# CHAPTER 3

Issue Category: Other Changes

Pages 3- 428 – 3- 432

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 10.a – Other Changes



## Essay **10 .a – O**  **ther Changes to the Rule** 

The U.S. Environmental Protection Agency ( EPA ) acknowledges the commenter s that expressed general support for EPA’s proposed changes.



### A. Revision to **Title 40**  **of the** Code of Federal Regulations **Section 131.2** 

Some commenters suggested that EPA’s proposed removal of the word “necessary” from section 131.2 could lead to states and tribes being required or encouraged to adopt overly stringent or unnecessary criteria. With regard to these commenters, EPA disagrees. EPA finalized the revisions to section 131.2 as proposed. This revision is important to make the language in section 131.2 and section 131.11
consistent and to alleviate any i nconsis tent interpretations between these two sections (e.g., that

section 131.2 requires adoption of criteria sufficiently stringent to protect the designated use but no more stringent than that, while section 131.11 does not require such precision but rather re quires criteria that are protective of the designated use, whether just barely protective or “overly” protective (e.g., with a larger margin of error or similar )

. Section 131.11(a) already includes that states and authorized tribes “must adopt those water quality criteria that protect the designated use.” It is not
EPA’s intent to use this revision to section 131.2 to require or encourage states and authorized tribe s to adopt criteria that are not necessary to protect their designated uses or to force or encourage states or authorized tribes to adopt overly stringent criteria. As required by section 131 .11(a), states and authorized tribes continue to be required to a dopt criteria that are based on sound scientific rationale for sufficient parameters or constituents to protect the designated use. EPA notes that , consistent with Clean Water Act ( CWA ) section 510, and/or pursuant to their own inherent authority in the ca se of
authorized tribes

, states and authorized tribes may adopt standards that are more stringent than minimally required by the CWA , but that is not a result of removing “necessary” from section 131.2. See City of Albuquerque v. Browner , 97 F.3d 415, 421

- 23 (10 th Cir. 1996)(regarding inherent tribal sovereignty to adopt water quality standards ( WQS ) more stringent than minimum CWA requirements)

. See als o EPA’s response to code 3.a – EPA’s L egal Authority: General Comments concerning state primacy in the WQS program.

One commenter suggested that EPA further revise section 131.2 to use language directly from CWA section 303(c)(2)(A), “based up on such uses.” EPA disagrees. Incorporating “based on such uses” into

section 131.2 c ould result in ambiguity in the regulation (and how it relates to section 131.11) and c ould fail to recognize the additional context for the meaning of “such uses” provided in the second sentence of CWA section 303(c)(2)(A). The second sentence reads: “Such revised or new water quality standard shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.” EPA proposed and is finalizing today a rule that include s the more precise language “designated uses” to en sure there is no confusion that it refers to the CWA

- effective designated uses applicable to the waters at issue and not the complete list of uses in CWA section 303(c)(2)(A) (although there will very likely be some overlap between those two sets of uses ).

With regard to the commenters requesting clarification on the relationship between existing uses and designated uses, see EPA’s response to code 5.d – Designated Uses : Existing Uses.Chapter 3 – Response Essays 10.a – Other Changes

Several commenter s suggested that EPA further revise section 131.2 to in clude antidegradation requirements. The commenters provided different wording, but all with the same purpose. One commenter provided a slightly narrower edit requesting that EPA add reference to protecting and maintaining existing instream water uses (e.g. , Tier 1 of antidegradation) . EPA did not propose or finalize
a revision to add reference to antidegradation requirements, existing uses or Tier 1 protections , or descriptions to further explain the meaning of designated uses, criteria, and antidegradation requirements in section 131.2

. EPA did not make such revisions to section 131.2 because the previously existing regulations at section 131.6(d) include an antidegradation policy as a minimum requirement for
WQS submissions and Subpart B of Title 40 of the Code of Federal Regulations ( CFR ) Part 131 (Establishment of Water Quality Standards) explicitly includes antidegradation policies

. In addition, EPA concluded it was not necessary to revise section 131.2 because of the revisions to section 131.5(a)( 3)

, which clarify EPA’s authority to review and approve or disapprove whether a state ( or authorized tribe ) has adopted an antidegradation policy consistent with section 131.12 and whether any adopted antidegradation implementation method s are consistent w ith section 131.12.

See also EPA’s response to similar suggestion for section 131.3(i) below , under, subheading E - Other

. See also EPA’s response to code 7.m – Antidegradation : EPA’s Legal Authority for additional discussion on EPA’s position that antidegradation requirements are WQS



### B. Revision to **Title 40**  **of the** Code of Federal Regulations **Section 131.5(a)(2)** 

EPA agrees with commenters who suggested add ing a citation for section 131.11 into section 131.5(a)(2) in addition to the proposed edit to add “sound scientific rationale” to make sure there is consistency between these provisions. EPA added the citation in the final rule. Another commenter suggested replacing “sound scientific rationale” with “consistent with § 131.11.” EPA agrees in part. T he final rule
adds additional language and makes clear that “sound scientific rationale” is linked to the requirements
of section 131.11. By linking the two regulatory sections, the final rule is clear that this provision does not contradict the requirements and flexibilities provided in section 131.11.

Some commenters suggested that EPA is seeking to expand its authority to review criteria by adding
“sound scientific rationale .” Other commenters expressed co ncern with the proposed change to section 131.5(a)(2) because “sound scientific rationale” is an ambiguous and subjective point of reference , and some commenters suggested replacing “sound scientific rationale” with “best available technology” (BAT) or “be st available science.” EPA disagrees with each of the aforementioned suggestions

. The term in question, “sound scientific rationale,” is currently used and understood in the criteria section of the WQS regulation at section 131.11 (and has been since it was promulgated in 1983), thus EPA sees no need to change it to “best available science .” The term “best available technology economically
achievable ” is a legal term of art that has specific meaning related to the technology

- based requirements under CWA section 304(b) and implementing regulations and is not appropriate in the WQS context. By adding a direct citation to section 131.11 in section 131.5(a)(2), the final rule makes it clear that EPA is not increasing or decreasing the b urden of proof for states and authorized tribes, but is
rather pointing to the very same analysis that currently exists in the relevant criteria section. For the same reasons, EPA also disagrees that inclusion of “sound scientific rationale” is an expansio n of its review authority as referenced in section 131.5(a)(4), section 131.6(b) or section 131.6(f).

One commenter suggested that the proposed change to section 131.5(a)(2) may interfere with the ability of states and authorized tribes to use narrative criteria. EPA disagrees. As stated above, t his
revision does not create a new or different level of required protection or change the stringency ofChapter 3 – Response Essays 10.a – Other Changes

requirements for states and authorized tribes with respect to criteria. States and authorized tribes

continue to have the discretion to establish narrative criteria as described in section 131.11(b)(2) , as long as such criteria are protective of applicable designated uses and based on sound scientific rationale

.

EPA disagrees with a commenter that question ed wheth er there is sufficient consistency between

section 13 1.5 and section 131.6

. EPA disagrees that the minor wording differences (e.g., “use designations” vs. “designated water uses”) cause confusion. EPA has not encountered confusion from
states and authorized tribes over this point in the past and did not receive many comments on it

. EPA agrees with the commenter that it is important that the final changes to the section 13 1.5 be consistent
with section 131.6 and with the other parts of section 131. T he final rule requirements section 13 1.5 are
consistent with section 131.6 and with the other parts of the rule. EPA notes that section 131.5 and

section 131.6 are different and distinct sections, which is why although they are consistent, the y are not identical

. In section 131.6, the regulation outlines the minimum elements that are required to be included in a state or authorized tribal WQS submission. In section 13 1.5, the regulation outlines EPA’s authority to review and to approve or disapprove WQS. T he sections are necessarily different because of their different functions. For example, section 131.6 requires that states and authorized tribes submit methods and analyses as supporting documentation along with their WQS submission. This is required

so t hat EPA will be able to evaluate the basis for the new or revised WQS. However, section 131.5 does not discuss supporting documentation, because EPA does not have authority to act on it under CWA 303(c). Because each of these sections serves a different pu rpose, it is important that each is independently clear. This is also the reason that EPA disagrees with the commenter that the two
sections should be combined.

One commenter suggested that EPA revise section 131.5(a)(2) (which describes what EPA’s review involves a determination of) to refer to whether a State has adopted criteria that protect the designated uses “that are supported by a” sound scientific rationale, rather than “based on” a sound scientific
rationale

. EPA disagrees with the commenter’s sug gestion and did not make this change in the final rule. The regulation at section 131.6(b) requires that states and tribes m ust submit methods and analyses, which would include their sound scientific rationales, to support their WQS revisions. EPA does not view the term “supported by a sound scientific rationale” as providing EPA a different basis for approval than the phrase “based on a sound scientific rationale.” Therefore, EPA views the commenter’s suggested change as unnecessary.



### C. Revision to **Title 40**  **of the** Code of Federal Regulations **Section 131.5(a)(3)** 

With regard to the commenter suggesting that section 131.5(a)(3) is too vague and questioning what elements a State’s antidegradation policy must include to be consistent with section 131.12(a), see EPA’s response to 7.f.i – Antideg radation Implementation Methods: Transparency and Adoption.



### D. Revision to **Title 40**  **of the** Code of Federal Regulations **Section 131.12(a)(2)** 

Some commenters suggested that “assure” and “ensure” are synonyms and requested EPA not finalize the proposed change to section 131.12(a)(2). Other commenters suggested that the term “ensure” would impose a higher burden of proof on states and authorized tribes as they would need to guarantee an outcome of water quality. One commenter suggested replacement of “ensure” with “specify” to
address similar concerns. EPA further explored the meaning of both words , and today’s final rule retains the existing regulation’s language using “assure” in section 131.12(a)(2). While EPA found that both “assure” and “ensure” mean “to make sure” and in some cases may be used interchangeably, EPA alsoChapter 3 – Response Essays 10.a – Other Changes

recognizes that context surrounding the word is important. While “ensure” is used in another section of the WQS regulation (see section 131.10(b)), that secti on is related to ensuring state or authorized tribal
WQS set standards to address a specific issue (i.e., downstream protection) . In this context, the states and authorized tribes have control of setting their standards and can “make sure” those WQS meet t he regulatory requirements. In the case of section 131.12(a)(2), the section is addressing water quality, not
WQS. While states and authorized tribes have control over setting their WQS, they do not have the same control over the resulting water quality, s o “ensure” would not be appropriate in the section 131.12(a) context. Thus, EPA found that it is appropriate to use “assure” in section 131.12(a)(2).

Some commenters suggested that EPA’s use of the term “ensure” would lead to litigation related to
states’ and authorized tribes’ analysis of alternatives. Today’ final rule does not finalize use of the term
“ensure” and retains the use of “assure.” In response to comments related to a state’s discretion regarding the analysis of alternatives, see EPA’s respons e to code 3.a – EPA’s Legal Authority: General

Comments. See also EPA’s response to codes 7.e.ii – Antidegradation Alternatives Analysis : General Opposition for Proposed Revision

, 7.e.iii – Antidegradation Alternatives Analysis : Suggested Alternatives
That Should/Shouldn’t Be Considered, and 7.e.iv – Antidegradation Alternatives Analysis: Selecting an
Alternative.

With regard to inserting “the protection and” before the phrase “propagation of fish, shellfish and
wildlife” in section 131.12(a)(2), one commenter suggested this insertion was unnecessary because if a species is propagating, then it is inherently being protected at a sustainable level. The commenter also expressed concern that this change add s a new level of protection tha n expected previously. EPA disagrees that inserting “the protection and” is unnecessary and adds a new level of protection. The entire phrase “the protection and propagation of fish, shellfish, and wildlife and provides for the
recreation. . .” comes direc tly from section 101(a)(2) of the CWA and EPA finalize d the proposed change
to make section 131.12(a)(2) consistent with CWA section 101(a)(2) and the rest of the WQS regulation

, as well as the CWA. In other words, this has been a requirement of the CWA since at least 1983, and arguably 1972, and EPA is only making this change to make the various provisions consistent with each other re this language

.

See also EPA’s response to code 12.c – Economics : EPA’s Burden and Costs in response to comments on the “unacceptable burden” imposed by the proposed edits.



### E **. Other**

With regard to the commenter suggesting language related to section 131.3(m), see EPA’s response to
code s 5.e – Designated Uses: Definitions /Terms

, 8.g.ii – Variance Submission Requirements : Numeric Interim Requirements, and 8.c – Variances: Proposed Definition regarding the definition of highest
attainable use (HAU) and the meaning of highest attainable condition (HAC) and protection of exist ing

uses

.

One commenter suggested that EPA add reference to States’ antidegradation policy in section 131.3(i),
the definition of WQS and references section 130.7(b)

. EPA did not propose or finalize a revision in

section 131.3(i) because EPA concluded it w as not necessary considering the revisions to section 131.5(a)(3) and the existence of provisions that are already explicit to antidegradation in section 131.6
and section 131.12.Chapter 3 – Response Essays 10.a – Other Changes

See also EPA’s response to code 7.g.iii – Antidegradation : Suggested Changes/ Revisions to Minimum
Elements for a discussion regarding antidegradation and CWA section 303(d) and EPA’s response to
code 7.m – Antidegradation : EPA’s Legal Authority for discussion on EPA’s position that antidegradation requirements are WQS

.

One commenter suggested that EPA remove the sentence referring to s tates’ continuing planning process (CPP) from section 131.20(a). EPA disagrees. EPA did not propose or finalize removal of this

sentence in section 131.20(a) because CPPs can be a valuable WQS planning tool and where the state’s CPP is binding and the requirements are WQS , EPA has the duty and authority to act on them under CWA section 303(c). 1

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