# CHAPTER 3 Issue Category: Miscellaneous

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Respons e to Public Comments

Wat er Quality Standard Regulatory Revisions

Augus t , 2015

40 CFR Pa rt 131 Docket #: EPA

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This document is part of a larger document

.Chapter 3 – Response Essays 14.a – Background



## Essay **14 .a**  **– Background**  **of Commenter/Organization**

**A. General**

The U.S. Environmental Protection Agency ( EPA ) appreciates the comments submitted on this rulemakin g, and acknowledges the examples of state and authorized tribal water quality standards ( WQS ) included by commenters. Comment excerpts included in this BACKGROUND issue category pertain to supplementary/introductory information provided by commenters regar ding personal or organizational background information. These comments do not provide information, criticism, or suggestions pertaining to any elements contained in EPA's proposed rule. As such, they are not considered to be substantive or significant comm ents on the proposed rule itself and
, therefore, do not require responses. With regard to the commenters that indicate their letters contain specific comments on the proposed rule, see the relevant essays of this comment response document for responses to the substantive comment excerpts.

For information and discussion about the final regulatory requirements, see the discussion in the preamble to the final rule, as well as the final rule requirements.



### B. Other
With regard to the comments expressing general opposition to the proposed rule, see EPA’s response in code 1.b.

With regard to the comments related to the length of the public comment period on the proposed rule, see EPA’s response in code 2.a.

With regard to the comments related to the public particip ation conducted on this rulemaking, see EPA’s response in code 2.d.

With regard to the comments related to states’ and authorized tribes’ primary role to set WQS, see EPA’s response in code 3.a.

With regard to the comments expressing general opposition to antidegradation, see EPA’s response to code 7.b.

With regard to the commenters providing general economic information, see EPA’s response to code 12.a.

With regard to the commenter indicating that they would submit comments within 30 days of the January 2, 2014 deadline, EPA notes that such comments would have been out of time, and that, in any event, no comments were received. See also document EPA

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- 0285 in the docket for today’s rule for an email chain confirming that no comments were submi tted by this commenter.Chapter 3 – Response Essays 14.b – Miscellaneous



## Essay **14 .b –**  **Miscellaneous and Out of Scope** 

**A. General**

The U.S. Environmental Protection Agency ( EPA ) appreciates the comments submitted on this rulemaking , and acknowledges the examples of state and authorized tribal water quality standards ( WQS ) included by commenters

. See also the final rule requirements, as well as the discussion in the preamble to the final rule. Some c omm en t excerpts included in this Miscellaneous issue cate gory do not provide information, criticism, or suggestions pertaining to any elements contained in EPA ’ s proposed rule. As such , they are not considered to be substantive or significant comments on the proposed rule itself and
, therefore, do not require re sponses.
Some commenters suggested that EPA provide states and authorized tribes proper training and funding to comply with the final rule. EPA is not increas ing funding through this rulemaking, but this rulemaking does not affect existing funding, such as that under Clean Water Act ( CWA ) section 106 , which is always subject to increase or decrease, as appropriate . EPA agrees with commenters that states, tribes, stakeholders and the public need proper training related to the requirements in the final rule. Following publication of the final rule, EPA intends to update its guidance to reflect the requirements of the final rule and to conduct outreach (e.g., public webinars) to discuss the final rule.



### B. Other
With regard to the comments related to states ’ and authorized tribes ’ primary role to set WQS, see EPA ’ s response in code 3.a.

With regard to the comments suggesting a website containing all of EPA ’ s CWA section 304(a) criteria recommendations, see http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm

. With regard to commenters suggesting that EPA add reference to antidegradation policies in section 131.3(i), the definition of WQS , see EP A’ s respons e to code 7.m – Antidegradation: EPA ’ s Legal Authority for discussion on EPA ’ s position that antidegradation requirements are WQS

. With regard to the comments related to EPA ’ s trust responsibilities, EPA acknowledges the United States ’ governmen t- to

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

- governance. See also EPA ’ s response in code 5.e

. Some commenters suggested that EPA consider the compounding financial impacts of all recent rules on communities, including the residential sewer rates increasing as a result of “ federa l ammonia limits. ” EPA notes that the “ federal ammonia limits ” that the commenter referred to are not, in fact, mandatory federal limits, but instead are EPA ’ s CWA section 304(a) criteria recommendations for ammonia, which are guidance to states and author ized tribes. E PA ’ s economic analysis (EA) for this rule focuses on the potential administrative burden and cost to all 50 states, the District of Columbia, five territories, the 40 authorized tribes with EPA

- approved WQS, and to EPA. While this rule does not establish any requirements directly applicable to regulated point sources or nonpoint sources (NPS) of pollutants orChapter 3 – Response Essays 14.b – Miscellaneous

pollution, EPA acknowledges that this rule may result in indirect costs to some regulated entities as a result of changes to WQS that states and authorized tribes adopt based on today ’ s final rule. EPA is unable to quantify indirect costs and benefits since it cannot anticipate precisely how the rule will be implemented by states and authorized tribes and because of a lack of d ata. See EPA ’s Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule) and EPA ’ s response to code 12.a . See also EPA ’ s response to code 6.g for discussion related to states ’ and authorized tribes ’ discretion related
to CWA secti on 304(a) criteria recommendations, which are EPA guidance. EPA notes that the final rule includes revisions related to CWA tools where economic factors can be considered (e.g., WQS variances). See also EPA ’ s economic guidance and tools to evaluation econo mic impact at http://water.epa.gov/scitech/swguidance/standards/economics/index.cfm

.



### C. Comments **That Are outside the**  **Scope of**  **This Rulemaking**
With regard to the commente rs discussing distillation to purify water and air pollution, neither the proposed rule nor the final rule include requirements related to treatment technology or air quality, thus these issues are outside the scope of this rulemaking.

With regard to the c ommenters requesting federal WQS be promulgated for Indian Country, neither the proposed rule nor the final rule establish WQS that apply to specific waters, thus this issue is outside the scope of this rulemaking.

With regard to the comments related to st ates ’ and authorized tribes ’ actual WQS and/or alleged failure to appropriate update and revise their WQS, such comments are outside the scope of this rulemaking.

With regard to the commenters suggesting that EPA revise timeframe inconsistencies in section 131.21, the proposed rule did not contemplate revisions on this topic, and the final rule does not contain changes on this topic

. Commenters correctly pointed out that section 131.21(a) describes how EPA must approve WQS submissions within 60 days or disa pprove within 90 days, while section 131.21(c) states that WQS modified after May 30, 2000 are only applicable for CWA purposes after EPA has approved them. In response to the commenters ’ question of if the WQS have been submitted to EPA but EPA has
not ac ted to approve or disapprove within 60 days or 90 days, respectively, are the WQS applicable for CWA purposes or not, EPA ’ s response is that the answer is in section 131.21(c): if EPA has not acted to approve the WQS, they are not applicable for CWA purpos es. Commenters were concerned that since EPA often takes longer than 60 to 90 days to act, in those cases state and authorized tribal WQS are in an uncertain position, and states are often held to their currently adopted rules even though they are not appl icable for CWA purposes. Commenters requested that EPA revise section 131.21(c) to be consistent with the timeframes outlined in section 131.21(a). Commenters did not suggest how this would be done, but one possible way could be to revise section 131.21(c) to allow default approval if EPA fails to take action within the timeframes described in section 131.21(a). EPA acknowledges the
commenters ’ concerns regarding the timeliness of EPA ’ s approval action. However, the concept of a default approval of state or authorized tribal WQS submissions is not consistent with section 303 of the CWA. Section 303(c)(3) requires EPA to make an affirmative finding that standards revisions submitted to EPA are consistent with the CWA. EPA has responsibility to determine that state and authorized triba l standards revisions are protective of human health and the environment. EPA must explain its approval actions; such actions are judicially reviewable. Any type of default approval approach would result in approval actions that EPA could not justify or explain. Similarly, EPA rejects any type of default disapproval approach. Disapprovals trigger other CWA requirements for the state or authorized tribe to rectify the disapproval and for EPA to act if the state or authorized tribe t akes no action to revise theChapter 3 – Response Essays 14.b – Miscellaneous

disapproved standards. Triggering these actions by a ‘‘ default ’’ disapproval would cause much more confusion than any type of potential delay on EPA ’ s part. EPA believes that section 303(c) of the CWA requires it to make an aff irmati ve finding on whether or not a s tate or authorized t ribal standard is consistent with the CWA. The commenters advocating default approaches did so out of concern about EPA ’ s ability to make timely WQS approvals. EPA points out that EPA can always par tition state or authorized tribe submissions and approve the unquestionable portions while continuing to address any contested or difficult issues. For a fuller discussion of why EPA promulgated section 131.21(c) to exist alongside section 131.21(a), pleas e see the preamble to the “ Alaska Rule ” at Title 65 of the Code of Federal Regulations ( CFR ) 24646

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With regard to the commenters identifying specific types of waters that should be interpreted as

‘ navigable waters ’ under the CWA, neither the proposed rule nor the final rule contemplated defining or interpreting ‘ navigable waters, ’ thus this issue is outside the scope of this rulemaking. See http://www2.epa.gov/clean waterrule

. EPA disagrees with the comment suggesting adding water quality trading to section 131.13 , the section on general policies regarding application and implementation that states and authorized tribes can include in their WQS at their discretion and over which EPA has 303(c) authority if such policies constitute WQS . W ater quality trading is not a component of WQS. Rather, water quality trading is an innovative approach to achieve water quality goals more efficiently. It can be a means of implementing WQS, but it is not a WQS per se. For more information on water quality trading, see EPA ’ s water quality trading website at http://water.epa.gov/type/watersheds/tradi ng.cfm

. For more information on what constitutes a new or revised WQS, see EPA ’ s Frequently Asked Questions ( FAQ s) on What is a New or Revised Water Quality Standard under CWA 303(c)(3) at http://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm

.Chapter 3 – Response Essays 14.c – Cover Letter



## Essay **14 .c –**  **Cover Letter**

The U.S. Environmental Protection Agency ( EPA ) appreciates the comments submitted on the Water Quality Standards Regulatory Clarifications; Proposed Rule

. Comm ent excerpts included in this C over Letter issue category pertain to supplementary/introductory information provided by commenters regarding personal or organizational background information. These comments do not provide information, criticism, or suggest ions pertaining to any elements contained in EPA ’ s proposed rule. As such , they are not considered to be substantive or significant comments on the proposed rule itself and therefore, do not require responses. To the degree that any of these comments can be considered substantive, see EPA’s response for comment codes 1.a (General Support) and 1.b (General Opposition).Chapter 3 – Response Essays 14.d – Additional Data



## Essay **14 .d –**  **Additional Data**

Comments listed in this category include additional references, supplementary information and attached documents associated with primary comment letters submitted to the U.S. Environmental Protection Agency ( EPA )

. EPA interpreted the referenced information a s supporting information (e.g., articles, memoranda , and reports).

For s ome comments listed in this category
, the commenters did not provide any substantive explanation of the pertinence of the cited references and/or attached additional information. During EPA's review of this information, the Agency could not provide a response because there was insufficient con text or guidance o n how it should consider the information. Where a comment directed EPA to consider additional information in a specific way or indicated that EPA should consider a specific reference , EPA has provided a response

. Such response s, related t o the documents attached by the commenters or the specific references
, are embedded in the response s to the associated comments

. In addition, where comments relate to input provided following the 2010 Listening Sessions, EPA considered the input on the listening sessions in the development of the final rule. See the preamble to the final rule, in addition to responses to comments , for EPA’s rationale regarding the final rule

.
All comment documents included in this category were individually reviewed and, as appropriate, cross

referenced to the context and topic where these documents were cited or referenced by the
commenters. See response Essay 1.a related to support for the rulemaking; response Essay 2.c related to comments on the history of the water quality standards ( WQ S) regulation and program; response Essay 4.b related to comments on Administrator’s determination; response Essays 5.a and 5.j related to comments on designated uses ; and response Essays 7.e.ii, 7.f.i, 7.g.iii, 7.i and 7.l related to co mments on antidegradation . Where the commenter attached a copy of another organization’s/individual’s comment letter as reference, see responses to the original submission of the referenced letter.