# CHAPTER 2 Issue Category: Administrator’s Determination Pages 2-1 46– 2- 229

Response to Public Comments Water Quality Standard s Regulatory Revisions

August 2015

40 CFR Pa rt 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.

08/04/2015 05:01 PM EDT 2-146Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-147Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-150Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-152Chapter 2 - Comment Documents Administrator’s Determination 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. 1.0Administrator'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

08/04/2015 05:01 PM EDT 2-153Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-155Chapter 2 - Comment Documents Administrator’s Determination 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.

08/04/2015 05:01 PM EDT 2-161Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-162Chapter 2 - Comment Documents Administrator’s Determination 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.

08/04/2015 05:01 PM EDT 2-163Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-164Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-165Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-167Chapter 2 - Comment Documents Administrator’s Determination 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)

08/04/2015 05:01 PM EDT 2-168Chapter 2 - Comment Documents Administrator’s Determination 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:

08/04/2015 05:01 PM EDT 2-169Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-170Chapter 2 - Comment Documents Administrator’s Determination
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."

08/04/2015 05:01 PM EDT 2-171Chapter 2 - Comment Documents Administrator’s Determination

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

08/04/2015 05:01 PM EDT 2-172Chapter 2 - Comment Documents Administrator’s Determination 

# 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.

08/04/2015 05:01 PM EDT 2-1734.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

08/04/2015 05:01 PM EDT 2-174Chapter 2 - Comment Documents Administrator’s Determination 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.

08/04/2015 05:01 PM EDT 2-175Chapter 2 - Comment Documents Administrator’s Determination

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

08/04/2015 05:01 PM EDT 2-176Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-177Chapter 2 - Comment Documents Administrator’s Determination
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

08/04/2015 05:01 PM EDT 2-178Chapter 2 - Comment Documents Administrator’s Determination
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

08/04/2015 05:01 PM EDT 2-179Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-180Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-181Chapter 2 - Comment Documents Administrator’s Determination 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 topromulgate 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

08/04/2015 05:01 PM EDT 2-182Chapter 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

08/04/2015 05:01 PM EDT 2-183Chapter 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 2-184Chapter 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

08/04/2015 05:01 PM EDT 2-185Chapter 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 2-1864.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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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/fish
08/04/2015 05:01 PM EDT 2-188Chapter 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 2-189Chapter 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

08/04/2015 05:01 PM EDT 2-191Chapter 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 2-192related 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-cv
00324 (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

08/04/2015 05:01 PM EDT 2-194Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-195Chapter 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.

08/04/2015 05:01 PM EDT 2-196Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-197Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-198Chapter 2 - Comment Documents Administrator’s Determination
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

08/04/2015 05:01 PM EDT 2-199Chapter 2 - Comment Documents Administrator’s Determination
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

08/04/2015 05:01 PM EDT 2-200Chapter 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

08/04/2015 05:01 PM EDT 2-201Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-202Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-203Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-204Chapter 2 - Comment Documents Administrator’s Determination
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 2-205Chapter 2 - Comment Documents Administrator’s Determination
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

08/04/2015 05:01 PM EDT 2-206Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-207Region 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

08/04/2015 05:01 PM EDT 2-208Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-209Chapter 2 - Comment Documents Administrator’s Determination 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.

08/04/2015 05:01 PM EDT 2-210Chapter 2 - Comment Documents Administrator’s Determination 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).

08/04/2015 05:01 PM EDT 2-211Chapter 2 - Comment Documents Administrator’s Determination [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.

08/04/2015 05:01 PM EDT 2-212Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-213Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-214Chapter 2 - Comment Documents Administrator’s Determination 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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# 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-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 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'

08/04/2015 05:01 PM EDT 2-218Chapter 2 - Comment Documents Administrator’s Determination 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

08/04/2015 05:01 PM EDT 2-220Chapter 2 - Comment Documents Administrator’s Determination 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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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

08/04/2015 05:01 PM EDT 2-222Chapter 2 - Comment Documents Administrator’s Determination 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:

08/04/2015 05:01 PM EDT 2-223Chapter 2 - Comment Documents Administrator’s Determination § 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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# 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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