# CHAPTER 2 Issue Category: Legal Authority Pages 2- 110 – 2- 145

Response to Public Comments Water Quality Standard s Regulatory Revisions

August 2015

40 CFR Part 131 Docket #: EPA - HQ - OW - 2010 - 0606

This document is part of a larger document .Chapter 2 - Comment Documents Legal Authority 

# 3 - LEGAL AUTHORITY No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.


# 3.A - LEGAL - OTHER GENERAL Comment ID 0115.001.001
Author Name: Commenter Anonymous Organization: NA GOP accuses EPA of 'unprecedented' power grab with proposed water rule. This needs to be stopped. This is overreaching your agencies duty description. Private Property is PRIVATE PROPERTY Bought and Paid for by private citizens and protected by our Rights. We are also protected against unlawful searches and seizure. This is an invasion of privacy and a violation of our civil rights. This is an injustice. It is also another waste of tax payer money. (FRAUD, WASTE and ABUSE) Fraud: Being pushed through without public notification through your agency to every American citizen. Backdooring the very people you will effect and the States which we live in. Waste: Waste of resources, manpower and tax payer money Abuse: Abuse of your powers and duties. Abuse of your position and office. This will have significant impact would have on the economy, property rights and state sovereignty. This is not within your duty description. This type of action is unnecessary. What gives the EPA the right to infringe upon rights of private property owners? What gives them the right to attempt to do so? What are you going to do to stop this? What gives the EPA the right to infringe upon state regulations and laws for their citizens? What gives the EPA the right to even attempt such a power grab? You should commit your resources to fixing and maintaining your existing laws and policies. NOT Attacking State Sovereignty and Citizens property rights.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section A 3.a: Section B 3.a: Section C 3.a: Section D

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# Comment ID 0119-A1.001.002
Author Name: Lemke Lee Organization: Georgia Mining Association Regulatory Approach GMA has significant concerns with EPA's approach in titling this rulemaking as "clarifications", as it appears the primary impact of the proposed changes are to increase the stringency of the Clean Water Act (CWA) and grant EPA new authority to second-guess decisions that were intended to be left to the States. Given that most interested groups or concerned citizens are unlikely to read the entirety of the Federal Register, EPA's approach in burying major regulatory changes in an action with a mundane administrative title such as "Regulatory Clarifications" implies an intent to shield this action from the intense public scrutiny it deserves. To afford this Proposed Rule an appropriate level of public participation, we believe EPA should withdraw this action and re-propose with a title that more accurately represents the scope and importance of the proposed changes, such as:

• Increasing Federal Power Over State/Tribal Clean Water Act Programs

• Overturning 30 Years of Successful Clean Water Act Implementation

• Reducing State/Tribal Discretion in Clean Water Act Program Implementation Going beyond the title of the Proposed Rule, much of the Preamble discussion reads more like a position paper biased toward the enhancement of EPA's power over the states to regulate their jurisdictional waters in conflict what we believe was Congressional intent (CWA §101(b)) that states retain primary responsibility and rights to plan the designated use of water resources. As a result, we believe the Proposed Rule should be withdrawn. In this regard, our comments are follows:
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section A 3.a: Section B 3.a: Section C 

# Comment ID 0131-A1.001.002
Author Name: Rager David

08/04/2015 05:01 PM EDT 2-111Chapter 2 - Comment Documents Legal Authority Organization: Sanitation District Number 1 of Northern Kentucky SD1 is concerned that EPA is proposing changes to the water quality standards rules that go beyond the authority provided under the Clean Water Act. As stated in Chapter 4 of EPA's Water Quality Standards Handbook: Second Edition (EPA-823-B-12-002; March 2012), "Antidegradation was explicitly incorporated in the CWA through:

• a 1987 amendment codified in section 303(d)(4)(B) requiring satisfaction of antidegradation requirements before making certain changes in NPDES permits; and

• the 1990 Great Lakes Critical Programs Act codified in CWA section 118(c)(2) requiring EPA to publish Great Lakes water quality guidance including antidegradation policies and implementation procedures." Section 303(d)(4)(B) states: "(B) STANDARD ATTAINED.-For waters identified under paragraph (1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable water quality standard, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section, or any water quality standard established under this section, or any other permitting standard may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section."
The Clean Water Act directs states to develop and adopt water quality standards, which would include antidegradation policies. Section 303(d) does not authorize EPA to adopt or require states to adopt antidegradation procedures that go beyond policies that existed in 1987. Had Congress so intended, it would have authorized such actions as it did with the Great Lakes in 1990. It does not provide express authority to EPA to require among other things, extensive alternatives analyses of non-degrading and minimally degrading practicable alternatives, without regard to the implementation costs. In fact, Section 303(d)(4) does not contain any language that could be construed as authorizing EPA to promulgate additional antidegradation requirements or protocols.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section A 3.a: Section D 7.m 

# Comment ID 0131-A1.001.010
Author Name: Rager David

08/04/2015 05:01 PM EDT 2-112Chapter 2 - Comment Documents Legal Authority Organization: Sanitation District Number 1 of Northern Kentucky Comment 3 - Language added at § 131.5(a)(3) is inconsistent with the Clean Water Act and should be removed. In this rulemaking, EPA is describing their "authority to review and approve or disapprove state-adopted or tribal-adopted antidegradation policies" (78 FR 54525). We note that the Clean Water Act mentions state antidegradation policies; it does not mandate that EPA review and approve those policies. It is interesting that in its public webinar #1 on the proposed rule (September 24, 2013), EPA added to the Clean Water Act's definition of water quality standards by including "[g]eneral policies addressing implementation issues" in the definition. SD1 does not believe that the water quality standards regulations should require states to incorporate antidegradation policies and implementation procedures into state water quality standards that are subject to EPA approval. Implementation of antidegradation policies should be left to the states. As such, we request that § 131.5(a)(3) be removed from the proposed regulation.

Response For response to this comment, see the following response essay(s): 3.a 3.a: Section D 7.f.i 7.g.i 7.g.ii 

# Comment ID 0134-A1.001.003
Author Name: Shea III Quinlan Organization: Edison Electric Institute Second, the proposed regulatory changes fail to embrace the fundamental principle under the CWA that the primary responsibility for establishing and implementing water quality standards rests with States.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 

# Comment ID 0145-A2.001.003

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Author Name: Shea III Quinlan Organization: Edison Electric Institute Second, the proposed regulatory changes fail to embrace the fundamental principle under the CWA that the primary responsibility for establishing and implementing water quality standards rests with States.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 

# Comment ID 0150-A1.001.003
Author Name: Heisig-Mitchell Jamie Organization: Hampton Roads Sanitation District The proposed modifications to the Water Quality Standards regulations are relatively limited in scope. This is appropriate given the fact that water quality standards are primarily a responsibility of the states as identified in the Clean Water Act (CWA). Maintaining these CWA responsibilities at the state level allows states to fashion standards and standards application programs in ways that work best for their waters. Therefore, HRSD encourages the Agency to avoid any significant broadening in the substance or scope of its proposal as a result of public comment. Specific comments follow in the order in which the Preamble presents them.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 

# Comment ID 0151-A1.001.002
Author Name: Tate Michael Organization: Kansas Department of Health and Environment We have no substantive comment on the proposed changes regarding 1) clarifying what constitutes an Administrator's

08/04/2015 05:01 PM EDT 2-114Chapter 2 - Comment Documents Legal Authority determination; 2) incorporating authorizing provisions for compliance schedules into the State's water quality standards regulation; and, 3) consideration of new or updated 304(a) criteria recommendations at the triennial review of our water quality standards, provided we retain the flexibility to consider those criteria viewed as high priority rather than a sweeping review of all criteria. We do have comments regarding the remaining three key areas described in the proposal. These comments will be presented by each topical area.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section D 4.a 6.g 9.a 

# Comment ID 0152-A1.001.003
Author Name: Stevens Bruce Organization: Indiana Coal Council, Inc. Overall, the proposed rule subjects many State decisions to EPA determinations or approvals that do not exist currently. We believe this is unnecessary and will only inhibit and delay State implementation of Clean Water Act regulatory processes.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section D 

# Comment ID 0152-A1.001.005
Author Name: Stevens Bruce Organization: Indiana Coal Council, Inc. In the event EPA proceeds with proposed changes, there must be an assurance that no infringement on the State

08/04/2015 05:01 PM EDT 2-115Chapter 2 - Comment Documents Legal Authority primacy setting water quality standards under the Clean Water Act occurs. Thank you for the opportunity to provide comment on this important matter.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 

# Comment ID 0157-A1.001.002
Author Name: Harpole Chad Organization: Kentucky Chamber of Commerce General Comments As EPA notes in the preamble to the Proposed Rule, the core of the current Water Quality Standards Regulations at 40 CFR Part 131 has been in place since 1983. The current standards provide general guidance to the states for developing Water Quality Standards as authorized by Section 303(c) of the Clean Water Act and for EPA review and approval of those standards. Congress intended for the states, not EPA, to have primary responsibility for establishment of Water Quality Standards to protect waterbodies within their jurisdictions through the designation of uses and the development of the criteria necessary to protect those uses. The determination of use and value of waters for "public water supplies, promulgation of fish and wildlife, recreation purposes, and agricultural, industrial, and other purposes, . . . taking into consideration their use and value for navigation" is inherently a state function. CWA Section 303(c)(2)(A). Indeed, Section 101(6) of the CWA recognizes Congress' policy to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan the development and use...of land and water resources..." The Chamber is concerned the Proposed Rule would significantly restrict a state's flexibility in designating uses and protecting those uses by dictating detailed and time consuming procedures and standards for establishing and implementing water quality standards programs through the NPDES and Section 401 water quality certification programs. This is especially true as set forth below with respect to the proposed changes to antidegradation policy and implementation requirements at 40 CFR 131.12. Thus, the Chamber believes that the Proposed Rule impermissibly infringes upon the states' rights and flexibility to manage and protect waterbodies and their uses within their jurisdictions.
Response For response to this comment, see the following response essay(s): 3.a

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3.a: Section B 

# Comment ID 0158-A1.001.004
Author Name: Goodmann Peter Organization: Kentucky Division of Water KDOW also believes the proposed regulation inappropriately expands the water quality standards program oversight by EPA to substantially overseeing States' implementation of their water quality standards programs. The preamble to the proposed WQS regulation, as well as EPA's public position in webinars and presentations on the proposed WQS regulation, paints a benign picture of the proposed rule as regulatory clarifications meant to improve implementation of the water quality standards program [78 FR 54521]. However, the proposed rule is in fact an alarming expansion of EPA's authority which usurps the inherent authority of States that is recognized, preserved, and protected by the Clean Water Act, to develop and implement their own water quality standards. The proposed WQS regulation establishes greater authority and oversight by EPA of States' water quality standards programs, including implementation of water quality standards and non-water quality standards programs. The proposed WQS regulation simultaneously reduces EPA's potential for litigation challenge regarding its approval of State water quality standards while establishing a low bar for potential litigants to challenge State decisions. It very much appears as if EPA is attempting to bring all State decision-making pursuant to State authority granted by the Act under the rubric of the "water quality standards program" and thus broaden greatly EPA's control of that decision-making. The proposed WQS regulation incorporates into the water quality standards review process issues such as antidegradation policy implementation, implementation of water quality standard variances, and the implementation of compliance schedules as a means to expand EPA's oversight and control of state decision making.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 3.a: Section D 7.m 8.b
8.m 9.e 

# Comment ID 0158-A1.001.007

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Author Name: Goodmann Peter Organization: Kentucky Division of Water EPA should reconsider the proposed WQS regulation before going forward, being careful to evaluate whether the proposed WQS regulation is necessary and whether EPA has authority under the Act to specify how states will develop and implement water quality standards, and which Clean Water Act tools actually constitute water quality standards. KDOW notes that "It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution." Clean Water Act §101(b). To that end, "States . . . are responsible for reviewing, establishing, and revising water quality standards." 40 CFR §131.4(a). "Water quality standards" are provisions of State or Federal law [not both] which consist of a designated use or uses for waters and water quality criteria to protect the use or uses. 40 CFR §131.3(i). CWA §303(d)(4)(b) requires in pertinent part only that "for waters . . . where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable water quality standards . . . any water quality standard established . . . may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section." By its proposed 'clarifications' EPA seeks to expand its antidegradation 'policy' to the point it swallows whole the primary responsibilities and rights of States to establish water quality standards for State waters. This is not the intention of the Act.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section A 3.a: Section B 3.a: Section C 3.a: Section D 

# Comment ID 0158-A1.001.011
Author Name: Goodmann Peter Organization: Kentucky Division of Water [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 2) EPA Authority KDOW firmly believes water quality standards must be based on sound scientific rationale and appreciates EPA recognition of this important tenet of water quality standards. However, the phrase "based on sound scientific rationale" added at §131.5(a)(2) should be removed as this language creates a new and subjective standard of review. According to EPA (78 FR 54537) the phrase "based on sound scientific rationale" was added to improve consistency with §131.11.

08/04/2015 05:01 PM EDT 2-118Chapter 2 - Comment Documents Legal Authority Therefore, KDOW recommends the following revision: "§131.5(a)(2) Whether the State has adopted criteria that protect the designated water uses consistent with §131.11 [begin strikeout] based on sound scientific rationale. [end strikeout] " Currently, at §131.5(a)(4), EPA is authorized to determine whether State standards which do not include 101(a)(2) uses, "are based upon appropriate technical and scientific data and analyses." And, at §131.6(f) States are required to submit "General information which will aid [EPA] in determining the adequacy of the scientific basis of the standards which do not include the uses specified in section 101 (a)(2) of the Act." In addition, at §131.6 (b) States are required only to identify in their water quality standards submissions to EPA the methods used and analyses conducted to support revisions to WQS. By its proposed additional language at §131.5(a)(2) it appears EPA is seeking to expand its criteria review authority. Such expansion is unnecessary and would increase the burden on States in reviewing and submitting revised water quality criteria.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section D 10.a 

# Comment ID 0165-A2.001.003
Author Name: Gunderson Steven Organization: Colorado Department of Public Health and Environment 2. 50 Years of Divergence of State Programs Cannot be Rolled Back by a Single Regulatory Proposal. The federal Act gives states the authority to develop and manage the WQS framework within the broad boundaries set forth in the Act. Colorado has had an active and robust WQS program for many decades. Our relationship with EPA has not always been smooth, however, in recent years we have worked together productively to protect the state's and the Nation's resource in a manner that is generally mutually satisfactory. Over the 50-years span of the CWA, state WQS programs have evolved to fit the needs of individual states. As could be expected, no two states have chosen the same exact approach. The resultant divergence of state WQS programs, while perhaps clumsy and uncomfortable for EPA, is entirely within the spirit and the letter of the law and is a consequence of the creative thinking and innovative implementation that EPA encourages in times of limited resources. It appears that several aspects of the proposed rule are directed at restricting the variability between states, to impose a more uniform approach and less flexibility. Colorado urges EPA to rethink this approach. A far better approach would be to address perceived state inadequacies directly with the state program which is of concern rather than to add another layer of regulation on all the states. EPA's current choice to add restrictions will serve to divert state resources for those

08/04/2015 05:01 PM EDT 2-119Chapter 2 - Comment Documents Legal Authority states with adequate programs. As indicated in the December 9, 2013 memo from Bob Perciasepe to Assistant and Regional Administrators, in this time of increasingly limited resources we are moving into a new era of partnership and coregulation between EPA and the states, and EPA must use creative thinking to work in partnership with the states. It is critical to remember that what really counts is the water quality that results from the rules, not the rules themselves. Furthermore, states such as Colorado have programs that have resulted in water quality protection and improvement and have been approved by EPA. These would potentially not meet the proposed new requirements. Promulgating burdensome national regulations to address the shortcomings of a few state programs is ineffective and counter
productive.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 

# Comment ID 0166-A2.001.004
Author Name: Goodmann Peter Organization: Kentucky Division of Water KDOW also believes the proposed regulation inappropriately expands the water quality standards program oversight by EPA to substantially overseeing States' implementation of their water quality standards programs. The preamble to the proposed WQS regulation, as well as EPA's public position in webinars and presentations on the proposed WQS regulation, paints a benign picture of the proposed rule as regulatory clarifications meant to improve implementation of the water quality standards program [78 FR 54521]. However, the proposed rule is in fact an alarming expansion of EPA's authority which usurps the inherent authority of States that is recognized, preserved, and protected by the Clean Water Act, to develop and implement their own water quality standards. The proposed WQS regulation establishes greater authority and oversight by EPA of States' water quality standards programs, including implementation of water quality standards and non-water quality standards programs. The proposed WQS regulation simultaneously reduces EPA's potential for litigation challenge regarding its approval of State water quality standards while establishing a low bar for potential litigants to challenge State decisions. It very much appears as if EPA is attempting to bring all State decision-making pursuant to State authority granted by the Act under the rubric of the "water quality standards program" and thus broaden greatly EPA's control of that decision-making. The proposed WQS regulation incorporates into the water quality standards review process issues such as antidegradation policy implementation, implementation of water quality standard variances, and the implementation of compliance schedules as a means to expand EPA's oversight and control of state decision making.

08/04/2015 05:01 PM EDT 2-120Chapter 2 - Comment Documents Legal Authority Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 3.a: Section D 7.m 8.b
8.m 9.e 8.l



# Comment ID 0166-A2.001.007
Author Name: Goodmann Peter Organization: Kentucky Division of Water EPA should reconsider the proposed WQS regulation before going forward, being careful to evaluate whether the proposed WQS regulation is necessary and whether EPA has authority under the Act to specify how states will develop and implement water quality standards, and which Clean Water Act tools actually constitute water quality standards. KDOW notes that "It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution." Clean Water Act §101(b). To that end, "States . . . are responsible for reviewing, establishing, and revising water quality standards." 40 CFR §131.4(a). "Water quality standards" are provisions of State or Federal law [not both] which consist of a designated use or uses for waters and water quality criteria to protect the use or uses. 40 CFR §131.3(i). CWA §303(d)(4)(b) requires in pertinent part only that "for waters . . . where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable water quality standards . . . any water quality standard established . . . may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section." By its proposed 'clarifications' EPA seeks to expand its antidegradation 'policy' to the point it swallows whole the primary responsibilities and rights of States to establish water quality standards for State waters. This is not the intention of the Act.

Response For response to this comment, see the following response essay(s): 3.a 3.a: Section A 3.a: Section B

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3.a: Section C 3.a: Section D 

# Comment ID 0166-A2.001.011
Author Name: Goodmann Peter Organization: Kentucky Division of Water [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 2) EPA Authority KDOW firmly believes water quality standards must be based on sound scientific rationale and appreciates EPA recognition of this important tenet of water quality standards. However, the phrase "based on sound scientific rationale" added at §131.5(a)(2) should be removed as this language creates a new and subjective standard of review. According to EPA (78 FR 54537) the phrase "based on sound scientific rationale" was added to improve consistency with §131.11. Therefore, KDOW recommends the following revision: "§131.5(a)(2) Whether the State has adopted criteria that protect the designated water uses consistent with §131.11 [begin strikeout] based on sound scientific rationale. [end strikeout] " Currently, at §131.5(a)(4), EPA is authorized to determine whether State standards which do not include 101(a)(2) uses, "are based upon appropriate technical and scientific data and analyses." And, at §131.6(f) States are required to submit "General information which will aid [EPA] in determining the adequacy of the scientific basis of the standards which do not include the uses specified in section 101 (a)(2) of the Act." In addition, at §131.6 (b) States are required only to identify in their water quality standards submissions to EPA the methods used and analyses conducted to support revisions to WQS. By its proposed additional language at §131.5(a)(2) it appears EPA is seeking to expand its criteria review authority. Such expansion is unnecessary and would increase the burden on States in reviewing and submitting revised water quality criteria.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section D 10.a 

# Comment ID 0170-A1.001.003
Author Name: Faggert Pamela

08/04/2015 05:01 PM EDT 2-122Chapter 2 - Comment Documents Legal Authority Organization: Dominion Resources Services, Inc. however, we have concerns regarding some of the proposed revisions. These deal primarily with concerns that (1) the regulatory changes impose new responsibilities and liabilities to States and the Regulated community that could result in increased litigation and (2) the proposed changes erode the primacy of the States in implementing water quality standards. We offer specific comments for improvement as discussed in further detail below.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section D 4.e 5.e 5.k 6.b 6.f 6.g 6.h 7.m 8.m 9.e 

# Comment ID 0171-A2.001.019
Author Name: Borkowski Winston Organization: Hopping Green & Sams on behalf of CF Industries, Inc. Summary of Comments To summarize CF's analysis of the proposed rule, the changes proposed by EPA are much more than a clarification of existing regulations; the proposed amendments mandate a detailed federal framework of analyses for what up to now have been state decisions concerning designated use changes, anti-degradation assessments and variances. The proposed amendments further erode state discretion in establishing and implementing state water quality standards contrary to the core Clean Water Act principle of cooperative federalism. CF appreciates the opportunity to provide these comments and asks that EPA thoughtfully consider the observations and analyses above before finalizing the proposed rule.

08/04/2015 05:01 PM EDT 2-123Chapter 2 - Comment Documents Legal Authority Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 

# Comment ID 0173-A1.001.019
Author Name: Borkowski Winston Organization: Hopping Green & Sams on behalf of CF Industries, Inc. Summary of Comments To summarize CF's analysis of the proposed rule, the changes proposed by EPA are much more than a clarification of existing regulations; the proposed amendments mandate a detailed federal framework of analyses for what up to now have been state decisions concerning designated use changes, anti-degradation assessments and variances. The proposed amendments further erode state discretion in establishing and implementing state water quality standards contrary to the core Clean Water Act principle of cooperative federalism. CF appreciates the opportunity to provide these comments and asks that EPA thoughtfully consider the observations and analyses above before finalizing the proposed rule.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 

# Comment ID 0174-A2.001.005
Author Name: Peoples Zachary Organization: Dallas Water Utilities Any rule revisions should not seek uniformity among State Programs for the sake of uniformity alone, but rather retain existing effective approaches. Also, rule revisions should allow States as much flexibility as possible to set the frame work for program details to meet the individual challenges of each State. Once again, the City of Dallas appreciates the opportunity to provide these comments and strongly encourage the EPA

08/04/2015 05:01 PM EDT 2-124Chapter 2 - Comment Documents Legal Authority to adopt only those rule changes that protect and support the environment while maintaining State flexibility in the implementation of water quality standards.

Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 

# Comment ID 0175-A1.001.031
Author Name: Canton Steven Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. 7.0 General Comments
1. In many respects, this rule does not just make ‘clarifications' as the title suggests, it makes significant changes to 40 CFR Part 131 and greatly broadens EPA authority. There are multiple instances where EPA would acquire review and approval authority where it does not currently have it. This removes the power and discretion currently held by states and tribes, and transfers it to the EPA. The sections where this occurs include:

a. 131.5(a) - Authority to review and approve or disapprove of antidegradation policies b. 131.5(a) - Ensuring adopted water quality standard implementation is consistent with antidegradation policies

c. Considering, and requesting comment on, whether antidegradation implementation be adopted as water quality standards subject to EPA review and approval d. 131.14 - Establishing variances as water quality standards, making them subject to EPA review and approval i. Now also subject to a requirement to review on triennial basis

e. 131.14(d) - Approval of WQS variance renewal f. 131.15 - Approval of compliance schedule provisions as water quality standards 2. This transfer of authority from the states and tribes to the EPA would require them to justify their decisions to EPA. Because there is so much ambiguity and "guidance" in the rule - which EPA has frequently imposed as de facto requirements - EPA would acquire power to deny state submittals or require more information. The rule frequently utilizes the term "ensure" when discussing the burden of proof that the states and tribes would have to meet to secure

08/04/2015 05:01 PM EDT 2-125Chapter 2 - Comment Documents Legal Authority EPA approval. This would require a quantum of data and level of proof that would often be virtually impossible to meet. Although the terms "could", "should", "may" and "flexibility" are liberally sprinkled throughout the document when describing what the states might do to comply with the rule, we are concerned how the rule will be implemented in practice. The decision in NMA v. Jackson, (42 ELR 20165, July 31, 2012), and other experiences, suggests that the "guidance" in the rule will be interpreted as imposing mandatory minimums on the states and tribes.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section A 3.a: Section B 3.a: Section C 3.a: Section D 6.g 7.f.i 7.g.i 7.g.ii 7.m 8.c 8.i 8.m 9.e 10.a 

# Comment ID 0181-A2.001.003
Author Name: Sims Shaun Organization: Wyoming Association of Conservation Districts Page 54522 – C. Designated Uses: 2. Background: States and tribes have flexibility when managing their designated uses consistent with the CWA and implementing regulation. COMMENT: WACD commends EPA for recognizing that states and tribes have primacy. WACD is concerned that several of the provisions proposed in this rule fail to adhere to recognize the primacy afforded to states and tribes.
Response For response to this comment, see the following response essay(s):

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3.a 3.a: Section B 

# Comment ID 0194-A1.001.002
Author Name: Stonestreet Robert Organization: West Virginia Chamber of Commerce In general, the Chamber opposes the proposed revisions (other than to 40 CFR § 131.22) as unnecessary and a further unwarranted invasion into the authority and discretion vested in the states to administer their own water programs approved by EPA as consistent with the Clean Water Act. A cornerstone of the Clean Water Act is that the states have primary responsibility for their water programs. § 101(b). The Act further notes that states have the authority and flexibility to consider the "use and value" of water bodies when designating their uses. § 303(2)(A). The proposed revisions further erode what flexibility and discretion the states have left by seeking to impose more federal requirements that, if adopted, would further intrude on the primary role of states intended by the Clean Water Act. The Chamber also offers the following comments on the specific revisions proposed.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section D 

# Comment ID 0196-A1.001.004
Author Name: Bostic Jason Organization: West Virginia Coal Association As a general matter, WVCA is concerned that several of the proposals contained in the draft rule unduly infringe upon the primacy of the states in setting water quality standards under the CWA, and unnecessarily restrict the use of available CWA mechanisms necessary for the establishment of appropriate and attainable standards and permit limits. WVCA and its members are uniquely qualified to offer observations and comments on this point. Coal mining operations in West Virginia were originally and specifically subjected to attempts by EPA to bypass not only the statutory fundamentals of the CWA but also its basic rulemaking principles in an attempt to implement a de facto water quality standard and permitting requirements for mining operations in Appalachia. See generally NMA v. Jackson, 816 F.supp.2d 37 (D.D.C. 2011) and NMA v. Jackson, 768 F.Supp.2d 34 (D.D.C. 2011). EPA's actions inspired regulatory confusion for permit applicants, permit holders and more importantly, the State of West Virginia that persist today despite successful legal challenges.

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Given EPA's acknowledgement in the proposed rule that the current applicable regulatory requirements "provide a strong foundation for water quality-based controls," WVCA believes some of the proposals impacting state autonomy and limiting the use of certain CWA mechanisms are unnecessary, overly restrictive and not sufficiently justified.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section A 3.a: Section B 3.a: Section C 3.a: Section D 

# Comment ID 0196-A1.001.027
Author Name: Bostic Jason Organization: West Virginia Coal Association Conclusion The WVCA believes this new proposal has little to do with improving water quality standards and everything to do with providing new pathways for the agency to continue its recent penchant for bypassing Congress and creating "law" through the arrogant and cynical use of the rulemaking process manipulated to suit a particular political end. At its core, the proposed rulemaking is aimed at eroding the rights and responsibilities previously reserved to the states in the CWA. EPA is unfairly proposing to fundamentally alter that statutorily created balance by virtue of an administrative rulemaking. For these reasons, we believe EPA should reconsider the rulemaking in its entirety and instead focus on nurturing and repairing the carefully-crafted balance of authority between the individual states and EPA created by Congress with enactment of the CWA. WVCA appreciates the opportunity to provide these comments regarding the proposed revisions of the federal water quality regulations.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section A 3.a: Section B

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3.a: Section C 

# Comment ID 0201-A1.001.006
Author Name: Godfrey Mike Organization: Alabama Power

• Each of EPA's proposed changes in the Draft Rule directly or indirectly undercuts and/or supplants the fundamental principle of the CWA that the primary responsibility for establishing and implementing WQS rests with States. EPA must adhere to this Congressional tenet and should revisit a number of proposed changes in the Draft Rule that infringe upon this standard. Relatedly, it is difficult to understand why the agency has chosen to interject the various "review and approval" requirements throughout this Draft Rule given that EPA already possesses the authority to veto state-issued NPDES permits, issued in accordance with WQS, under certain circumstances. Such oversight provisions add an unnecessary layer of bureaucracy and trample the principal authority Congress conferred upon States on this subject.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section D 

# Comment ID 0203-A1.001.002
Author Name: Christman Jim Organization: Hunton & Williams on behalf of Utility Water Act Group I. Introduction A basic principle of the water quality standards (WQS) program, judging from Congress' "policy" in Clean Water Act § 101(b), is that the states - not EPA - have primary responsibility. Water quality standards "are primarily the states' handiwork." American Paper Inst., Inc. v. EPA, 996 F.2d 346,349 (D.C. Cir. 1993). Also, in designating uses of their waters, the states are to consider the "use and value" of the waters (Clean Water Act § 303(2)(A)). States therefore must have flexibility to manage both their waterbodies and their land use and to designate some waterbodies for agriculture or economic development if those uses best reflect their "use and value." Unfortunately, EPA's proposed WQS rule, if promulgated as written, would further transform the water quality standards program so as to thwart the policy of state authority and responsibility, remove most of what flexibility the states have left, and limit the ability of the states to consider the "use and value" of their waters and manage their water and land resources in the best interests of their citizens.

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Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 

# Comment ID 0203-A1.001.031
Author Name: Christman Jim Organization: Hunton & Williams on behalf of Utility Water Act Group VIII. EPA Should Not Interfere with the Complex of State, Interstate, and Federal Laws that Apply to Flows, Flow Modifications, and Flood Control In a variety of ways, the proposed rule would increase federal oversight over hydrological modifications like dams, which may reflect state decisions about allocating water. For example, in deciding whether a waterbody receives Tier 2 antidegradation protection, the state is to consider "hydrology, geomorphic processes, and landscape condition..." (78 Fed. Reg. 54,527 col. 3). States are to choose any "practicable alternatives" to avoid lowering water quality (id. at 54,528 col. 2). Antidegradation implementation methods would have to include best management practices for nonpoint source control (id. at 54,530 col. 3). In determining the highest attainable use and interim requirements during a variance, the state would have to evaluate nonpoint source pollutant reductions (id. at 54,534 col. 2). Demonstrating that a variance is needed would include showing that dam removal or wetland or stream reconfiguration activities would prevent attaining uses or criteria (id.). The authority of states to "allocate quantities of water" is expressly preserved by § 101(g) of the Clean Water Act. EPA should reconsider the proposals that would curtail this state authority.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section D 

# Comment ID 0205-A1.001.002
Author Name: Burd Charlie

08/04/2015 05:01 PM EDT 2-130Chapter 2 - Comment Documents Legal Authority Organization: Independent Oil and Gas Association of West Virginia Inc. The Proposed Rule implicates many of the most fundamental concepts of the federal Clean Water Act ("CWA" or the "Act"), 33 U.S.C. §§ 1251 et seq. As set forth in greater detail below, IOGA-WV has concerns that many of the proposed "clarifications" are unnecessary and will erode the authority and discretion of individual states to implement the CWA while vastly broadening federal oversight and control of state programs.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 3.a: Section D 

# Comment ID 0207-A1.001.002
Author Name: Bodine Susan Organization: American Farm Bureau Federation et al. I. Executive Summary As discussed below, EPA's proposed rule raises three primary concerns. First, the proposed regulatory changes fail to embrace the fundamental principle under the Clean Water Act that the primary responsibility for establishing and implementing water quality standards rests with States. Second, the proposed regulatory changes create the opportunity for EPA to bootstrap its newly claimed authorities and encroach on areas that are outside of the scope of the Clean Water Act (CWA). Third, the proposed regulatory changes are likely to lead to increased, not decreased, litigation by creating new litigable duties on states, EPA, and the regulated community. A brief response to each category of proposed rule changes follows:
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section A 3.a: Section B 3.a: Section D 4.e 5.e

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5.k 6.b 6.f 6.g 6.h 7.m 8.m 9.e 

# Comment ID 0208-A1.001.004
Author Name: Foster Wade Organization: The Fertilizer Institute DISCUSSION Initially, as a general, but very important point, TFI shares the concern expressed by ANPC and other commenters that EPA's Proposed Rule is not a mere "regulatory clarification," as EPA has labeled it. Instead, the Proposed Rule affects a significant change in the WQS program that alters the balance of cooperative federalism under the CWA by truncating states' and tribes' traditional, and statutorily-derived, roles in the WQS process, and should not be promulgated as proposed. TFI offers specific comments in the sections provided below.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 

# Comment ID 0210-A1.001.003
Author Name: Connelly Kent Organization: Coalition of Local Governments While the current part 131 was adopted in 1983, the regulatory standards remain effective. Because water quality standards are the primary responsibility of the states, the extent to which the clarifications in fact represent significant new federal regulations, EPA goes too far, either without statutory authority or applying unnecessary and burdensome regulations.

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Response For response to this comment, see the following response essay(s): 3.a 3.a: Section A 3.a: Section B 3.a: Section C 3.a: Section D 

# Comment ID 0210-A1.001.009
Author Name: Connelly Kent Organization: Coalition of Local Governments The proposed rule does not document how the current state management is insufficient nor why EPA has the authority to impose nonpoint source standards.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section D 7.g.ii 8.g.v 

# Comment ID 0217-A2.001.002
Author Name: Hale Michelle Organization: Alaska Department of Environmental Conservation The Clean Water Act (CWA) clearly directs primacy for the establishment of water quality standards (WQS) and the periodic review of those standards to the states. The CWA does give EPA authority to approve or disapprove the standards the states develop, but it does not give EPA the authority to approve or disapprove of the process states use to review and implement those standards. EPA must recognize that states have different climatic and geophysical factors to consider when establishing WQS, as well as varying legal and policy considerations.

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# Comment ID 0219-A1.001.002
Author Name: McNelly Jeff Organization: ARIPPA III. Executive Summary The proposed rule gives the EPA more controll of the States and Tribes Decision making processes relating to establish water quality standards (WQS) and their implementation. While EPA makes recommendations as to the WQS, it is part of the States-Tribes Annual Review to determine which of the recommended standards are needed to protect the States-Tribes Water Quality. Most importantly the States-Tribes are in a better position to determine how their diversity in terrain (geology and topography), climate, biologic, chemical, and other physical conditions that impact on water quality and the standards in many cases need to reflect these differences while ensuring water quality is achieved and maintained. We are concerned that the proposed rule does not allow the States-Tribes to continue to maximize the benefits of attaining WQS based on their local knowledge.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 

# Comment ID 0219-A1.001.013
Author Name: McNelly Jeff Organization: ARIPPA IV. Conclusions We strongly encourage EPA to clearly indicate that the States-Tribes are in the best position to address WQS for the bodies of waters within their jurisdiction and to insure the WQS are achieved. The State-Tribes have a better knowledge and background on the factors affecting water quality in their jurisdictions.

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# Comment ID 0231-A2.001.002
Author Name: Sanderson Stuart Organization: The Colorado Mining Association Generally speaking, CMA opposes and expresses its concerns about regulations that expand EPA's authority to review and approve WQS in a manner that encroaches on state regulatory powers under the Clean Water Act.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 

# Comment ID 0231-A2.001.007
Author Name: Sanderson Stuart Organization: The Colorado Mining Association Going further, to call the proposal "clarifications" to the regulation is disingenuous because in many areas of the proposal EPA seeks to acquire review and approval authority it currently does not have. The States have the primary role in setting WQS under the CWA, but EPA's proposal severely diminishes a State's ability to determine their own WQS and suggests EPA wants to push a one-size-fits-all approach onto the States. In an agency that prides itself on basing decisions in "sound science," a one-size-fits-all approach would achieve the opposite.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C

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# Comment ID 0231-A2.001.036
Author Name: Sanderson Stuart Organization: The Colorado Mining Association Conclusion For the most part, the proposed rule for the WQS Regulation usurps State and Tribal authority.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 

# Comment ID 0233-A2.001.004
Author Name: Pippy John Organization: Pennsylvania Coal Alliance The Alliance is concerned that several of the provisions contained in the draft rule infringe upon the primary role of the states in setting water quality standards under the CWA. We believe states should have the latitude to set such standards in a manner that recognizes their own unique circumstances.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 

# Comment ID 0234-A2.001.003
Author Name: Andes Fredric Organization: Federal Water Quality Coalition To the extent that EPA does proceed with changes, EPA needs to ensure that it is not infringing on the States' primary role in setting water quality standards under the CWA. EPA also should make sure that it does not infringe on States' pivotal implementation role by unduly restricting the use of available CWA mechanisms, such as compliance schedules and variances, which are needed so that water quality standards and permit limits are appropriate and attainable.

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Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 

# Comment ID 0238-A2.001.003
Author Name: Gonet Phillip Organization: Illinois Coal Association Overall, the ICA is concerned that several of the proposals contained in the draft rule unduly infringe upon the primary role of the states in setting water quality standards under the CWA. We believe the proposals unnecessarily restrict the use of currently available CWA mechanisms to establish appropriate and attainable standards and permit limits. In short, these proposals are unnecessary, overly restrictive and not sufficiently justified.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section D 

# Comment ID 0240-A2.001.032
Author Name: Turner Jr. James Organization: Murray Energy Corporation 7. General Comments
1. In many respects, this rule does not just make 'clarifications' as the title suggests, it makes significant changes to 40 CFR Part 131 and greatly broadens EPA authority, at the expense of the discretion and superior knowledge of the states and tribes in regards to their particular issues and unique situations. There are multiple instances where EPA would acquire review and approval authority where it does not currently have it. This removes the power and discretion currently held by states and tribes, and transfers it to the EPA. The sections where this occurs include:

a. 131.5(a) – Authority to review and approve or disapprove of antidegradation policies

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b. 131.5(a) – Ensuring adopted water quality standard implementation is consistent with antidegradation policies

c. Considering, and requesting comment on, whether antidegradation implementation be adopted as water quality standards subject to EPA review and approval d. 131.14 – Establishing variances as water quality standards, making them subject to EPA review and approval i. Now also subject to a requirement to review on triennial basis

e. 131.14(d) – Approval of WQS variance renewal f. 131.15 – Approval of compliance schedule provisions as water quality standards 2. This transfer of authority from the states and tribes to the EPA would require them to justify their decisions to EPA. Because there is so much ambiguity and "guidance" in the rule – which EPA has frequently imposed as de facto requirements – EPA would acquire largely unbridled power to deny state submittals or require more information. The rule frequently utilizes the term "ensure" when discussing the burden of proof that the states and tribes would have to meet to secure EPA approval. This would require a quantum of data and level of proof that would often be virtually impossible to meet. Although the terms "could", "should", "may" and "flexibility" are liberally sprinkled throughout the document when describing what the states might do to comply with the rule, we are concerned how the rule will be implemented in practice. The decision in NMA v. Jackson, (42 ELR 20165, July 31, 2012), and other experiences, suggests that the "guidance" in the rule will be interpreted as imposing mandatory minimums on the states and tribes.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section A 3.a: Section B 3.a: Section C 3.a: Section D 6.g 7.f.i 7.g.i 7.g.ii 7.m 8.c 8.i 8.m 9.e 10.a

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# Comment ID 0244-A2.001.004
Author Name: Loomis Marion Organization: Wyoming Mining Association The proposed rule also severely restricts the State's ability to set WQS as authorized by the Clean Water Act (CWA). One of the State's primary roles is to derive and impose WQS that are determined to be appropriate for State waters. The proposed rule appears to be pushing a universal approach onto the State that will hinder this authority.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 

# Comment ID 0246-A2.001.002
Author Name: Childs David Organization: Hopping Green & Sams on behalf of Florida Water Environment Association Utility Council The FWEA Utility Council shares concerns expressed in comments submitted by the Florida Department of Environmental Protection (FDEP) regarding variances and other aspects of this rulemaking, which tip the state-federal balance to EPA in the Clean Water Act's administration and may inadvertently hinder state efforts to develop innovative programs to improve and protect water quality. The Utility Council also offers the following detailed comments:
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 

# Comment ID 0247-A2.001.001
Author Name: Turner Judson Organization: Georgia Department of Natural Resources The Georgia Environmental Protection Division (EPD) appreciates the opportunity to comment on the US

08/04/2015 05:01 PM EDT 2-139Chapter 2 - Comment Documents Legal Authority Environmental Protection Agency's (EPA) proposed changes to the federal water quality standards. Of particular concern to us is maintenance of the state's right to be more stringent than the federal government and provisions that may impede the state's ability to protect its waters.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 

# Comment ID 0248-A2.001.001
Author Name: Jellerson David Organization: Mosaic Fertilizer LLC Dear Sir/Madam: Mosaic Fertilizer, LLC ("Mosaic") appreciates the opportunity to offer comments on EPA's Proposed Rule on Water Quality Standards Regulatory Clarifications, 78 Fed. Reg. 54,518 (Sep. 4, 2013) (referred to hereinafter as "the Proposed Rule"). For the reasons stated herein Mosaic urges EPA to critically reconsider some elements of the Proposed Rule, because: (i) the proposal unnecessarily and improperly disrupts the balance between state and federal decision-making established under the Clean Water Act; and (ii) the Proposed Rule, as presently drafted, is susceptible to unintended and undesirable consequences that may impede improvements to the effectiveness of water quality regulations, a goal shared by Mosaic, EPA and many stakeholders, including the public at large.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section D 

# Comment ID 0252-A2.001.005
Author Name: Fry Eric Organization: Peabody Energy Going further, to call the proposal "clarifications" to the regulation is disingenuous because in many areas of the proposal EPA seeks to acquire review and approval authority it currently does not have. The States have the primary

08/04/2015 05:01 PM EDT 2-140Chapter 2 - Comment Documents Legal Authority role in setting WQS under the CWA, but EPA's proposal severely diminishes a State's ability to determine their own WQS and suggests EPA wants to push a one-size-fits-all approach onto the States. In an agency that prides itself on basing decisions in "sound science," a one-size-fits-all approach would achieve the opposite.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 

# Comment ID 0252-A2.001.037
Author Name: Fry Eric Organization: Peabody Energy Conclusion Peabody views much of the proposed rule for the WQS Regulation as an EPA position that usurps State and Tribal authority.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 

# Comment ID 0257-A1.001.003
Author Name: Harpole Chad Organization: Kentucky Chamber of Commerce Congress intended for the states, not EPA, to have primary responsibility for establishment of Water Quality Standards to protect waterbodies within their jurisdictions through the designation of uses and the development of the criteria necessary to protect those uses. The determination of use and value of waters for "public water supplies, promulgation of fish and wildlife, recreation purposes, and agricultural, industrial, and other purposes, . . . taking into consideration their use and value for navigation" is inherently a state function. CWA Section 303(c)(2)(A). Indeed, Section 101(6) of the CWA recognizes Congress' policy to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan the development and use...of land and water

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resources..." The Chamber is concerned the Proposed Rule would significantly restrict a state's flexibility in designating uses and protecting those uses by dictating detailed and time consuming procedures and standards for establishing and implementing water quality standards programs through the NPDES and Section 401 water quality certification programs. This is especially true as set forth below with respect to the proposed changes to antidegradation policy and implementation requirements at 40 CFR 131.12. Thus, the Chamber believes that the Proposed Rule impermissibly infringes upon the states' rights and flexibility to manage and protect waterbodies and their uses within their jurisdictions.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 3.a: Section D 

# Comment ID 0262-A2.001.003
Author Name: Rawlings Laurent Organization: Home Builders Association of Kentucky This proposal appears to be an attempt to expand EPA's role without providing adequate scientific evidence to do so.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 

# Comment ID 0262-A2.001.006
Author Name: Rawlings Laurent Organization: Home Builders Association of Kentucky This is as odious as calling the proposal a "clarification," as the true intent of the proposal, as evidenced by the inclusion of language attempting to severely diminish Kentucky's ability to determine Water Quality Standards, is EPA's clear desire to acquire review and approval authority it does not have.

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Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 

# Comment ID 0262-A2.001.022
Author Name: Rawlings Laurent Organization: Home Builders Association of Kentucky Conclusion HBAK perceives the majority of the proposed rule for the Water Quality Standard Regulation as an EPA attempt to preempt State authority.

Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 

# Comment ID 0276-A2.001.013
Author Name: Alves James Organization: Hopping Green & Sams on behalf of Florida Electric Power Coordinating Group, Inc. Summary of Comments FCG-EC appreciates the opportunity to provide these comments and asks that EPA consider FCG-EC's observations and analyses as the agency moves forward with rulemaking. To summarize FCG-EC's position, the proposed amendments are much more than a clarification of existing regulations, but instead mandate a detailed federalframework of analyses for what heretofore had been state decisions concerning designated use changes, antidegradation, assessments and variances. The proposed amendments further erode state discretion in establishing and implementing state water quality standards contrary to the core Clean Water Act principle of cooperative federalism.

08/04/2015 05:01 PM EDT 2-143Chapter 2 - Comment Documents Legal Authority Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section C 

# Comment ID 0280-A2.001.002
Author Name: Aspatore Amanda Organization: National Mining Association As a general matter, NMA is concerned that several of the proposals contained in the draft rule unduly infringe upon the primary role of the states in setting water quality standards under the CWA, and unnecessarily restrict the use of available CWA mechanisms necessary to the establishment of appropriate and attainable standards and permit limits. Given EPA's acknowledgement in the proposed rule that the current applicable regulatory requirements "provide a strong foundation for water quality-based controls," NMA believes that some of the proposals impacting state autonomy and limiting the use of certain CWA mechanisms are unnecessary, overly restrictive, and not sufficiently justified.
Response For response to this comment, see the following response essay(s): 3.a 3.a: Section B 3.a: Section D 

# Comment ID 0280-A2.001.021
Author Name: Aspatore Amanda Organization: National Mining Association Conclusion Under the CWA, both state agencies and EPA play key roles in protecting our nation's waters. Unfortunately, however, the proposed rule, if adopted, would upset the balance struck in the CWA by unjustifiably expanding EPA's limited statutory authority over the states' discretion in protecting and managing its waters.
Response

08/04/2015 05:01 PM EDT 2-144Chapter 2 - Comment Documents Legal Authority For response to this comment, see the following response essay(s): 3.a 3.a: Section B

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