primacy under the Clean 

Water Act. 

The proposed amendments to EPA's water quality standards regulations should provide objective criteria as to when it 

is appropriate for the Administrator, or her designee, to make a determination under CWA § 303(c)(4)(B). Those criteria 

should include whether or not the affected State has been given a meaningful opportunity to develop its own criteria and 

refused to do so. The amended regulations should clearly articulate that any such determination must be based upon 

objective water quality data and supporting information. 

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Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section B 

4.c: Section E 

3.a 

Comment ID 0173-A1.001.003 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

However, the proposed amendments, like the existing regulations, do not provide objective criteria for making such a 

determination. Indeed, in the preamble to the proposed rule as published September 4, 2013, EPA states, "Such a 

determination is made at the Administrator's discretion after evaluation all relevant factors." 78 Fed. Reg. 54521. What 

those relevant factors may be is conspicuously absent from the proposed rule. 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section B 

4.d 

Comment ID 0173-A1.001.005 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

While choosing to take action under CWA § 303(c)(4)(B) may be at the discretion of the Administrator, the decision, 

once made, must be based on some need-some real necessity-and not to address some political or legal exigency. To 

that end, CF asserts that any regulation addressing necessity determinations must include some indication of the facts 

and circumstances that would trigger "a course of last resort" of federal intervention into State primacy under the Clean 

Water Act. 

The proposed amendments to EPA's water quality standards regulations should provide objective criteria as to when it 

is appropriate for the Administrator, or her designee, to make a determination under CWA § 303(c)(4)(B). Those criteria 

should include whether or not the affected State has been given a meaningful opportunity to develop its own criteria and 

refused to do so. The amended regulations should clearly articulate that any such determination must be based upon 

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objective water quality data and supporting information. 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section B 

4.c: Section E 

3.a 

Comment ID 0188-A2.001.012 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

10. §131.22 EPA promulgation of water quality standards and §131.22(b) both reference "promulgation" of water quality 

standards, the latter stating "The Administrator may also propose and promulgate a regulation, applicable to one or 

more States, setting forth a new or revised standard upon determining such a standard is necessary to meet the 

requirements of the Act." 

• It is important that the EPA understand the importance of maintaining the statutorily required timelines for review and 

promulgation. Pursuant to Section 303 of the Clean Water Act, EPA has 60 days to approve or 90 days to disapprove, 

and must always promulgate where a state does not or cannot promptly respond to a disapproval. This is a key 

component of the Act, like Designated Uses, the Triennial Review, variances, etc., A failure to comply with the 

promulgation requirement has very real impacts on states and other parties covered by the Act, such as waste water 

facilities and delays necessary water quality improvements. Furthermore, the failure to comply with the promulgation 

requirement allows for a different standard of review by EPA of state-submitted standards because there is no 

consequence to disapproval. 

Thank you for letting us express our questions/concerns. We look forward to your response. 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section C 

4.c: Section D 

Comment ID 0197-A1.001.005 

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Author Name: Garrison Naoh 

Organization: Natural Resources Defense Council 

In the event that EPA is determined to press forward with revisions to 40 C.F.R. § 131.22(b), we urge the agency to 

include language that: 1) establishes a requirement that EPA respond to any petition from the public or other 

stakeholder requesting a determination, including a clear timeframe for agency response; and 2) sets clear, enforceable 

timelines for any state to revise or adopt a WQS where EPA has provided feedback to a state regarding inadequate or 

missing WQS. 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section A 

4.c: Section D 

Comment ID 0210-A1.001.005 

Author Name: Connelly Kent 

Organization: Coalition of Local Governments 

1. Administrator's Determination That New or Revised Water Quality Standards (WQS) Are Necessary 

As stated above, the Coalition supports clarity in the regulations but the language used by the EPA in the Preamble 

regarding the Administrators determinations is troublesome. The EPA states that the Administrator's determinations are 

made "at the Administrator's discretion, after evaluating all relevant factors." 78 Fed. Reg. at 54518, 54521. The 

obvious problem is that although the Administrator is granted some discretion in making various determinations, the 

Clean Water Act (CWA), 33 U.S.C. §1313(c), controls the relevant determinations. A state's WQS must protect 

designated uses according to the CWA and the level of discretion inherent in this evaluation is limited to whether the 

state meets that obligation. The Administrator is not, however, permitted to go beyond the letter of the CWA by creating 

additional obligations if the state complies with the CWA's mandates. The Coalition urges EPA to remove the above 

quoted language from the Preamble and state in its final rulemaking that EPA's actions are directly tied to Section 303 

of the CWA. 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section A 

4.c: Section B 

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4.d 

Comment ID 0223-A1.001.003 

Author Name: Lindekugel Buck 

Organization: Grassroots Attorney on behalf of Southeast Alaska Conservation Council 

EPA's rationale rings hollow that the proposed amendment is needed to preserve its ability to give states feedback 

without triggering its duty to propose and promulgate WQS. EPA's approach will only exacerbate the recalcitrance of 

states like Alaska to fulfill their duties to adopt, implement and enforce protective standards, as well as undermine the 

purpose and intent of the Clean Water Act. What is needed and missing from section 131.22 is a well-defined structure 

that includes enforceable timelines and sets clear expectations for when determinations under § 1313 (c)(4) should and 

will occur. The following examples from Alaska demonstrate why EPA needs to take an even more resolute approach to 

prevent states from dragging their heels and frustrating implementation of the Clean Water Act. 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section A 

4.c: Section B 

4.c: Section D 

4.c: Section E 

4.b 

4.d 

Comment ID 0230-A1.001.004 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

In comments filed by the Environmental Law and Policy Center on behalf of itself and 18 other organizations, on the 

ANPRM (Sept. 3, 2010), we asked that if EPA adopted a rule such as that proposed here, it also establish a clear path 

through which citizens can obtain, within a reasonable amount of time, a determination by the Administrator on whether 

a change in state water quality standards is necessary. No such provision is now proposed by EPA and we cannot 

support EPA's proposed changes. 

Response 

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Chapter 2 - Comment Documents Administrator’s Determination 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section D 

Comment ID 0230-A1.001.006 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

If EPA proceeds with this rule change, we recommend that the Agency include new language that establishes a clear 

process for citizens to petition and receive a formal EPA determination within a reasonable amount of time. 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section D 

Comment ID 0249-A2.001.005 

Author Name: Calamita F. Paul 

Organization: General Counsel on behalf of The Wet Weather Partnership et al. 

A. First, we question EPA's choice of terminology in the Preamble stating that these determinations are made "at the 

Administrator's discretion, after evaluating all relevant factors." 78 Fed. Reg. 54518, 21 (emphasis added). Although the 

requirement for these EPA determinations is defined broadly as whether a state's standard is consistent or adequate to 

meet the requirements of the CWA, 33 USC § 1313(c), this means that standards must address the appropriate water 

quality parameters and be adequate to protect designated uses. EPA itself makes this point later in the Preamble in 

referring to state actions "consistent with the [CWA]" and the state obligation "to ensure that . . . criteria reflect current 

science and protect applicable designated uses." 78 Fed. Reg. at 54525. 

Clearly, for example, it is not required that all of the states adopt numeric water quality standards for all identifiable 

pollutants, or even for all pollutants for which EPA has published water quality criteria. A state often properly determines 

that designated uses of state waters are protected through its general standard and its various water quality permitting, 

TMDL and other programs; and in such cases the state determines to not adopt numeric criteria for specific pollutants 

that are otherwise properly controlled. In that event EPA's role is limited to determining whether the state's 

determination is properly supported. 

We understand that EPA has some discretion in making various technical and other determinations in the process that 

leads up to determinations on the adequacy of state water quality standards, considering however the unique 

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responsibilities that the CWA reserves to the states in adopting standards, 33 USC § 1313(c). Although we understand 

EPA's intent, we have a concern that the Preamble comment leaves an incorrect impression that decisions on state 

water quality standards are discretionary. This is incorrect, and we recommend that EPA clarify in its final rulemaking 

that its relevant actions are pursuant to the specific standards of CWA section 303. 

B. Second, we question why the proposed rulemaking language would be limited to EPA determinations under CWA 

section 303(c)(4)(B), rather than referring more broadly to 303(c)(4). Section 303(c)(4)(A) refers to state submissions of 

revised or new water quality standards and whether they are consistent with CWA requirements; and 303(c)(4)(B) 

refers to the Administrator's determination that a revised or new state standard is necessary to meet CWA 

requirements. These are slightly different determinations (although a determination under B may also be a 

determination under A), but we believe it is equally important that any determination by the Agency under either 

provision be clear and obvious. For this reason, we recommend that the revision to section 131.22(b) refer to "an 

Administrator's determinations under section 303(c)(4) of the Act." 40 CFR § 131.22(b) (proposed) (emphasis added). 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section A 

4.c: Section B 

4.c: Section C 

3.a 

Comment ID 0256-A2.001.005 

Author Name: Shepherd Hal 

Organization: The Center for Water Advocacy 

II. Administrator's Determinations that New or Revised WQS are Necessary 

In order to restore and maintain the integrity of water of the United States, Congress established a partnership 

arrangement whereby both federal and state governments share responsibilities. While states are primarily responsible 

for establishing and revising water quality standards, Congress gave EPA a substantive oversight role. 33 U.S.C. § 

1313(b), (c). When a state fails to meet its obligations, EPA is required to step in and promulgate standards for the 

state. 33 U.S.C. § 1313(c)(4). As proposed, the narrowing of EPA's determination requirements frustrates the purpose 

and intent of the Clean Water Act and limits EPA's critical oversight role. Instead of weakening its oversight role, we 

encourage EPA to take a more proactive approach to ensuring that states meet all the goals and requirements of the 

Clean Water Act. 

EPA's rationale rings hollow that the proposed amendment is needed to preserve its ability to give states feedback 

without triggering its duty to propose and promulgate WQS. EPA's approach will only exacerbate the recalcitrance of 

states like Alaska to fulfill their duties to adopt, implement and enforce protective standards, as well as undermine the 

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purpose and intent of the Clean Water Act. What is needed and missing from section 131.22 is a well-defined structure 

that includes enforceable timelines and sets clear expectations for when determinations under § 1313 (c)(4) should and 

will occur. The following examples from Alaska demonstrate why EPA needs to take an even more resolute approach to 

prevent states from dragging their heels and frustrating implementation of the Clean Water Act. 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section A 

4.c: Section D 

4.c: Section E 

3.a 

4.b 

Comment ID 0272-A2.001.008 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

B. A More Complete Rule Regarding Determinations Could Comply With the Clean Water Act and Protect Citizens. 

In the event that EPA insists on the proposed narrowing of the definition of determination under § 303(c)(4), EPA must 

take an additional step to create a structure for when those determinations should and will occur. Adding this structure 

is necessary to conform to the intent and purpose of the Clean Water Act that EPA perform a substantive oversight role 

with states water quality standards and to preserve the ability of citizens to compel compliance where a state and EPA 

are struggling to move forward with protective standards. That structure should include enforceable timelines and clear 

expectations. 

EPA should include in this rulemaking, a process whereby once EPA gives a state feedback regarding inadequate or 

missing water quality standards, EPA is also clear that the state now faces a deadline. It could be a year in order to give 

the state adequate time to develop a standard and allow public process. However, at the end of that year, if the state 

has failed to conform its standards to what is necessary to fulfill the purposes of the Act, EPA must make a 

determination (by the Administrator as will be defined by EPA) and if the state fails to adopt a more protective standard, 

EPA shall promptly promulgate a standard for the state. Promptly should further be defined for the benefit of the state 

and the public as no longer than 90 days (a length of time utilized elsewhere in § 303) with finalization 90 days after 

promulgation of the proposed standard. During this period of time, a state could still regain control by promulgating an 

adequate standard. Finally, to address the problem presented by the Gulf Restoration Network case, EPA should 

include in the rule, the requirement that EPA will respond to any petition for a determination within one year of the filing 

of the petition with EPA. The structure proposed in this paragraph will allow EPA to give feedback to states that allows 

states to comply, but will also address the situation where states refuse to bring their standards up to date with current 

science and other information. It will preserve EPA's oversight role in a manner that is manageable but that also 

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ensures the purpose and intent of the Clean Water Act is preserved and advanced. 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section D 

4.c: Section E 

3.a 

4.b 

4.d 

Comment ID 0276-A2.001.003 

Author Name: Alves James 

Organization: Hopping Green & Sams on behalf of Florida Electric Power Coordinating Group, Inc. 

However, the proposed amendment, like the existing regulation, fails to provide objective criteria for EPA to issue a 

determination under CWA § 303(c)(4)(B). In the preamble to the proposed rule as published September 4, 2013, it is 

stated: "Such a determination is made at the Administrator's discretion after evaluation all relevant factors." 78 Fed. 

Reg. 54521. The "relevant factors" are not articulated. But they should be. 

EPA should propose objective criteria explaining the basis for the Administrator, or her designee, to issue a 

determination under CWA § 303(c)(4)(B). Those criteria should include consideration of whether the affected state has 

been given a meaningful opportunity to develop its own criteria and unreasonably declined to do so. The amended 

regulations should clearly articulate that a determination must be based on statistically significant water quality data and 

consideration of feasibility. 

Response 

For response to this comment, see the following response essay(s): 

4.c 

4.c: Section B 

4.d 

4.D - ADMIN - OTHER GENERAL 

Comment ID 0158-A1.001.038 

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Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

7) Final Administrator Determinations" at §131.22 

The additional language in the proposed WQS regulation at §131.22 appears to be an effort to insulate EPA from 

claims it has established a new water quality standard through guidance or other writing without going through the 

regulations promulgation process required by the Administrative Procedures Act. KDOW has no issue with the signatory 

and statement requirements, so long as EPA does not require States to 'comply' with guidance or other un-promulgated 

water quality standard, or else resign themselves to EPA objection to permits that don't adopt the water quality standard 

recommended in such guidance, similar to the conductivity criterion in EPA's "final guidance": "Improving EPA Review 

of Appalachian Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy Act, and the 

Environmental Justice Executive Order," issued July 21, 2011. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section A 

6.g 

Comment ID 0166-A2.001.038 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

7) Final Administrator Determinations" at §131.22 

The additional language in the proposed WQS regulation at §131.22 appears to be an effort to insulate EPA from 

claims it has established a new water quality standard through guidance or other writing without going through the 

regulations promulgation process required by the Administrative Procedures Act. KDOW has no issue with the signatory 

and statement requirements, so long as EPA does not require States to 'comply' with guidance or other un-promulgated 

water quality standard, or else resign themselves to EPA objection to permits that don't adopt the water quality standard 

recommended in such guidance, similar to the conductivity criterion in EPA's "final guidance": "Improving EPA Review 

of Appalachian Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy Act, and the 

Environmental Justice Executive Order," issued July 21, 2011. 

Response 

For response to this comment, see the following response essay(s): 

08/04/2015 05:01 PM EDT 2-205 
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4.d 

4.d: Section A 

6.g 

Comment ID 0167-A1.001.005 

Author Name: Anderson Paul 

Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District 

To the extent any such determination would propose adopting a new or amended standard, the District submits that 

should be done pursuant to a formal rulemaking notice and subsequent proceedings. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section D 

Comment ID 0171-A2.001.002 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

Necessity Determinations- CWA § 303(c)(4)(B)
 

EPA has proposed an amendment to its existing regulations that would clarify that a determination by the Administrator
 

under § 303(c)(4)(B) of the Clean Water Act, i.e., a determination that federally promulgated water quality criteria are
 

necessary for a state to remain in compliance with the CWA, must be signed by the Administrator or a duly authorized
 

designee. The necessity determination must also include a statement that the document constitutes a determination
 

under§ 303(c)(4)(B) of the CWA.
 

The Clean Water Act places primary responsibility for the development of surface water criteria upon the states. [FN1]
 

Federal intervention - i.e., EPA imposition of federal water criteria upon a State - is an extraordinary event. In the
 

preamble to its rule adopting numeric criteria for certain toxic constituents, EPA explained: "Federal promulgation of
 

State water quality standards should be a course of last resort. It is symptomatic of something awry with the basic
 

statutory scheme." 57 Fed. Reg. 60858. [FN2]
 

As summarized by the Tenth Circuit in American Wildlands v Browner:
 

[S]tates have the primary role, under§ 303 of the CWA (33 U.S.C. § 1313), in establishing water quality standards.
 

EPA's sole function, in this respect, is to review those standards for approval.' " 260 F.3d 1192, 1194, citing, City of
 

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Albuquerque v. Browner, 97 F.3d 415, 425 (10th Cir.1996) (quoting Natural Res. Def Council, Inc. v. EPA, 16 F.3d 

1395, 1401 (4th Cir.1993)). Therefore, the EPA has a limited role in reviewing water quality standards. Id. (Congress 

clearly intended the EPA to have a limited, non-rulemaking role in the establishment of water quality standards by 

states .... ). Id. 

In United Paper Institute, Inc. v. EPA, 996 F.2d 346 (D.C. Cir. 1993) the Court explained: 

In accord with Congress' intent to cast the states in the featured role in the promulgation of water quality standards, the 

EPA may step in and promulgate water quality standards itself only in limited circumstances. It may act only where (1) it 

determines that a state's proposed new or revised standard does not measure up to CWA requirements and the state 

refuses to accept EPA-proposed revisions to the standard or (2) a state does not act to promulgate or update a 

standard but, in the EPA's view, a new or revised standard is necessary to meet CWA muster. See 33 U.S.C. § 

1313(c)(3)-(4). 

The Courts are clear in their view; EPA promulgates criteria when a state fails to do so or the criteria proposed by a 

State are inconsistent with the directives of the Clean Water Act. 

EPA has in the past interpreted CWA § 303(c)(4)(B) as a license to impose federal criteria upon the States as it sees fit, 

regardless as to whether a state has failed to propose criteria that EPA deems necessary or failed in its attempt to 

promulgate criteria to EPA's satisfaction. Section 303(c)(4) of the Clean Water Act states: 

(4) The Administrator shall promptly prepare and publish proposed regulations setting forth a revised or new water 

quality standard for the navigable waters involved-

(A) if a revised or new water quality standard submitted by such State under paragraph (3) of this subsection for such 

waters is determined by the Administrator not to be consistent with the applicable requirements of this Act, or 

(B) in any case where the Administrator determines that a revised or new standard is necessary to meet the 

requirements of this Act. The Administrator shall promulgate any revised or new standard under this paragraph not later 

than ninety days after he publishes such proposed standards, unless prior to such promulgation, such State has 

adopted a revised or new water quality standard which the Administrator determines to be in accordance with this Act. 

(Emphasis added). 

While CWA § 303(c)(4)(B) appears to describe the authority of the Administrator in the context of a state action-or 

inaction-EPA has historically taken the position that the first sentence in subparagraph (B) provides the Administrator 

authority to promulgate criteria whenever the Administrator sees fit independently and without regard to the affected 

state. EPA's determination that numeric nutrient criteria were needed for the State of Florida was based upon this 

provision. 

In the Florida litigation related to numeric nutrient criteria for Florida waters, several environmental organizations filed 

suit against EPA and alleged that EPA's 1998 Clean Water Action Plan was the equivalent of a formal determination 

under CWA § 303(c)(4)(B) that numeric nutrient criteria were required for the State of Florida. It appears that the 

proposed amendment to the existing regulations is intended to eliminate that argument and to address the 

circumstances in CORALATIONS v. EPA, 477 F.Supp.2d 413 (D. Puerto Rico 2007) in which a letter from EPA's 

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Region 2 Director of the Division of Water Management was declared by the Court to be a formal determination that 

new or revised water quality standards for Puerto Rico were needed to address deficiencies in its antidegradation policy 

(which the EPA division director concluded had failed to establish implementation procedures and failed to establish 

methods for applying its antidegradation policy and implementation methods to wetlands). 

[FN1] See 33 U.S.C. § 1251(b); Clean Water Act (CWA) § 101(b) and 33 U.S.C. § 1313(c); CWA § 303(c). 

[FN2] In defending a suit alleging that EPA had not promptly promulgated water quality standards for Arizona, the Court 

in Defenders of Wildlife v. Browner observed: "EPA focuses on the legislative history of the CWA which discusses the 

ideal federal-state regulatory balance and suggests that the Agency should work closely with states to obtain approved 

standards before acting to promulgate water quality standards for state waters." Citing, H.R.Rep. No. 911, 92d Cong., 

2d Sess. 105 (1972) reprinted in, 1 Cong.Res.Serv., 93d Cong. 1st Sess., A Legislative History of the Water Pollution 

Control Act Amendments of 1972 at 753, 792. Defenders of Wildlife v. Browner, 909 F.Supp. 1342, 1346 (Dist. Ariz. 

1995). 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section C 

4.d: Section D 

3.a 

4.c 

Chapter 2 - Comment Documents Administrator’s Determination 

Comment ID 0171-A2.001.004 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

In the Florida litigation challenging EPA's Water Quality Standards for the State of Florida's Lakes and Flowing Waters; 

Final Rule (75 Fed. Reg. 75762, December 6, 2010), the U.S. District Court for the Northern District of Florida ruled that 

determinations under CWA § 303(c)(4)(B) are final agency action and may be challenged under the federal 

Administrative Procedures Act. [FN3] Applying the test set forth in Bennett v. Spear, 520 U.S. 154, 177-78 (1997), Court 

stated: 

First, the Administrator has finished work on the question whether the existing Florida standards are insufficient. That 

decision has been made; there is nothing tentative about it. And second, legal consequences have flowed from the 

decision, certainly for the State of Florida, but also for the industry associations. The Administrator has definitively 

invalidated the existing Florida standards, which directly impact the associations' members, though the effective date of 

the standards' demise and the substance of their replacements remain uncertain. [FN4] 

The U. S. Department of Justice (DOJ), representing EPA in the Florida nutrient litigation, initially resisted the Court's 

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ruling in subsequent filings but then embraced the concept after modifying the Florida necessity determination. In its 

response to a motion to enforce the consent decree entered in the Florida litigation, EPA, through the DOJ states: 

As the litigation in both this Court and Eleventh Circuit have made clear, parties wishing to challenge a determination 

made pursuant to Section 303(c)(4)(B) of the CWA should do so in a challenge to the determination itself. See, Fla. 

Wildlife Fed'n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296, 1306 (11 1 h Cir. 2011) (dismissing appeal of this 

Court's order entering consent decree for lack of standing where the Court concluded that it was the 2009 

determination, and not the consent decree, that created the appellants' claimed injury); ECF No. 307, Order of 

September 30, 2011 denying EPA's motion to dismiss counterclaim (citing the Eleventh Circuit's opinion in finding that 

EPA's 2009 determination was reviewable under the APA; ECF No. 351, Order of February 18, 2012, at 36-44 

(resolving APA challenges to the 2009 Section determination). [FN5] 

[FN3] "In sum, the Power and Utility Associations may challenge the necessity determination under the APA, and 

indeed have done so." Florida Wildlife Federation, et. al. v. Gina McCarthy, Case No. 4:08-cv-00324- RH-WCS, Order 

On The Merits (ECF No. 351), at page 80. 

[FN4] Florida Wildlife Federation, et. al. v. Gina McCarthy, Case No. 4:08-cv-00324-RH-WCS, Order Denying Motions 

to Dismiss (ECF No. 307), at page 3, 4. 

[FN5] Florida Wildlife Federation, et. al. v. Gina McCarthy, Case No. 4:08-cv-00324-RH-WCS, EPA's Combined 

Response to Plaintiffs' Motion to Enforce the Consent Decree and Reply in Support of EPA's Motion to Modify Consent 

Decree (ECF No. 451). 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section A 

Comment ID 0171-A2.001.006 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

Barring unforeseen exigent circumstances, the Administrator should not be able to make such a determination if an 

EPA-approved State plan for developing the same criteria is ongoing. Such an approach is consistent with the March 

16, 2011, memorandum issued by (then) Acting Assistant Administrator Nancy Stoner to EPA's regional administrators. 

Attached to the Stoner memo is a list of eight elements to be included in a "state framework for managing nitrogen and 

phosphorus pollution." Number eight is a recommendation that the states "[d]evelop a work plan and schedule for 

numeric criteria development." 

EPA had approved Florida's work plan and schedule for development of numeric nutrient criteria and was fully aware of 

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the work the Florida Department of Environmental Protection (FDEP) had performed and the work that was underway; 

an EPA Region 4 representative served on Florida's numeric nutrient criteria technical advisory committee. Prompted 

by litigation, EPA nonetheless disregarded Florida's efforts, issued a post-lawsuit necessity determination, and 

promulgated federal numeric nutrient criteria resulting in years of litigation that remains pending today. In the interim, 

FDEP promulgated numeric nutrient criteria that were approved by EPA on November 30, 2012. Florida's 

Environmental Regulation Commission approved those criteria for adoption by FDEP on December 8, 2011, within 

months of the State's original schedule as set forth in the FDEP plan. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section C 

Comment ID 0173-A1.001.002 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

Necessity Determinations- CWA § 303(c)(4)(B) 

EPA has proposed an amendment to its existing regulations that would clarify that a determination by the Administrator 

under § 303(c)(4)(B) of the Clean Water Act, i.e., a determination that federally promulgated water quality criteria are 

necessary for a state to remain in compliance with the CWA, must be signed by the Administrator or a duly authorized 

designee. The necessity determination must also include a statement that the document constitutes a determination 

under§ 303(c)(4)(B) of the CWA. 

The Clean Water Act places primary responsibility for the development of surface water criteria upon the states. [FN1] 

Federal intervention - i.e., EPA imposition of federal water criteria upon a State - is an extraordinary event. In the 

preamble to its rule adopting numeric criteria for certain toxic constituents, EPA explained: "Federal promulgation of 

State water quality standards should be a course of last resort. It is symptomatic of something awry with the basic 

statutory scheme." 57 Fed. Reg. 60858. [FN2] 

As summarized by the Tenth Circuit in American Wildlands v Browner: 

[S]tates have the primary role, under§ 303 of the CWA (33 U.S.C. § 1313), in establishing water quality standards. 

EPA's sole function, in this respect, is to review those standards for approval.' " 260 F.3d 1192, 1194, citing, City of 

Albuquerque v. Browner, 97 F.3d 415, 425 (10th Cir.1996) (quoting Natural Res. Def Council, Inc. v. EPA, 16 F.3d 

1395, 1401 (4th Cir.1993)). Therefore, the EPA has a limited role in reviewing water quality standards. Id. (Congress 

clearly intended the EPA to have a limited, non-rulemaking role in the establishment of water quality standards by 

states .... ). Id. 

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In United Paper Institute, Inc. v. EPA, 996 F.2d 346 (D.C. Cir. 1993) the Court explained: 

In accord with Congress' intent to cast the states in the featured role in the promulgation of water quality standards, the 

EPA may step in and promulgate water quality standards itself only in limited circumstances. It may act only where (1) it 

determines that a state's proposed new or revised standard does not measure up to CWA requirements and the state 

refuses to accept EPA-proposed revisions to the standard or (2) a state does not act to promulgate or update a 

standard but, in the EPA's view, a new or revised standard is necessary to meet CWA muster. See 33 U.S.C. § 

1313(c)(3)-(4). 

The Courts are clear in their view; EPA promulgates criteria when a state fails to do so or the criteria proposed by a 

State are inconsistent with the directives of the Clean Water Act. 

EPA has in the past interpreted CWA § 303(c)(4)(B) as a license to impose federal criteria upon the States as it sees fit, 

regardless as to whether a state has failed to propose criteria that EPA deems necessary or failed in its attempt to 

promulgate criteria to EPA's satisfaction. Section 303(c)(4) of the Clean Water Act states: 

(4) The Administrator shall promptly prepare and publish proposed regulations setting forth a revised or new water 

quality standard for the navigable waters involved--

(A) if a revised or new water quality standard submitted by such State under paragraph (3) of this subsection for such 

waters is determined by the Administrator not to be consistent with the applicable requirements of this Act, or 

(B) in any case where the Administrator determines that a revised or new standard is necessary to meet the 

requirements of this Act. The Administrator shall promulgate any revised or new standard under this paragraph not later 

than ninety days after he publishes such proposed standards, unless prior to such promulgation, such State has 

adopted a revised or new water quality standard which the Administrator determines to be in accordance with this Act. 

(Emphasis added). 

While CWA § 303(c)(4)(B) appears to describe the authority of the Administrator in the context of a state action-or 

inaction-EPA has historically taken the position that the first sentence in subparagraph (B) provides the Administrator 

authority to promulgate criteria whenever the Administrator sees fit independently and without regard to the affected 

state. EPA's determination that numeric nutrient criteria were needed for the State of Florida was based upon this 

provision. 

In the Florida litigation related to numeric nutrient criteria for Florida waters, several environmental organizations filed 

suit against EPA and alleged that EPA's 1998 Clean Water Action Plan was the equivalent of a formal determination 

under CWA § 303(c)(4)(B) that numeric nutrient criteria were required for the State of Florida. It appears that the 

proposed amendment to the existing regulations is intended to eliminate that argument and to address the 

circumstances in CORALATIONS v. EPA, 477 F.Supp.2d 413 (D. Puerto Rico 2007) in which a letter from EPA's 

Region 2 Director of the Division of Water Management was declared by the Court to be a formal determination that 

new or revised water quality standards for Puerto Rico were needed to address deficiencies in its antidegradation policy 

(which the EPA division director concluded had failed to establish implementation procedures and failed to establish 

methods for applying its antidegradation policy and implementation methods to wetlands). 

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[FN1] See 33 U.S.C. § 1251(b); Clean Water Act (CWA) § 101(b) and 33 U.S.C. § 1313(c); CWA § 303(c). 

[FN2] In defending a suit alleging that EPA had not promptly promulgated water quality standards for Arizona, the Court 

in Defenders of Wildlife v. Browner observed: "EPA focuses on the legislative history of the CWA which discusses the 

ideal federal-state regulatory balance and suggests that the Agency should work closely with states to obtain approved 

standards before acting to promulgate water quality standards for state waters." Citing, H.R.Rep. No. 911, 92d Cong., 

2d Sess. 105 (1972) reprinted in, 1 Cong.Res.Serv., 93d Cong. 1st Sess., A Legislative History of the Water Pollution 

Control Act Amendments of 1972 at 753, 792. Defenders of Wildlife v. Browner, 909 F.Supp. 1342, 1346 (Dist. Ariz. 

1995). 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section C 

4.d: Section D 

3.a 

4.c 

Comment ID 0173-A1.001.004 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

In the Florida litigation challenging EPA's Water Quality Standards for the State of Florida's Lakes and Flowing Waters; 

Final Rule (75 Fed. Reg. 75762, December 6, 2010), the U.S. District Court for the Northern District of Florida ruled that 

determinations under CWA § 303(c)(4)(B) are final agency action and may be challenged under the federal 

Administrative Procedures Act. [FN3] Applying the test set forth in Bennett v. Spear, 520 U.S. 154, 177-78 (1997), Court 

stated: 

First, the Administrator has finished work on the question whether the existing Florida standards are insufficient. That 

decision has been made; there is nothing tentative about it. And second, legal consequences have flowed from the 

decision, certainly for the State of Florida, but also for the industry associations. The Administrator has definitively 

invalidated the existing Florida standards, which directly impact the associations' members, though the effective date of 

the standards' demise and the substance of their replacements remain uncertain. [FN4] 

The U. S. Department of Justice (DOJ), representing EPA in the Florida nutrient litigation, initially resisted the Court's 

ruling in subsequent filings but then embraced the concept after modifying the Florida necessity determination. In its 

response to a motion to enforce the consent decree entered in the Florida litigation, EPA, through the DOJ states: 

As the litigation in both this Court and Eleventh Circuit have made clear, parties wishing to challenge a determination 

made pursuant to Section 303(c)(4)(B) of the CWA should do so in a challenge to the determination itself. See, Fla. 

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Wildlife Fed'n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296, 1306 (11 1 h Cir. 2011) (dismissing appeal of this 

Court's order entering consent decree for lack of standing where the Court concluded that it was the 2009 

determination, and not the consent decree, that created the appellants' claimed injury); ECF No. 307, Order of 

September 30, 2011 denying EPA's motion to dismiss counterclaim (citing the Eleventh Circuit's opinion in finding that 

EPA's 2009 determination was reviewable under the APA; ECF No. 351, Order of February 18, 2012, at 36-44 

(resolving APA challenges to the 2009 Section determination). [FN5] 

[FN3] "In sum, the Power and Utility Associations may challenge the necessity determination under the APA, and 

indeed have done so." Florida Wildlife Federation, et. al. v. Gina McCarthy, Case No. 4:08-cv-00324- RH-WCS, Order 

On The Merits (ECF No. 351), at page 80. 

[FN4] Florida Wildlife Federation, et. al. v. Gina McCarthy, Case No. 4:08-cv-00324-RH-WCS, Order Denying Motions 

to Dismiss (ECF No. 307), at page 3, 4. 

[FN5] Florida Wildlife Federation, et. al. v. Gina McCarthy, Case No. 4:08-cv-00324-RH-WCS, EPA's Combined 

Response to Plaintiffs' Motion to Enforce the Consent Decree and Reply in Support of EPA's Motion to Modify Consent 

Decree (ECF No. 451). 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section A 

Comment ID 0173-A1.001.006 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

Barring unforeseen exigent circumstances, the Administrator should not be able to make such a determination if an 

EPA-approved State plan for developing the same criteria is ongoing. Such an approach is consistent with the March 

16, 2011, memorandum issued by (then) Acting Assistant Administrator Nancy Stoner to EPA's regional administrators. 

Attached to the Stoner memo is a list of eight elements to be included in a "state framework for managing nitrogen and 

phosphorus pollution." Number eight is a recommendation that the states "[d]evelop a work plan and schedule for 

numeric criteria development." 

EPA had approved Florida's work plan and schedule for development of numeric nutrient criteria and was fully aware of 

the work the Florida Department of Environmental Protection (FDEP) had performed and the work that was underway; 

an EPA Region 4 representative served on Florida's numeric nutrient criteria technical advisory committee. Prompted 

by litigation, EPA nonetheless disregarded Florida's efforts, issued a post-lawsuit necessity determination, and 

promulgated federal numeric nutrient criteria resulting in years of litigation that remains pending today. In the interim, 

FDEP promulgated numeric nutrient criteria that were approved by EPA on November 30, 2012. Florida's 

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Environmental Regulation Commission approved those criteria for adoption by FDEP on December 8, 2011, within 

months of the State's original schedule as set forth in the FDEP plan. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section C 

Comment ID 0178-A2.001.022 

Author Name: Burnell Barry 

Organization: Idaho Department of Environmental Quality 

Please make sure to clarify how a director's designee is announced. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section B 

Comment ID 0189-A1.001.006 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

We request that if EPA adopts a rule such as that proposed here, it also establish a clear process through which 

citizens can obtain, within a reasonable amount of time, a ruling by the Administrator on whether a change in state 

WQS is necessary. No such provision is now proposed by EPA. 

In Region 10, a relevant case is pending (Puget Soundkeeper Alliance et al. v. EPA). EPA has been giving "feedback" 

to the State of Washington regarding the inadequacy of its fish consumption rate calculations and applicable human 

health criteria for almost a decade. Earlier, EPA issued guidance directed to the states in 2000 that made it clear that 

Washington's standard was inadequate and would need revision. Most recently, the Region 10 Administrator wrote to 

Washington following two letters in the previous 18 months from head of the Region 10 WQS unit telling the state it was 

not protecting consumers of fish in the state. EPA has, as it should do under the CWA, communicated to a state that its 

standards are inadequate, triggering EPA's obligation to act. Because the state is plainly a barrier to implementation of 

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the CWA, it is now EPA's obligation to act. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section A 

4.d: Section B 

4.d: Section D 

4.b 

4.c 

Comment ID 0195-A1.001.007 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

We request that if EPA adopts a rule such as that proposed here, it also establish a clear process through which 

citizens can obtain, within a reasonable amount of time, a ruling by the Administrator on whether a change in state 

WQS is necessary. No such provision is now proposed by EPA. 

In Region 10, a relevant case is pending (Puget Soundkeeper Alliance et al. v. EPA). EPA has been giving "feedback" 

to the State of Washington regarding the inadequacy of its fish consumption rate calculations and applicable human 

health criteria for almost a decade. Earlier, EPA issued guidance directed to the states in 2000 that made it clear that 

Washington's standard was inadequate and would need revision. Most recently, the Region 10 Administrator wrote to 

Washington following two letters in the previous 18 months from head of the Region 10 WQS unit telling the state it was 

not protecting consumers of fish in the state. EPA has, as it should do under the CWA, communicated to a state that its 

standards are inadequate, triggering EPA's obligation to act. Because the state is plainly a barrier to implementation of 

the CWA, it is now EPA's obligation to act. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section A 

4.d: Section B 

4.d: Section D 

4.b 

4.c 

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Comment ID 0199-A1.001.003 

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 

Rather than narrowing the application of its § 303(c)(4)(B) authority, EPA should focus on addressing existing situations 

where states are failing to meet CWA requirements and § 303(c)(4)(B) action is needed. There are several states, 

including states in the Southeast, which have repeatedly delayed adopting or revising Water Quality Standards that are 

protective of water quality. For example, in North Carolina, the Department of Environment and Natural Resources 

("DENR") is more than four years behind in conducting the triennial review required under CWA § 303(c). [FN3] 

Beginning in 2010, EPA has written to DENR on several occasions recommending numerous revisions to be made to 

North Carolina's WQS during its triennial review, but DENR has not adopted any of those to date. [FN4] Alabama is 

also unduly delayed in its triennial review process. EPA responded to Alabama's 2009 triennial review with a letter 

containing many recommendations, of which the Alabama Department of Environmental Management ("ADEM") has 

adopted none to date. [FN5] ADEM subsequently accepted triennial review comments in 2012 but has yet to conclude 

the review, putting Alabama almost 5 years behind schedule. 

If EPA adopts this revision, it should include a specific procedure for members of the public to petition EPA for a CWA § 

303(c)(4)(B) determination and obtain a response from EPA within a reasonable amount of time. The revision should 

also include clear time limits on how long a state is given to come into CWA compliance and how long after that 

deadline EPA will make its determination. 

[FN3] See, e.g., Letter from Derb Carter & Julie Youngman, Southern Envtl Law Ctr. to Gwendolyn Keyes Fleming, EPA 

Region 4 (Mar. 20, 2013); Annalise Frank, NC Four Years Behind on Clean Water Act Rules, Raleigh News & 

Observer, Aug. 10, 2013. North Carolina, which was once held up as an example of a leader in water quality monitoring 

and assessment, is now violating the CWA triennial review requirements and has failed to adopt EPA-approved rules 

for toxic metals including arsenic, cadmium, copper, silver and zinc. Id. 

[FN4] See, e.g., Letter from Annie M. Godfrey, Envtl. Prot. Agency, to Alan Clark, N.C. Dep't of Envt and Nat. Res. 

(Aug. 20, 2010); James D. Giattina, Envtl. Prot. Agency, to Thomas A. Reeder, N.C. Dep't of Envt and Nat. Res.(July 

31, 2013). 

[FN5] Letter from Joanne Benante, Envtl. Prot. Agency to James Mclndoe, Al. Dep't. of Envtl. Mgmt. (Aug. 20, 2010). 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section C 

4.d: Section D 

4.b 

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4.c 

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Comment ID 0201-A1.001.009 

Author Name: Godfrey Mike 

Organization: Alabama Power 

Alabama Power encourages EPA to also include a requirement in § 131.22 that obligates the EPA Administrator to 

explain or justify the reasoning or bases upon which a determination was made pursuant to Section 303(c)(4)(B) to 

better inform the public and facilitate more meaningful comments to the new or revised WQS proposed as result of the 

agency action. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section C 

Comment ID 0205-A1.001.004 

Author Name: Burd Charlie
 

Organization: Independent Oil and Gas Association of West Virginia Inc.
 

Notwithstanding this proposed language, however, IOGA-WV cautions that USEPA still must avoid the implementation 

of its informal comments in such a way that they effectively become mandatory requirements or de facto rules. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section A 

6.g 

Comment ID 0206-A1.001.004 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

I. EPA Administrator's Determinations under CWA Section 303(c)(4)(B) 

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Waterkeepers frequently encounter states that have failed to implement new and revised water quality standards 

necessary to implement the CWA and whose water quality standards are inconsistent with the requirements of the 

CWA. Under CWA Section 303(c)(4)(B), the EPA Administrator is required to promulgate water quality standards for 

states that fail to adopt new and revised water quality standards that are necessary to meet the requirements of the 

CWA. This obligation extends to situations where a state submitted a revised or new standard to EPA for approval and 

where states should adopt new or revised standard but have not done so. Unless EPA is willing to step in when states 

fail to act, water quality standards - the most fundamental aspect of the CWA - will not be adequate to protect the public 

from pollution that endangers human health and the environment. 

Despite the fact that inadequate water quality standards are a well-known, national problem, EPA is proposing to 

narrow circumstances under which it must act when a state or tribe fails to maintain adequate standards to protect 

water quality. EPA's reasoning behind this proposal is to allow it to provide states with "feedback" about their water 

quality standards without "inadvertently" triggering EPA's mandatory duty to adopt standards that meet CWA 

requirements. 78 Federal Register 54,521. Although EPA's rationale is based on a purported concern that the public is 

confused by communications made to states from EPA about the adequacy of state water quality standards, it appears 

that the true motivation behind the change is EPA's desire to avoid litigation that forces it to promulgate water quality 

standards required under the CWA. 

Under the Proposed Rule, EPA would "amend paragraph (b) of § 131.22 to add a requirement that an Administrator's 

determination must be signed by the Administrator or his or her duly authorized delegate, and must include a statement 

that the document is a determination for purposes of section 303(c)(4)(B) of the Act." 78 Federal Register 54,521. The 

clear intent of this change is to allow EPA to avoid substantive review of its decisions as to whether a state needs new 

or revised water quality standards. See e.g. Gulf Restoration Network v. Jackson, Civ. Action No. 12-677 (E.D. La.) 

Order of Sept. 3, 2013. 

The more realistic and pressing concern, from a water quality perspective, is a situation in which EPA fails to use its 

authority under Section 303(c)(4)(B) after a state has clearly failed to adopt adequate water quality standards. In that 

situation, which is unfortunately fairly common, the public would be harmed as this Proposed Rule attempts to foreclose 

a judicial finding that would compel EPA action. On the other hand, courts do not appear to be confused as to the need 

for EPA determinations in specific cases, and EPA has demonstrated a pattern of seeking to avoid promulgating 

standards where states have failed to meet their CWA obligations. See e.g., Florida Wildlife Fed'n v. Jackson, 853 F. 

Supp. 1138 (N.D. Fla. 2012) (EPA did not dispute that once it determined Florida's nutrient standards were inadequate, 

it had a duty to promulgate standards under 303(d)(4)(B).); Puget Soundkeeper Alliance et al. v. EPA, No. 2:13-cv01839- JCC (W.D. Wa) (where EPA has noted the shortcoming of the state's fish consumption rate calculations and 

attendant human health criteria for almost a decade but has not promulgated standards). 

To our knowledge, EPA has never been "inadvertently" forced to promulgate water quality standards for states as a 

result of communicating feedback or maintaining an open dialogue with the states. There is no legitimate basis for 

amending Part 131 to address this concern. In the preamble to the Proposed Rule, EPA states that it is concerned that 

litigation will trigger "a duty on the part of the EPA to propose and promulgate WQS before either a state, tribe or the 

Agency believes such a course is appropriate or necessary." 78 Federal Register 54,521. EPA is not given discretion to 

determine whether promulgation is "appropriate or necessary" under the CWA, and EPA cannot give itself such 

discretion through this rulemaking. In CWA Section 303, Congress plainly requires EPA to evaluate whether states' 

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water quality standards meet the requirements of the CWA and to promulgate compliant standards for any state that 

fails to do so. Given the scope of this problem nationwide and the seriousness of the consequences associated with 

inadequate water quality standards, EPA should be taking decisive action to increase compliance determinations and 

promulgate standards where states fail to act. Because of resource limitations, EPA should encourage citizen 

participation in ensuring that water quality standards are compliant with the CWA, as opposed to creating new 

standards to limit the public's ability to do so. Rather than do either of these things, the proposed language would 

reduce the instances in which water quality standards can be determined to be non-compliant with the CWA, and 

attempts to limit citizen's ability to take action when the states and EPA fail to act. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section A 

4.d: Section C 

4.d: Section D 

4.b 

4.c 

Comment ID 0206-A1.001.006 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

Instead, EPA should adopt language that requires a determination of compliance with the CWA for all WQS by the 

Administrator during triennial reviews, and that provides a mechanism for the public to seek a formal determination from 

the Administrator that requires a response in a reasonable amount of time. Accordingly, we recommend that the 

proposed language be amended as follows: 

§ 131.22 EPA promulgation of water quality standards. 

***** 

(b) The Administrator may also propose and promulgate a regulation, applicable to one or more States, setting forth a 

new or revised standard upon determining such a standard is necessary to meet the requirements of the Act. [begin 

strikeout] To constitute an Administrator's determination, such determination must: [end strikeout] [begin new text] The 

Administrator or his or her duly authorized delegate shall review each state's water quality standards and determine 

compliance with the requirements of the Act as necessary to ensure compliance with the Act and after completion of the 

state's triennial review process. The triennial review determination must: [end new text] 

(1) Be signed by the Administrator or his or her duly authorized delegate, and 

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(2) Contain a statement that the document constitutes an Administrator's determination under section 303(c)(4)(B) of 

the Act. 

This change to the proposed language will ensure that the EPA will be able to consult with the states during the triennial 

review process without fear that the public will misconstrue any feedback provided, while also ensuring that EPA will 

review the states water quality standards for compliance with the CWA on a regular basis and will be allowed, not 

forced, to make a formal determination that is contemplated by the CWA Section 303. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section C 

Comment ID 0208-A1.001.006 

Author Name: Foster Wade 

Organization: The Fertilizer Institute 

However, the proposed amendments, like the existing regulations, do not provide objective criteria for making a 

necessity determination. Indeed, in the preamble to the Proposed Rule, it is stated: "Such a determination is made at 

the Administrator's discretion after evaluation all relevant factors."[FN4] What those relevant factors may be is absent 

from either the existing or Proposed Rule. TFI believes the wording of the proposed amendment continues to rest too 

much discretion in the Administrator rather than the states, contrary to the directives of the CWA. 

The CWA places primary responsibility for the development of surface water criteria upon the states and tribes. [FN5] 

Federal intervention, i.e., EPA imposition of federal water criteria upon a state, is an extraordinary event. In the 

preamble to its rule adopting numeric criteria for certain toxic constituents, EPA explained: "Federal promulgation of 

State water quality standards should be a course of last resort. It is symptomatic of something awry with the basic 

statutory scheme."[FN6] 

Nonetheless, EPA has in the past interpreted CWA section 303(c)(4)(B) as a license to impose federal criteria upon the 

States as it sees fit, regardless as to whether a state has failed to propose criteria that EPA deems necessary or failed 

in its attempt to promulgate criteria to EPA's satisfaction. While section 303(c)(4)(B) of the CWA appears to describe the 

authority of the Administrator in the context of a state action - or inaction - EPA has historically taken the position that 

the first sentence in subparagraph (B) provides the Administrator authority to promulgate criteria whenever the 

Administrator sees fit independently and without regard to the affected state. 

While choosing to take action under section 303(c)(4)(B) of the CWA may be at the discretion of the Administrator, the 

decision cannot be arbitrary and capricious, but instead based on an objective need - some real necessity - and not 

some political or legal exigency. To that end, any regulation addressing necessity determinations should include an 

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explanation of the facts and circumstances that would trigger "a course of last resort" of federal intervention into state 

primacy under the CWA. 

The Proposed Rule should therefore provide objective criteria as to when it is appropriate for the Administrator, or his or 

her designee, to make a determination under section 303(c)(4)(B) of the CWA. Those criteria should include whether or 

not the affected state or tribe has been given a meaningful opportunity to develop its own criteria but has refused to do 

so. The amended regulations also should articulate that any such determination must be based upon objective water 

quality data and supporting information. 

For example, barring unforeseen exigent circumstances, the Administrator should not be able to make a necessity 

determination if an EPA-approved state plan for developing the same criteria is ongoing. Such an approach is 

consistent with the March 16, 2011, memorandum issued by (then) Acting Assistant Administrator Nancy Stoner to 

EPA's regional administrators. Attached to the Stoner memo is a list of eight elements to be included in a "state 

framework for managing nitrogen and phosphorus pollution." Number eight is a recommendation that the states 

"[d]evelop a work plan and schedule for numeric criteria development." Where an EPA-approved state plan is in place, 

barring clear evidence that a state is not executing its plan, the circumstances triggering the Administrator's discretion 

under section 303(c)(4)(B) of the CWA do not arise. 

EPA should revise the proposed amendments to provide objective criteria as to when it is appropriate to make a 

necessity determination, and those criteria should include a finding that the state or tribe has had a meaningful 

opportunity to develop its own criterion(a) and has failed to do so. Existence of a state work plan and schedule for 

criterion(a) development should constitute a rebuttable presumption that a necessity determination is not warranted. 

[FN4] 78 Fed. Reg. at 54,521. 

[FN5] 33 U.S.C. §§ 1251, 1313(c). 

[FN6] 57 Fed. Reg. 60,848, 60,858 (Dec. 22, 1992). In defending a suit alleging that EPA had not promptly promulgated 

water quality standards for Arizona, the Court in Defenders of Wildlife v. Browner observed: "EPA focuses on the 

legislative history of the CWA which discusses the ideal federal-state regulatory balance and suggests that the Agency 

should work closely with states to obtain approved standards before acting to promulgate water quality standards for 

state waters." 909 F. Supp. 1342, 1346 (D. Ariz. 1995) (citing H.R. Rep. No. 911, 92d Cong., 2d Sess. 105 (1972) (as 

reprinted in 1 Cong. Res. Serv., 93d Cong. 1st Sess., "A Legislative History of the Water Pollution Control Act 

Amendments of 1972" at 753, 792)). 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section A 

4.d: Section C 

4.d: Section D 

3.a 

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4.c 

Chapter 2 - Comment Documents Administrator’s Determination 

6.g 

Comment ID 0215-A1.001.004 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

I. EPA Administrator's Determinations under CWA Section 303(c)(4)(B) 

Waterkeepers frequently encounter states that have failed to implement new and revised water quality standards 

necessary to implement the CWA and whose water quality standards are inconsistent with the requirements of the 

CWA. Under CWA Section 303(c)(4)(B), the EPA Administrator is required to promulgate water quality standards for 

states that fail to adopt new and revised water quality standards that are necessary to meet the requirements of the 

CWA. This obligation extends to situations where a state submitted a revised or new standard to EPA for approval and 

where states should adopt new or revised standard but have not done so. Unless EPA is willing to step in when states 

fail to act, the most fundamental aspect of the CWA, water quality standards, will not be adequate to protect the public 

from pollution that endangers human health and the environment. 

Despite the fact that inadequate water quality standards is a well-known, national problem, EPA is proposing to narrow 

circumstances under which EPA is obligated to act when a state or tribe fails to maintain adequate standards to protect 

water quality. EPA's stated purpose for narrowing its obligation is to allow it to freely give "feedback" to states regarding 

their water quality standards without "inadvertently" triggering EPA's mandatory obligation to propose a replacement 

standard. 78 Federal Register 54,521. Although EPA's rationale is based on a purported concern that the public is 

confused by communications made to states from EPA about the adequacy of state water quality standards, it appears 

that the true motivation behind the change is EPA's desire to avoid litigation that forces it to promulgate water quality 

standards required under the CWA. 

Under the Proposed Rule, EPA would "amend paragraph (b) of § 131.22 to add a requirement that an Administrator's 

determination must be signed by the Administrator or his or her duly authorized delegate, and must include a statement 

that the document is a determination for purposes of section 303(c)(4)(B) of the Act." 78 Federal Register 54,521. The 

clear intent of this change is to allow EPA to avoid substantive review of its decisions as to whether a state needs new 

or revised water quality standards. See e.g. Gulf Restoration Network v. Jackson, Civ. Action No. 12-677 (E.D. La.) 

Order of Sept. 3, 2013. 

The more realistic and pressing concern, from a water quality perspective, is a situation in which the state has clearly 

failed to adopt adequate water quality standards and EPA fails to use its authority under Section 303(c)(4)(B). In that 

situation, which is unfortunately fairly common, the public would be harmed as this Proposed Rule attempts to foreclose 

a judicial finding that would compel EPA action. On the other hand, courts do not appear to be confused as to the need 

for EPA determinations in specific cases, and EPA has demonstrated a pattern of seeking to avoid promulgating 

standards where states have failed to meet their CWA obligations. See e.g., Florida Wildlife Fed'n v. Jackson, 853 F. 

Supp. 1138 (N.D. Fla. 2012) (where EPA does not dispute that once it determines that Florida's nutrient standard are 

inadequate, it has a duty to promulgate new ones under 303(d)(4)(B) even when EPA's determination was a change in 

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position.); Puget Soundkeeper Alliance et al. v. EPA, No. 2:13-cv-01839-JCC (W.D. Wa) (where EPA has noted the 

shortcoming of the state's fish consumption rate calculations and attendant human health criteria for almost a decade 

but has not promulgated standards). 

To our knowledge, EPA has not been inadvertently forced into promulgating water quality standards for states as a 

result of communicating feedback or maintaining an open dialogue with the states. There is no legitimate basis for 

amending Part 131 to address this concern. In the preamble to the Proposed Rule, EPA states that it is concerned that 

litigation will trigger "a duty on the part of the EPA to propose and promulgate WQS before either a state, tribe or the 

Agency believes such a course is appropriate or necessary." 78 Federal Register 54,521. EPA is not given discretion to 

determine whether promulgation is "appropriate or necessary" under the CWA, and EPA cannot inject this type of 

discretion into enforcing the CWA requirements through this rulemaking. In CWA Section 303, Congress plainly 

intended for EPA to evaluate whether states' water quality standards meet the requirements of the CWA, and to 

promulgate compliant standards for states in the event the states failed to do so. Given the scope of this problem 

nationwide and the seriousness of the consequences associated with inadequate water quality standards, EPA should 

be taking action to increase compliance determinations and promulgate standards where states fail to act. Because of 

resource limitations, EPA should encourage citizen participation in ensuring that water quality standards are compliant 

with the CWA, as opposed to creating new standards to limit the public's ability to do so. Rather than do either of these 

things, the proposed language would reduce the instances in which water quality standards can be determined to be 

non-compliant with the CWA, and attempts to limit citizen's ability to take action when the states and EPA fail to act. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section A 

4.d: Section C 

4.d: Section D 

4.b 

4.c 

Comment ID 0215-A1.001.006 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

Instead, EPA should adopt language that requires a determination of compliance with the CWA for all WQS by the 

Administrator during triennial reviews, and that provides a mechanism for the public to seek a formal determination from 

the Administrator that requires a response in a reasonable amount of time. Accordingly, we recommend that the 

proposed language be amended as follows: 

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§ 131.22 EPA promulgation of water quality standards. 

* * ** * 

(b) The Administrator may also propose and promulgate a regulation, applicable to one or more States, setting forth a 

new or revised standard upon determining such a standard is necessary to meet the requirements of the Act. [begin 

strikeout] To constitute an Administrator's determination, such determination must: [end strikeout] [begin new text] The 

Administrator or his or her duly authorized delegate will review each state's water quality standards and determine 

compliance with the requirements of the Act as necessary to ensure compliance with the Act and after completion of the 

state's triennial review process. The triennial review determination must: [end new text] 

(1) Be signed by the Administrator or his or her duly authorized delegate, and 

(2) Contain a statement that the document constitutes an Administrator's determination under section 303(c)(4)(B) of 

the Act. 

This change to the proposed language will ensure that the EPA will be able to consult with the states during the triennial 

review process without fear that the public will misconstrue any feedback provided, while also ensuring that EPA will 

review the states water quality standards for compliance with the CWA on a regular basis and will be allowed, not 

forced, to make a formal determination that is contemplated by the CWA Section 303. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section C 

Comment ID 0220-A2.001.005 

Author Name: Anderson Paul 

Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District 

To the extent any such determination would propose adopting a new or amended standard, the District submits that 

should be done pursuant to a formal rulemaking notice and subsequent proceedings. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section D 

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Comment ID 0228-A2.001.007 

Author Name: Conn Rachel 

Organization: Amigos Bravos 

If EPA goes ahead with this proposal there must be language included for when a determination must occur, including 

enforceable timelines and clear expectations once a determination is made; in addition, there must be a clear process 

for citizens to compel such determinations. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section D 

4.c 

Comment ID 0263-A2.001.003 

Author Name: Gretchen Watkins Larry Wawronowicz 

Organization: Lac du Flambeau Band of Lake Superior Tribe of Chippewa Indians 

Administrator's determination that a state needs a water quality standard 

The CWA provides that the EPA Administrator "shall promptly prepare and publish proposed regulations setting forth 

new or revised water quality standards for a state in any case where the Administrator determines that a revised or new 

standard is necessary to meet the requirements of the Clean Water Act" (33 U.S.C. §1313(c)(4)(B)). EPA proposes to 

very narrowly interpret what it means for the Administrator to determine that a new or revised standard is necessary, 

imposing constraints on what constitutes a "determination" for purposes of invoking EPA's mandatory obligation to 

promulgate adequate standards. This provision enables EPA to evade its critically-important obligation to intervene 

when the state fails to maintain standards adequate to protect water quality under the CWA. We request that if EPA 

adopts a rule such as that proposed here, it also establish a clear process through which citizens can obtain, within a 

reasonable amount of time, a ruling by the Administrator on whether a change in state WQS is necessary. No such 

provision is now proposed by EPA. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section A 

4.d: Section C 

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4.d: Section D 

4.b 

4.c 

Comment ID 0274-A2.001.003 

Author Name: Yeaton Violet 

Organization: Region 10 Regional Tribal Operations Committee 

1. EPA Determinations 

The Proposed Rule appears to allow EPA to avoid substantive review of its decisions as to whether a state needs new 

or revised water quality standards, particularly in situations where a state has failed to adopt adequate water quality 

standards. 

While the Tribal Caucus supports efforts of EPA to clarify when a formal determination has been made in regards to 

water quality standards to avoid confusion, the Tribal Caucus believes this could be better served by drafting language 

that requires a determination of compliance with the Clean Water Act for all standards during the triennial review 

process The Tribal Caucus also believes that a mechanism should be in place to require consultation with affected tribal 

governments on that determination and that review of the EPA decision by tribes and the public be allowed. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section A 

4.d: Section C 

4.d: Section D 

4.c 

Comment ID 0282-A2.001.004 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

Ecology recommends that this section should also require that the administrator's determination be accompanied by a 

document demonstrating the legal requirement (law or regulation) prompting the determination and the requirement for 

the proposal and promulgation. 

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Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section C 

Comment ID 0283-A1.001.004 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

[This excerpt contains red-line/strikeout text. Refer to the original document for recommended edits.] 

However, we would also suggest a modification to section 131.22(c) that would require, where U.S. EPA promulgates 

water quality standards in the place of the State, U.S. EPA should be subject to all State laws relating to water quality 

standards adoption, not just procedural and public participation requirements. For example, in California, the Water 

Boards must comply with statutory requirements prior to adopting water quality objectives (equivalent to federal water 

quality criteria that are part of adopted water quality standards). These statutory requirements include consideration of 

numerous factors and the adoption of implementation plans and necessary implementation schedules. U.S. EPA should 

have the same obligations when it stands in the shoes of an individual State. For these reasons, we would propose the 

following minor modification to 40 C.F.R. §131.22(c): 

(c) In promulgating water quality standards, the Administrator is subject to the same policies, procedures, analyses, and 

public participation requirements established for States in these regulations [begin new text] as well as any State 

statutory requirements related to the adoption of water quality standards [end new text]. 

Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section D 

Comment ID 0284-A2.001.004 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

Ecology recommends that this section should also require that the administrator's determination be accompanied by a 

document demonstrating the legal requirement (law or regulation) prompting the determination and the requirement for 

the proposal and promulgation. 

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Response 

For response to this comment, see the following response essay(s): 

4.d 

4.d: Section C 

4.E - ADMIN - LEGAL 

Comment ID 0272-A2.001.006 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

1. Relative Roles of EPA and States. 

The Clean Water Act employs a cooperative federalism approach to protecting and cleaning up our nation's waters. To 

that end, the Clean Water Act requires that states, in the first instance, must develop water quality standards necessary 

to meet the requirements of the Clean Water Act and submit them to EPA for review and approval or disapproval. 33 

U.S.C. §1313(b). The Clean Water Act further requires that states review, as part of a public process, their water quality 

standards not less than once every three years in order to ensure that the standards keep pace with scientific and 

technical developments and to ensure that standards keep a state moving in the direction of eliminating discharges to 

the nation's waters. 33 U.S.C. §1313(c). If a state fails in its obligations, EPA is required to step in and promulgate 

standards for the state. Id. [FN1] It is this oversight role for EPA that is critical to ensuring that the Clean Water Act is 

not thwarted by a state's recalcitrance or other inability to promulgate protective standards. 

The importance of EPA's oversight role for water quality standards cannot be overstated. If EPA is not proactive and 

insistent regarding compliance with the Clean Water Act, a recalcitrant state (whether purposeful or not) can disrupt and 

delay implementation of the Clean Water Act and blunt its purpose and force. Congress recognized that the goals and 

requirements of the Clean Water Act are much too important to allow such barriers, putting EPA in the role of ensuring 

the intent is met. EPA's proposal regarding § 303 determinations (especially when coupled with current problems with 

triennial reviews, see below) risks allowing states to be barriers to effective implementation of the Clean Water Act. 

[FN1] Similarly, if EPA disapproves a state's water quality standards submission, (and EPA has a short period of time 

under the Clean Water Act to act on those submissions) the state has a limited period of time to correct the standards 

after which, EPA is required to step in and promulgate standards for the state. 33 U.S.C. § 1313(c)(4). 

Response 

For response to this comment, see the following response essay(s): 

4.e 

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