CHAPTER 3 

Issue Category: Miscellaneous

Pages 3-455 – 3-460 

Response to Public Comments

Water Quality Standard Regulatory Revisions

August, 2015

40 CFR Part 131

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

This document is part of a larger document.
Chapter 3 – Response Essays 14.a – Background 

Essay 14.a – Background of Commenter/Organization

A. General

The U.S. Environmental Protection Agency (EPA) appreciates the comments submitted on this 

rulemaking, and acknowledges the examples of state and authorized tribal water quality standards 

(WQS) included by commenters. Comment excerpts included in this BACKGROUND issue category 

pertain to supplementary/introductory information provided by commenters regarding personal or 

organizational background information. These comments do not provide information, criticism, or 

suggestions pertaining to any elements contained in EPA's proposed rule. As such, they are not 

considered to be substantive or significant comments on the proposed rule itself and, therefore, do not 

require responses. With regard to the commenters that indicate their letters contain specific comments 

on the proposed rule, see the relevant essays of this comment response document for responses to the 

substantive comment excerpts.

For information and discussion about the final regulatory requirements, see the discussion in the 

preamble to the final rule, as well as the final rule requirements.

B. Other

With regard to the comments expressing general opposition to the proposed rule, see EPA’s response in 

code 1.b.

With regard to the comments related to the length of the public comment period on the proposed rule, 

see EPA’s response in code 2.a.

With regard to the comments related to the public participation conducted on this rulemaking, see 

EPA’s response in code 2.d.

With regard to the comments related to states’ and authorized tribes’ primary role to set WQS, see 

EPA’s response in code 3.a.

With regard to the comments expressing general opposition to antidegradation, see EPA’s response to 

code 7.b.

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

12.a.

With regard to the commenter indicating that they would submit comments within 30 days of the 

January 2, 2014 deadline, EPA notes that such comments would have been out of time, and that, in any 

event, no comments were received. See also document EPA-HQ-OW-2010-0606-0285 in the docket for 

today’s rule for an email chain confirming that no comments were submitted by this commenter.

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Chapter 3 – Response Essays 14.b – Miscellaneous 

Essay 14.b – Miscellaneous and Out of Scope

A. General

The U.S. Environmental Protection Agency (EPA) appreciates the comments submitted on this 

rulemaking, and acknowledges the examples of state and authorized tribal water quality standards 

(WQS) included by commenters. See also the final rule requirements, as well as the discussion in the 

preamble to the final rule. Some comment excerpts included in this Miscellaneous issue category do not 

provide information, criticism, or suggestions pertaining to any elements contained in EPA’s proposed 

rule. As such, they are not considered to be substantive or significant comments on the proposed rule 

itself and, therefore, do not require responses.

Some commenters suggested that EPA provide states and authorized tribes proper training and funding 

to comply with the final rule. EPA is not increasing funding through this rulemaking, but this rulemaking 

does not affect existing funding, such as that under Clean Water Act (CWA) section 106, which is always 

subject to increase or decrease, as appropriate. EPA agrees with commenters that states, tribes, 

stakeholders and the public need proper training related to the requirements in the final rule. Following 

publication of the final rule, EPA intends to update its guidance to reflect the requirements of the final 

rule and to conduct outreach (e.g., public webinars) to discuss the final rule.

B. Other

With regard to the comments related to states’ and authorized tribes’ primary role to set WQS, see 

EPA’s response in code 3.a.

With regard to the comments suggesting a website containing all of EPA’s CWA section 304(a) criteria 

recommendations, see http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm. 

With regard to commenters suggesting that EPA add reference to antidegradation policies in section

131.3(i), the definition of WQS, see EPA’s response to code 7.m – Antidegradation: EPA’s Legal Authority

for discussion on EPA’s position that antidegradation requirements are WQS. 

With regard to the comments related to EPA’s trust responsibilities, EPA acknowledges the United 

States’ government-to-government relationship with and trust responsibility to federally recognized 

Indian tribes, and that EPA must ensure its actions do not conflict with tribal treaty rights. The Agency 

remains fully committed to engaging tribes as sovereign governments with a right to self-governance. 

See also EPA’s response in code 5.e. 

Some commenters suggested that EPA consider the compounding financial impacts of all recent rules on 

communities, including the residential sewer rates increasing as a result of “federal ammonia limits.” 

EPA notes that the “federal ammonia limits” that the commenter referred to are not, in fact, mandatory 

federal limits, but instead are EPA’s CWA section 304(a) criteria recommendations for ammonia, which 

are guidance to states and authorized tribes. EPA’s economic analysis (EA) for this rule focuses on the 

potential administrative burden and cost to all 50 states, the District of Columbia, five territories, the 

40 authorized tribes with EPA-approved WQS, and to EPA. While this rule does not establish any 

requirements directly applicable to regulated point sources or nonpoint sources (NPS) of pollutants or 

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Chapter 3 – Response Essays 14.b – Miscellaneous 

pollution, EPA acknowledges that this rule may result in indirect costs to some regulated entities as a 

result of changes to WQS that states and authorized tribes adopt based on today’s final rule. EPA is 

unable to quantify indirect costs and benefits since it cannot anticipate precisely how the rule will be 

implemented by states and authorized tribes and because of a lack of data. See EPA’s Economic Analysis 

for the Water Quality Standards Regulatory Revisions (Final Rule) and EPA’s response to code 12.a. See 

also EPA’s response to code 6.g for discussion related to states’ and authorized tribes’ discretion related 

to CWA section 304(a) criteria recommendations, which are EPA guidance. EPA notes that the final rule 

includes revisions related to CWA tools where economic factors can be considered (e.g., WQS 

variances). See also EPA’s economic guidance and tools to evaluation economic impact at

http://water.epa.gov/scitech/swguidance/standards/economics/index.cfm. 

C. Comments That Are outside the Scope of This Rulemaking

With regard to the commenters discussing distillation to purify water and air pollution, neither the 

proposed rule nor the final rule include requirements related to treatment technology or air quality, 

thus these issues are outside the scope of this rulemaking.

With regard to the commenters requesting federal WQS be promulgated for Indian Country, neither the 

proposed rule nor the final rule establish WQS that apply to specific waters, thus this issue is outside the 

scope of this rulemaking.

With regard to the comments related to states’ and authorized tribes’ actual WQS and/or alleged failure 

to appropriate update and revise their WQS, such comments are outside the scope of this rulemaking.

With regard to the commenters suggesting that EPA revise timeframe inconsistencies in section 131.21, 

the proposed rule did not contemplate revisions on this topic, and the final rule does not contain 

changes on this topic. Commenters correctly pointed out that section 131.21(a) describes how EPA must 

approve WQS submissions within 60 days or disapprove within 90 days, while section 131.21(c) states 

that WQS modified after May 30, 2000 are only applicable for CWA purposes after EPA has approved 

them. In response to the commenters’ question of if the WQS have been submitted to EPA but EPA has 

not acted to approve or disapprove within 60 days or 90 days, respectively, are the WQS applicable for 

CWA purposes or not, EPA’s response is that the answer is in section 131.21(c): if EPA has not acted to 

approve the WQS, they are not applicable for CWA purposes. Commenters were concerned that since 

EPA often takes longer than 60 to 90 days to act, in those cases state and authorized tribal WQS are in 

an uncertain position, and states are often held to their currently adopted rules even though they are 

not applicable for CWA purposes. Commenters requested that EPA revise section 131.21(c) to be 

consistent with the timeframes outlined in section 131.21(a). Commenters did not suggest how this 

would be done, but one possible way could be to revise section 131.21(c) to allow default approval if 

EPA fails to take action within the timeframes described in section 131.21(a). EPA acknowledges the 

commenters’ concerns regarding the timeliness of EPA’s approval action. However, the concept of a 

default approval of state or authorized tribal WQS submissions is not consistent with section 303 of the 

CWA. Section 303(c)(3) requires EPA to make an affirmative finding that standards revisions submitted 

to EPA are consistent with the CWA. EPA has responsibility to determine that state and authorized tribal 

standards revisions are protective of human health and the environment. EPA must explain its approval 

actions; such actions are judicially reviewable. Any type of default approval approach would result in 

approval actions that EPA could not justify or explain. Similarly, EPA rejects any type of default 

disapproval approach. Disapprovals trigger other CWA requirements for the state or authorized tribe to 

rectify the disapproval and for EPA to act if the state or authorized tribe takes no action to revise the 

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Chapter 3 – Response Essays 14.b – Miscellaneous 

disapproved standards. Triggering these actions by a ‘‘default’’ disapproval would cause much more 

confusion than any type of potential delay on EPA’s part. EPA believes that section 303(c) of the CWA 

requires it to make an affirmative finding on whether or not a state or authorized tribal standard is 

consistent with the CWA. The commenters advocating default approaches did so out of concern about 

EPA’s ability to make timely WQS approvals. EPA points out that EPA can always partition state or 

authorized tribe submissions and approve the unquestionable portions while continuing to address any 

contested or difficult issues. For a fuller discussion of why EPA promulgated section 131.21(c) to exist 

alongside section 131.21(a), please see the preamble to the “Alaska Rule” at Title 65 of the Code of 

Federal Regulations (CFR) 24646-47 (April 27, 2000). 

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

‘navigable waters’ under the CWA, neither the proposed rule nor the final rule contemplated defining or 

interpreting ‘navigable waters,’ thus this issue is outside the scope of this rulemaking. See 

http://www2.epa.gov/cleanwaterrule. 

EPA disagrees with the comment suggesting adding water quality trading to section 131.13, the section 

on general policies regarding application and implementation that states and authorized tribes can 

include in their WQS at their discretion and over which EPA has 303(c) authority if such policies 

constitute WQS. Water quality trading is not a component of WQS. Rather, water quality trading is an 

innovative approach to achieve water quality goals more efficiently. It can be a means of implementing 

WQS, but it is not a WQS per se. For more information on water quality trading, see EPA’s water quality 

trading website at http://water.epa.gov/type/watersheds/trading.cfm. For more information on what 

constitutes a new or revised WQS, see EPA’s Frequently Asked Questions (FAQs) on What is a New or 

Revised Water Quality Standard under CWA 303(c)(3) at 

http://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm. 

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Chapter 3 – Response Essays 14.c – Cover Letter

Essay 14.c – Cover Letter

The U.S. Environmental Protection Agency (EPA) appreciates the comments submitted on the Water 

Quality Standards Regulatory Clarifications; Proposed Rule. Comment excerpts included in this Cover 

Letter issue category pertain to supplementary/introductory information provided by commenters 

regarding personal or organizational background information. These comments do not provide 

information, criticism, or suggestions pertaining to any elements contained in EPA’s proposed rule. As 

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

therefore, do not require responses. To the degree that any of these comments can be considered 

substantive, see EPA’s response for comment codes 1.a (General Support) and 1.b (General Opposition).

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Chapter 3 – Response Essays 14.d – Additional Data 

Essay 14.d – Additional Data

Comments listed in this category include additional references, supplementary information and

attached documents associated with primary comment letters submitted to the U.S. Environmental 

Protection Agency (EPA). EPA interpreted the referenced information as supporting information 

(e.g., articles, memoranda, and reports).

For some comments listed in this category, the commenters did not provide any substantive explanation 

of the pertinence of the cited references and/or attached additional information. During EPA's review of 

this information, the Agency could not provide a response because there was insufficient context or 

guidance on how it should consider the information. Where a comment directed EPA to consider 

additional information in a specific way or indicated that EPA should consider a specific reference, EPA 

has provided a response. Such responses, related to the documents attached by the commenters or the 

specific references, are embedded in the responses to the associated comments. In addition, where 

comments relate to input provided following the 2010 Listening Sessions, EPA considered the input on 

the listening sessions in the development of the final rule. See the preamble to the final rule, in addition 

to responses to comments, for EPA’s rationale regarding the final rule. 

All comment documents included in this category were individually reviewed and, as appropriate, crossreferenced to the context and topic where these documents were cited or referenced by the 

commenters. See response Essay 1.a related to support for the rulemaking; response Essay 2.c related 

to comments on the history of the water quality standards (WQS) regulation and program; response 

Essay 4.b related to comments on Administrator’s determination; response Essays 5.a and 5.j related to 

comments on designated uses; and response Essays 7.e.ii, 7.f.i, 7.g.iii, 7.i and 7.l related to comments on 

antidegradation. Where the commenter attached a copy of another organization’s/individual’s 

comment letter as reference, see responses to the original submission of the referenced letter.

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