# CHAPTER 3
Issue Category: Triennial Reviews

Pages 3- 111 – 3- 137

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 6.a – Tri – Gen Supp



## Essay **6.a – Tri ennial Reviews:**  **Gen eral**  **Supp ort** 

**A. Support**

The U.S. Environmental Protection Agency ( EPA ) appreciates and acknowledges the co mmenters expressing general support for EPA’s proposed change to section 131 .20(a). In additi on, EPA acknowledges commenters’ descriptions of their triennial review processes.

Some commenters supported EPA’s proposed language because they consider it to be consistent with the Clean Water Act ( CWA ) and reflective of the current practice of states and authorized tribes. EPA appreciates and acknowledges these commenters’ support. Several commenters who supported the proposed requirement requested that EPA retain “to assure that designated uses continue to be protected” language as proposed. However, in light of other comments received on the proposal, EPA edited the language as described in section II.C of the preamble to the final rule. Importantly, both Title
40 of the Code of Federal Regulations ( CFR ) section 131.5 and section 131.11 include the language these commenters wanted EPA to retain. As such, their interest is met as the regulation still requires that states and authorized tribes adopt “criteria that protect the designated uses.” EPA encourages commenters to evaluate their states’ or authorized tribes’ triennial review processes in light of the final rule requirements at section 131.20(a) , as well as the discussion at section II.C in the preamble to the final rule

. The final rule clarifies that states and authorized tribes must review at least once every three years their applicable water quality standards ( WQS ) ( adopte d into state or authorized tribal law pursuant to sections 131.10

— 131.15 as well a s f ederally promulgated WQS ) , and also includes a requirement that if states and authorized tribes, following a triennial review, choose not to adopt new
or revised criteria for any parameters for which EPA has published new or updated CWA section 304(a) criteria recommendations, they must explain their decision when reporting the results of their triennial
review to EPA pursuant to CWA section 303(c)(1) and 40 CFR 131.20(c). The preamble to the final rule also describes that when states and authorized tribes conduct their next triennial review (following publication of the final rule) , they must provide an explanation where the criterion in question is related to a parameter for which EPA has published CWA section 304(a) criteria recommendations since May 30, 2000. During subsequent triennial reviews (i.e., after the initial review after this rule is finalized)

, states and authorized tribes must do the same for criteria related to parameters for which EPA has published CWA section 304(a) criteria recommendations since the states’ or authorized tribes’ most
recent triennial review.



### B **. Other**

With regard to commenters suggesting that EPA’s proposed rule does not require states or a uthorized tribes to actually adopt EPA’s CWA section 304(a) criteria recommendations, EPA agrees. Neither the proposed rule, nor the final rule, changes state and authorized tribal discretion to establish criteria pursuant to any of the approaches describe d in section 131 .11(b). See also EPA’s response to code 6.e – Tri ennial Reviews: EPA 304(a) Criteria.

With regard to the commenters agreeing that WQS should be reviewed and modified based on sound science, EPA agrees. See also EPA’s responses to codes 6.e – Triennial Reviews: EPA 304(a) Criteria and 6.g – Triennial Review s: General Comments

.Chapter 3 – Response Essays 6.a – Tri – Gen Supp

With regard to the comments related to the specific rule language proposed at section 131 .20(a), see EPA’s response to code 6.f – Triennial Review s: Proposed Revision.

Some commenters expressed support for the proposed revision as long as the regulation does not require every water body and every WQS to be reviewed every three years

. The final rule does not affect states ’ or authorized tribes ’ discretion to identify high priority target areas during their triennial
review s . However, the CWA and the EPA’s implementing reg ulation require the state or authorized tribe to hold, at least once every three years, a public hearing on all applicable WQS, i.e., CWA

- effective WQS that apply to state or tribal waters, not just a subset of applicable WQS that the state or tribe has id entified as high priority. In this regard, states and authorized tribes must seek and consider public

comment on all of their applicable WQS, including designated uses, water quality criteria, antidegradation requirements, WQS variances, compliance schedul e authorizing provisions (CSAP)

, other general policies that constitute WQS

, and any applicable, federally promulgated WQS

. See also EPA’s response related to the scope of triennial review in code 6.g – Tri ennial Review s: General
Comments

.
Some commenters expressed concern that the timeframe ( three years) to conduct a triennial review of state and authorized tribal WQS is too short. EPA notes that this timeframe comes directly from CWA section 303(c)(1). EPA acknowledges the challenges (e.g., the legal and administrative processes, resource constraints) that states and authorized tribes may experience when conducting triennial reviews, however, EPA has no authority or discretion to provide a longer timeframe for triennial reviews in the regulation than the s tatute specifically allows. EPA’s rulemaking neither proposed nor finalized a change to the three

- year timeframe for a triennial review. See also EPA’s response to code 6.g – Tri ennial Review s: General Comments

.
With regard to commenters discussing specifi c issues with existing state

- adopted criteria, this issue is outside the scope of this rulemaking because this rulemaking is not establishing WQS applicable to any state or tribal waters , rather it is modifying the overall WQS regulation under which states , authorized tribes, and EPA operate.

With regard to commenters suggesting that EPA strengthen the proposed requirement, see the final rule requirements at section 131.20(a) , as well as the discussion at section II.C in the preamble to the final rule

.

With regard to commenters suggesting that EPA disapprove a state or authorized tribal WQS submission solely based on an insufficient record showing the state or authorized tribe properly considered new or updated CWA section 3 04(a) criteria recommendations, EP A disagrees. EPA does not have the authority to disapprove (or withhold action on) new or revised state or authorized tribal WQS that otherwise meet the requirements of the CWA. A bsent the adoption or submission of a new or revised state or authorized tribal WQS, EPA has authority under CWA section 303(c)(4)( B) (and implementing regulation

at section 131 .22(b)) to make an Administrator’s determination that new or revised WQS are necessary to meet the requirements of the Act. Once the Administrator has m ade such determination, EPA must promptly prepare and publish proposed regulations setting forth new or revised WQS for the waters of the United States involved, and must then promulgate such WQS, unless the state or authorized tribe adopts and the EPA approves such WQS before the EPA promulgation is finalized

. In this regard, where the public has information emphasizing the need for certain criteria to be incorporated into a state’s or authorized tribe’s WQS, in addition to providing comment during the und erlying state or authorized tribal notice and comment rulemaking process, the public may provide this information to EPAChapter 3 – Response Essays 6.a – Tri – Gen Supp

(e.g., through a petition under section 553(e) of the Administrative Procedure Act (APA) ( Title 5 of the
U.S. Code (U.S.C. ) Section 553 (e)) to factor into the Agency’s consideration for and decision to make an Administrator’s determination that new or revised WQS are necessary to meet the requirements of the
CWA

.
With regard to the comments suggesting that states and authorized tribes hav e flexibility or discretion to respond to each of the public comments they receive during triennial review, EPA acknowledges the challenges and limitations that states and authorized tribes may experience when conducting triennial
reviews . However, the public comments received during triennial review are part of the state’s or authorized tribe’s WQS review process, and states and authorized tribes must follow any and all public participation and administrative procedures required in state or tribal law with respect to this process, in addition to any federal requirements, including th os e in the final rule . S tates and authorized tribes must submit a certification from the state Attorney General or appropriate t ribal legal authority stating

t hat any new or revised WQS were duly adopted pursuant to state or tribal law, as well as the requirements under 131.20

. EPA notes that it can and does also look at a state’s or authorized tribe’s rulemaking record, including the public hearing transcript and their responsiveness su mmary (i.e., response to comment document) when deciding whether to approve or disapprove a state or authorized tribe’s new or revised WQS. W here the public is dissatisfied with the response (or lack of)
related to a state’s or au thorized tribe’s triennial review and/or the state’s or authorized tribe’s new or revised WQS , the public may pursue challenge of the state or authorized tribal action in state or tribal

court or pursue legal challenge of EPA’s action in federal court

. Fur ther, where the public is dissatisfied with the response (or lack of) related to a state’s or authorized tribe’s existing ( i.e., not new/revised) WQS, the public may petition EPA to promulgate a new/revised WQS under section 553(e) of the APA (5 U.S.C. 553 (e) ) , which could implicate EPA’s Administrator’s determination authority under CWA section 303(c)(4)(B).Chapter 3 – Response Essays 6.b – Tri – Gen Opp



## Essay **6.b – Tri ennial Reviews:**  **Gen eral**  **Opposition**

**A. General**  **Opposition**

Some commenters opposed the U.S. Environmental Protection Agency’s ( EPA’s ) proposed change to
section 131.20(a), but provided no further rationale for their opposition. Some commenters opposed EPA’s proposed language because they believe the existing language is sufficient. EPA disagrees. See EPA’s rationale for the final rule regarding triennial rules in section II.C of the preamble to the final rule.

In addition, t o date, there has been confusion regarding what the entirety of section 131 .20(a) means in regards to the scope of a triennial review, and there have been inconsistent interpretations of whethe r and how the EPA’s Clean Water Act ( CWA ) section 304(a) criteria recommendations play a role in triennial review of state and authorized tribal water quality standards ( WQS ). Stakeholders have expressed concern that states and authorized tribes may retain criteria in their WQS that are no longer protective of designated uses for multiple triennial review cycles, despite the availability of new or updated CWA section 304(a) criteria recommendations. T he final rule includes a requirement that if states and authorized tribes, following a triennial review, choose not to adopt new or revised criteria for any parameters for which EPA has published new or updated CWA section 304(a) criteria recommendations, th ey must explain their decision when reporting the results of their triennial review to EPA under CWA section 303(c)(1) and Title 40 of the Code of Federal Regulations ( CFR ) section 131.20(c). This will ensure that, during triennial review, states and authorized tribes consider the latest science as reflected in the CWA section 304(a) criteria recommendations, and explain their decisions to EPA (and the public). Without such an explanation, EPA and the public may be led to believe that state or authorized tribe is disregarding public comments and environmental protection when really the state or authorized tribe has a plan based on different priorities that has not been communicated to EPA or the public. In regard to comments concerned with a state having to review their criteria outside of the triennial review process or as soon as EPA publishes new CWA section 304(a) criteria, see response essay 6.g – Triennial Reviews: General Comments

.

T he confusion regarding the scope of a triennial review is illustrated in the public comments sugges ting that EPA’s proposed change to section 131 .20(a) expand s the existing requirements for triennial review
and create s a new duty or burden for states and authorized tribes in triennial review. Commenters argue that the existi ng regulation only requires states and authorized tribes to triennially review designated uses that do not include the uses specified in CWA section 101(a)(2) and that the change to
section 131 .20(a) added a new duty and burden on states and authorized tri be s during their triennial
review . EPA disagrees. Th ese comments are based on an inaccurate reading of the regulation (and CWA section 303(c)(1)) , as the first sentence of section 131 .20(a) has always required states and authorized tribes to review “applicable water quality standards,” not only waterbody segments with WQS that do not include the uses specified i n CWA section 101(a)(2). The final rule is not expanding the CWA requirement to review applicable WQS or adding a new requirement or burden ; instead , the final rule (and accompanying preamble) specifically outlines what is mean t by the term “ applicable ” WQS and highlights the need to review existing water quality criteria when EPA has issued new or updated CWA section 304(a) criteria recommendations

. The final rule clarifies that states and authorized tribes must review applicable WQS adopted into state or authorized tribal law pursuant to sections 131.10

— 131.15 as well as f ederally promulgated WQS

. Together, the trienn ial review provisions in the fina l rule clarify the triennial review requirements , specifying the role of new or updated CWA section 304(a) criteriaChapter 3 – Response Essays 6.b – Tri – Gen Opp

recommendations in the developme nt of WQS by states and authorized tribes, promot ing public transparency, and identifying the applicable WQS that must be reviewed triennially.

Also, EPA agrees with commenters that noted that the review of criteria under section 131 .20(a) could lead to changes in criteria that are more or less stringent and, therefore, revised the proposed rule text to better r eflect what is required and what could result in such cases

. EPA partially agrees with commenters who were concerned the proposed wording of the provision gave the impression that CWA section 304(a) recommendations are “superior” to other criteria adopted by states and authorized tribes and approved by EPA. EPA’s recommendations are not “superior” to other criteria but they are based on the latest science and reflect years and significant amount of taxpayer dollars invested into researching what parameter levels may exist in surface waters without impairing the CWA section 101(a)(2) designated uses, and thus they do warrant specific and careful consideration by states and authorized tribes. Additionally, EPA does not desire CWA section 304(a) recommended cri teria to be “de facto”

state or authorized tribal standards, as some commenters suggested. Again, the requirement is simply to ensure that states and authorized tribes carefully review their existing criteria to ensure that they continue to protect applicable designated uses if and when EPA issues new or updated CWA section 304(a) criteria recommendations. Based on those and other comments, EPA revised the regulatory text to place emphasis on the latest science (which is the real driver here) instead of a single focus on CWA section 304(a) recommendations (which is simply the vehicle by which the latest science is conveyed to the public)

.



### B. Rule **Increases Public Transparency**

With regard to the comm ents suggesting that any final changes to section 131 .20(a) focus on increasing public understanding, EPA agrees. EPA’s final rule includes a requirement that if s tates and authorized tribes, following a triennial review, choose not to adopt new or revised criteria for any parameters for which EPA has publis hed new or updated CWA section 304(a) criteria recommendations, they must explain their decision when reporting the results of their triennial review to EPA under CWA section 303(c)(1) and 40 CFR 131.20(c). By requiring states and authorized tribes to prov ide an explanation as specified in the final rule, states and authorized tribes must communicate with EPA (and hence the public) about their decision

- making process and any plans they may have to adopt or revise criteria for these parameters in the future. Without such an explanation, EPA and the public may be led to believe that the state or authorized tribe is disregarding public comments and environmental protection when really the state or authorized tribe has a plan based on different priorities that h as not been communicated to EPA or the public.



### C. Other

With regard to the comments claiming that EPA’s proposed change to section 131.20(a ) would usurp the states’ and authorized tribes’ primacy to establish WQS , see EPA’s response to code 3.a – EPA’s Leg al Authority: General Comments

. With regard to comments discussing whether a state’s or authorized tribe’s current process will meet the requirement at 131.20(a), see response to code 6.c – Triennial
Review s: R eview Process.

With reg ard to the comments cla iming that a complete review of the science behind the state designated use categories during a triennial review is a waste of limited state and authorized tribal resources with little or no environmental benefit, EPA disagre es. T he CWA and EPA’s imp lement ing regulation require s tate s and authorized tribe s to hold, at least once every three years, a public hearingChapter 3 – Response Essays 6.b – Tri – Gen Opp

for the purpose of reviewing applicable WQS, which are all state or authorized tribal WQS as well a s f ederally promulgated WQS and not just a sub set of WQS that the state or authorized tribe has identified as high priority. EPA acknowledges that some states and authorized tribes target specific WQS during an individual triennial review to balance resources and priorities. While t he final rule does not affect states’ or authorized tribes’ discretion to identify such priority areas for action, states and authorized tribes must still, at a minimum, seek and consider public comment on all applicable WQS during triennial review (per the CWA requirement to do so) . The final rule clarifies that when conducting triennial reviews, states and authorized tribes must review all applicable WQS adopted into state or tribal law pursuant to sections 131.10

– 131.15 and any federally promulga ted WQS for that state or tribe (i.e., all applicable WQS)

. Applicable WQS include designated uses ( section 131 .10), w ater quality criteria ( section 131 .11), antidegradation provisions ( section 131 .12), general policies (where such policies constitute WQS) ( section 131 .13), WQS variances ( section 131 .14), and provisions authorizing the use of schedules of compliance for water quality

- based effluent limits ( WQBELs ) in National Pollutant Discharge Elimination System ( NPDES ) permits ( section 131 .15). See also EPA’s response to code s 6 .g – Tri ennial Review s : General Comments

, 12.a – Econ omics: General Comments and code 12.e – Econ omics: Benefits of Proposed Rule

.

For more information related to public participation during a state’s or authorized tribe’s triennia l review and EPA’s proposed changes to section 131 .20(b) related to public participation, see EPA’s response to code 6.d – Triennial Reviews: Public Meeting/Hearing.

With regard to the comments questioning the proposed rule language at section 131 .20(a), see EPA’s response to code 6.f – Triennial Review s: Proposed Revision.

With regard to the comments suggesting that the timeframe ( three years) to conduct a triennial review of state and authorized tri bal WQS is too short, EPA notes that this timeframe comes directly from Congress and CWA section 303(c)(1)

. EPA acknowledges the challenges (e.g., the legal and administrative processes, resource constraints) that states and authorized tribes may experience when conducting triennial reviews, however, EP A has no authority to provide a longer timeframe for triennial
reviews in the regulation than the statute allows

. EPA’s rulemaking neither proposed nor finalized a cha nge to the three

- year timeframe for a triennial review. See also EPA’s response to code 6 .g – Triennial Reviews: General Comments

.
With regard to the comments expressing concern that the proposed rule language at section 131 .20(a) would require states and authorized tribes to adopt criteria that they have deemed “not necessary”, see EPA’s resp ons e related t o the revision to section 131 .2 in co de 10.a – Other Changes to the Rule

.Chapter 3 – Response Essays 6.c – Tri – Rev iew Process



## Essay **6.c – Tri**  **ennial Reviews: Review Process**

The U.S. Environmental Protection Agency ( EPA ) appreciates and acknowledges commenters’ descriptions of state and authorized tribal triennial review processes. EPA also appreciates commenters’ support for the proposed triennial review provision (see response essay code 6.a – Triennial Review s: General Support). EPA acknowledges commenters’ concerns that states and authorized tribes are not meeting the triennial review requirements and may be retaining inadequate water quality standards ( WQS ). In response to general comments on the triennial review process, see final rule requirements at
section 131.20(a) and 131.20(b) , as well as the discussion in section s II.C and II.G in the preamble to the final rule. The final rule , at section 131.20(a), clarifies that states ’ and authorized tribes ’ triennial review s must include review of applicable WQS adopted into state or authorized tribal law pursuant t o sections
131.10

— 131.15 as well as f ederally promulgated WQS for such state or tribe, and also includes a requirement that if states and authorized tribes, following a triennial review, choose not to adopt new or revised criteria for any parameters for which EPA has published new or updated Clean Water Act ( CWA ) section 304(a) criteria recommendations, they must explain their decision when reporting the results of their triennial review to EPA pursuant to CWA section 303(c)(1) and Title 40 of the Code of Federal Regulations ( CFR ) section 131.20(c). The final rule, at section 131.20(b), clarifies the public participation requirements when reviewing as well as when revising WQS

. See also EPA’s response essays for codes 6.d – Tri ennial Review s: Public Meeting/Hearing for additional discussion con cerning public hearings

, and 6.h – Tri ennial Review s: EPA’s Legal Authority for a discussion on EPA’s authority related to triennial review s. See response essay 6.g – Triennial Review s: General Comments in regards to: (1) EPA’s oversight authority in triennial reviews and the scope of triennial reviews; (2) a state’s or authorized tribe’s ability to prioritize their review of their WQS; and (3) commenters’ specific concerns about existing state

- adopted criteria or state triennial review processes. In addition, EPA disagrees with

comments t hat the Agency is complicit in states’ approaches that do not open the entirety of the WQS for public review (see response essay for code 6.g – Triennial Review s: General Comments for additional discussion).

With regard to a commenter’s request that EPA se cure additional funding for states to sufficiently conduct triennial reviews, EPA acknowledges the challenges and resource constraints that states and authorized tribes may experience when conducting triennial reviews, however, EPA has no authority to

prov ide additional funding for this activity (beyond the federal assistance authorized pursuant to CWA section 106 to states, territories, the District of Columbia, tribes and interstate agencies to establish and implement ongoing water pollution control progr ams).

With regard to commenters’ concerns that the proposed rule adds a new burden for states and authorized tribes during triennial review, see EPA’s response to code 6.b – Tri ennial Review s: General Opposition.Chapter 3 – Response Essays 6.d – Tri – Public Meet/Hear



## Essay **6.d – Tri**  **ennial Reviews: Public Meet**  **ing /Hear**  **ing**

**A. General**

The U.S. Environmental Protection Agency ( EPA ) appreciates the commenters that provided descriptions of their triennial review processes. EPA acknowledges that states and authorized tribes each have unique triennial review process es and that they experience different challenges and limitations when conducting triennial reviews

. In this regard, EPA acknowledges that states and authorized tribes may have public participation requirements, including definitions of public hearing and public meeting, codified in their state or tribal law. This rulemaking is not intended to necessarily change states’ or authorized tribes ’ public participation processes , as long as such processes meet minimum federal requirements

. The requirement to hold hearings for the purposes of reviewing, and as appropriate, modifying and adopting water quality standards ( WQS ) comes directly from Clean Water Act ( CWA ) section 303(c)(1). EPA does not have authority to change such a requirement under the CWA via rulemaking. At a minimum, per section 131.20(b), states and authorized tribes are required to follow the provisions of state or tribal law and EPA’s public participation regulation at Title 40 of the Code of Federal Regulations ( CFR ) Part 25 , including in holding a public hearing , any time that they review their applicable WQS or any time that they revise one or more of their applicable WQS

. E PA’s public participation regulation, at 40 CFR section 25.5, sets minimum requirements for states and authorized tribes to publicize a public hearing at least 45 days prior to the date of the hearing; provide to the public reports, documents and data relevant to the discussion at the public hearing at least 30 days before the hearing; hold the hearing at times and places that facilitate attendance by the public; schedule witnesses in advance to allow maximum participation and adequate time; and prepare a t ranscript, recording or other complete record of the hearing proceedings. See 40 CF R section 25.5 for the complete list of f ederal public hearing requirements. The final rule does not prohibit states’ and authorized tribes’ discretion to gather public input using other formats, such as public meetings and webinars , in addition to fulfilling the applicable requirement s for a public hearing and complying with any other applicable requirements of 40 CFR Part 25 (e.g., 40 CFR section 25.10) , any time that they review or revise their WQS

.
EPA reiterates that the purpose of EPA’s proposed and final revision to section 131.20(b) is to provide consistency with the language of CWA section 303(c)(1) and section 131.20(a), not to create a requirement that states and authorized tribes must hold multiple hearings when reviewing or multiple hearings when revising WQS. Neither the proposed rule nor the final rule are changing the requirements

or terms included in 40 CFR Part 25

. EPA reiterates the importance of public input during triennial
review s and state and authorized tribal rulemakings. When a public he aring is held as required by
40 CFR P art 131 in the context of state or authorized tribal review of its applicable WQS or revision of one or more WQS , the public heari ng must comply with the requirements of 40 CFR section 25.5 (in
addition to state or tribal law if state or tribal law is more stringent )

. In fact, EPA has revised the text in
section 131.5 and has deleted section 131.10(e) to ensure the public hearing req uirements are clear and that it is transparent that EPA’s review and approval or disapproval of new or revised WQS involves evaluating whether the state or authorized tribe has followed applicable legal procedures, including
40 CFR Part 25

, for revising or adopting (but not reviewing, since EPA does not approve or disapprove triennial review themselves) standards (see final rule and section II.G of the preamble to the final rule for discussion of these changes).Chapter 3 – Response Essays 6.d – Tri – Public Meet/Hear

With regard to the commenter requesting clarification about when a hearing is required, the final rule clarifies that a public hearing is required when both “reviewing a s well as when revising” WQS (per CWA section 303(c)(1) ) . Thus, a hearing is required when (1) reviewing WQS per sec tion 131.20(a); (2) when revising WQS as a result of reviewing WQS per section 131.20(a); and (3) when revising WQS not as a result of reviewing WQS per section 131.20(a). To be clear, “review WQS per § 131.20(a)” includes the state’s or authorized tribe’s request for input on “scoping” the triennial review (e.g., solicitation on suggested triennial review topics and/or ranking of the topics prior to actually selecting certain areas for adoption or revision ). See subsection B of this essay for additional di scussion on a state’s or authorized tribe’s ability to attempt to prioritize its review of WQS while still complying with the CWA requirement to review all “applicable” WQS at least once every three years

.
With regard to the commenters expressing concern t hat the proposed revisions to section 131.20(b) required multiple hearings when reviewing or multiple hearings when revising WQS, this was not EPA’s intent. The final rule uses the phrase ‘one or more’ to make clear that holding one public hearing when

rev iewing, or one public hearing when revising, WQS will satisfy the legal CWA requirement

, although states and authorized tribes may choose to hold multiple hearings for each (i.e., reviewing and revising WQS)

. See also the final rule requirement at section 131.20(b) and section II.G in the preamble to the final rule.



### B. Other

With regard to commenters expressing concern about how much time passes between triennial reviews for various states and authorized tribes, EPA notes that the CWA sets forth the three -y ear timeframe and thus EPA does not have the authority to extend the timeframe beyond three years. See also EPA’s response in code 6.g – Tri ennial Review s: General Comments

. States and authorized tribes must comply with this CWA requirement.

With regard to commenters describing state and authorized tribal triennial review processes that identify and conduct public participation on certain portions of their WQS but not others , t he final rule does not affect states ’ or authorized tribes ’ discretion to attempt to identify high priority target areas during triennial review . However, the CWA and the EPA’s implementing regulation require the state or authorized tribe to hold, at least once every three years, a public hearing on all “ applicable ” WQS, not just a sub set of applicable WQS that the state or authorized tribe has identified as high priority. In other words, the state or authorized tribe can attempt to prioritize certain applicable WQS for review , but if a member of the public comments on another WQS that is applicable but not within the state’s or authorized tribe’ s priorities, the state or authorized tribe cannot claim that such applicable WQS is outside the scope of its triennial review , and thus must review such WQS for possible addition or
revision

. See also EPA’s response in code 6.g – Tri ennial Review s: General Comments

.
Some commenters suggested that the CWA provides EPA authority to require states and authorized tribes to submit the entirety of its triennial review process (e.g., public comments submitted to the state or authorized tribe during triennial review and their response) and that EPA has an obligation to review the final submission. EPA notes that its authority to approve or disapprove state or authorized tribal WQS only applies to such new or revised WQS , but that under 40 CFR section 131.20(c), states and authorized tribes must submit the results of their triennial review, any supporting analysis, the methodologies used for site

- specific criteria development, any general policies applic able to WQS and any revisions of the standards to the EPA Region al Administrator for review and approval within 30 days of the final state or authorized tribal action to adopt and certify the revised standard, or if no revisionsChapter 3 – Response Essays 6.d – Tri – Public Meet/Hear

are made as a result of the review, within 30 days of the completion of the review

. See also EPA’s

response s to codes 6.f – Tri ennial Review s: Proposed Revision and 6.a – Tri ennial Review s: General Support

.



### C. Outside the **Scope of**  **This Rulemaking**

With regard to the commenter request ing that EPA revise the definition of public hearing, neither EPA’s proposed rule nor the final rule contemplated revising this meaning of this term in 40 CFR Part 25. Thus, this issue is outside the scope of this rulemaking. EPA notes that 40 CFR Part 131 does not include a definition for public hearing , but instead includes a requirement for the state or authorized tribe to hold a public hearing consistent with 40 CFR Part 25

. The comment requests changes to 40 CFR Part 25 to revise the definition to include virtual hearings and that EPA take into account “the curre nt nature of the electronic era. ” EPA notes that , as is obvious due to the timing of their promulgation, neither 40 CFR
Part 131 n or 40 CFR Part 25 contemplated the electronic systems that a re currently available today when establishing the requirements related to the location of the public hearing. Therefore, a virtual location for the public hearing is not prohibited by the current regulations, and could satisfy such requirements if done ap propriately . EPA plans to provide future guidance on how to hold a virtual public hearing that meets the requirements of 40 CFR section 25.5.Chapter 3 – Response Essays 6.e – Tri – EPA 304(a) Criteria



## Essay **6.e – Tri**  **ennial Reviews: EPA 304(a) Criteria** 

**A. Concerns**  **T hat**  **Clean Water Act Section 304(a)**  **Criteria Are Not Updated Consistently** 

Several commenters noted that the U.S. Environmental Protection Agency’s ( EPA’s ) Clean Water Act ( CWA ) section 304(a) criteria recommendations are not updated by EPA on a regular basis an d questioned why, then, EPA would require states and authorized tribes to examine criteria using CWA
section 304(a) criteria recommendations. EPA disagrees with commenters that claimed that because the CWA section 304(a) criteria are not updated on a regular basis, this makes the proposed change at
section 131.20(a) unreasonable. EPA acknowledges that some crite ria have not been updated recently, however, the Agency continues to invest significant resources to examine evolving science for the purpose of updating existing and developing new CWA section 304(a) criteria recommendations to help
states and authorized tribes meet the requirements of the Act , and wants to ensure that states and authorized tribes are considering such recommendations in deciding whether and how to update their water quality criteria

.
EPA has developed and published CWA section 304(a) crite ria recomm endations for approximately
150 pollutants that are based on data and scientific judgments on pollutant concentrations and environmental or human health effects. EPA’ s compilation of national water quality criteria recommendations, published pursuant to CWA section 304(a)

, can be found at: http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm

.

In response to comments , t he final r ule focuses on requiring state s and authorized tribe s to explain their decisions to EPA (and the public) where they do not update their criteria after publication of new or updated recommendations from EPA

. Since EPA updates its CWA section 304(a) recommen dations periodically (per the statute, “from time to time”) to reflect the latest science, it is important that states and authorized tribe s consider EPA’s new or updated recommendations and explain any decisions on their part to not revise or adopt criteria for param eters for which the EPA has published new or updated CWA section 304(a) criteria recommendations . EPA reiterates that under the final rule , when states and authorized tribes conduct their next triennial review following publication of this rule , they must provide an explanation where the criterion in question is related to a parameter for w hich EPA has published CWA section 304(a) criteria recommendations since May 30, 2000 (which is the key date under the “Alaska Rule” at Title 40 of the Code of Federal Regulations ( CFR ) sections 131.21(c) and (e)

. During the triennial reviews that follow that initial review , states and authorized tribes must do the same for any and all criteria related to parameters for which EPA has published CWA section 304(a) criteria recommendations since the states’ or authorized tribes’ most recent triennial review. For discussion responding to concerns regarding the implications of increasing the administrative burden of continuous

re

- examination of criteria, see re sponse to code 6.f – Triennial Review s: Proposed Revision.



### B. **Clean Water Act Section 304(a)**  **Criteria Recommendations Are Guidance**

EPA agrees with comment er s that stated that EPA’s CWA section 304(a) are only guidance . As discussed in section II.C in the p reamble to the final rule, states and authorized tribes are not required to adopt EPA’s CWA section 304(a) criteria recommendations, but under this final regulatory provision, they m ust consider them and, if they do not adopt revised criteria , explain why they did not . W hen re

- examiningChapter 3 – Response Essays 6.e – Tri – EPA 304(a) Criteria

existing state or authorized tribal criteria during a triennial review to determine if new or revised criteria must be adopted to protect designated uses , states and authorized tribes may use any of the approaches in section 131.11(b) to establish new or revised criteria : (1) using the CWA section 304(a) criteria guidance, (2) modifying the CWA section 304(a) criteria guidance to reflect site

- specific conditions, or (3) using other sci entifically defensible methods , so long a s the resulting criteria meet CWA requirements in that they protect applicable designated uses and are based on sound science

. EPA has addressed these comments by revising language in the final rule to place emphasis on the latest
science

, with the release of CWA section 304(a) recommended criteria as the prompt for considering the latest science

. EPA disagrees with commenters that suggest any addition to the provision at section 131.20(a) is unnecessary or unimportant . See section II.C in the preamble to t he final rule for a discussion of why EPA considers this change to be necessary and important. EPA acknowledges that because the CWA s ection 304(a) criteria are national recommendations, site

- specific physical and /or chemical water body characteristics

, va rying sensitivities of local aquatic communities , or site

- specific legally reserved rights may not be precisely reflected in the national recommendation s , and thus it is possible that more or less stringent criteria may be necessary or allowable in certain cases

.
A commenter requested that EPA’s CWA section 304(a) criteria recommendation documents contain a clear statement that they are guidance and do not constitute requirements. EPA’s CWA section 304(a) criteria recommendation documents already typically include a disclaimer in the foreword of the document such as, “ EPA's CWA section 304(a) recommended water quality criteria do not substitute for the CWA or regulations , nor are they regulations themselves. Thus, EPA's recommended criteria do not impose legally binding requirements. States and authorized tribes have the discretion to adopt, where appropriate, other scientifically defensible water quality criteria that differ from these
recommendations. ” See also response to code 6.g – Triennial Review s : G eneral Comments for a discussion regarding concerns of EPA’s approval/disapproval of a state’s or authorized tribe’s consideration of criteria during the triennial review.



### C. States and **Authorized Tribes Can Consider Other New or**  **Updated Science in**  **Their T riennial Reviews** 

EPA appreciates the commenter that noted that it is reasonable for EPA to require consideration of the CWA section 304(a) criteria recommendations as one factor when states and authorized tribes evaluat e their existing water quality standa rds ( WQS ) . EPA agrees and reiterates that the final rule does not prohibit the state or authorized tribe from also including other new or updated scientific evidence, apart from EPA’s new or updated CWA section 304(a) recommended criteria, in its triennial review. In fact, a state or authorized tribe may want to look at new site

- specific information relative to certain water bodies , for example, in addition to new or updated CWA section 304(a) criteria recommendation when deciding whether to adopt new or re vised WQS for such waters

. EPA encourages states and authorized tribes to do so where such site

- specific information is available, as it may lead to more tailored and appropriate criteria for the waters in question.Chapter 3 – Response Essays 6.e – Tri – EPA 304(a) Criteria

With regard to the commenters that suggested that EPA make explicit that states and authorized tribes may take into consideration differing ecological, physical, and hydrological characteristics of water bodies when establishing WQS, EPA agrees. EPA acknowledges that because the CWA s ection 304( a) criteria are national recommendations, site

- specific physical and chemical water body characteristics

, varying sensitivities of local aquatic communities, and/or site

- specific legally reserved rights may not be precisely reflected in the national recomm endation s

. EPA’s 304(a) criteria recommendations are developed to be representative of waters across the Nation and, as such, may not necessarily reflect the actual species composition and/or characteristics at a particular site. As described in subsection B of this response, t he rule does not affect state and authorized tribal discretion to establish new or revised
criteria under section 131.11(b)

, i.e., based on EPA’s 304(a) guidance, 304(a) guidance modified to reflect site

- specific conditions, or other scientifically defensible methods that are protective of applicable designated uses and based on sound scientific rationale

. See Chapter 3 of EPA’ s online Water Quality Standards Handbook ( http://www.epa.gov/wqshandbook ) for information on the procedures EPA has developed for deriving site

- specific criteria.



### D. **Authority to**  **Triennially Review Federally Promulgated Water Quality**  **Standards**

With regard to the commenter suggesting EPA conduct a triennial review of federally promulgated WQS, EPA disagrees for the following reasons

. The final rule clarifies, as the CWA and regulation already require, that the applicable WQS that states and authorized tribes must review triennially include any and all WQS that the EPA has either approved or promulgated for a state or tribe (40 CF R Part 131, Subpart D)

. In this regard, state s and authorized tribe s must triennially re view any federally promulgate d WQS that are applicable to their waters. I f, during a triennial review, the state or authorized tribe determines that the federally promulgated WQS no longer protect its waters, the state or authorized tribe should adopt new or revised WQS. If EPA approves such new or revised WQS, EPA would then withdraw the federally promulgated WQS because they would no longer be necessary to meet CWA requirements

.



### E **. Other**

In response to the comments suggesting that overly str ingent criteria should be reconsidered during triennial review s and that EPA should clarify the rule in this regard, or comments that the current triennial review regulations are difficult to meet, or that discuss EPA’s oversight role in ensuring timely

tr iennial reviews

, see response to code 6.g – Triennial Review s: General Comments

.
With regard to comments that were concerned that the proposed wording of section 131.20(a) gave the impression that CWA section 304(a) recommendations are “superior” to other criteria adopted by states and authorized tribes and approved by EPA, see response for code 6.b – Triennial Review s: General Opposition.

With regard to comments that the proposed revision at section 131.20(a) will lead to increased litigation
and comments that suggested changes to the proposed regulatory text , see response for code 6.f – Triennial Review s: Proposed Revision.

With regard to comments on how EPA has addressed CWA section 303(c)(2)(B), see response for code
2.c – History of WQS Regulation and Program

.Chapter 3 – Response Essays 6.f – Tri – Proposed Revision



## Essay **6.f – Tri ennial Reviews:**  **Proposed Revision**

**A. Comments R**  **elated to T**  **riennial R**  **eview P**  **roposed R**  **evision**

The U.S. Environmental Protection Agency ( EPA ) acknowledges commenters’ suggested rule text at
section 131.20(a). Some commenters suggested revising the language to replace the proposed phrase “to assure that designated uses continue to be protected” with other phrases, such as “to assure that designa ted uses are protected” or “to assure that designated uses are reasonably protected.” They suggested revising the language so that it does not imply that only those criteria that would be more stringent should be evaluated, since at times EPA has promulgat ed new 304(a) recommendations that demonstrate that less stringent criteria are protective of designated uses. Some commenters suggested removing the phrase “to assure that designated uses continue to be protected” from the proposed rule languag e so it doe s not presume that new or updated section 304(a) criteria are superior to criteria that were adopted by the state and approved by EPA. Some commenters suggested revising the language to clarify that any modifications to criteria resulting from the review would need to follow the State's process for adopting or revising water quality standards (WQS) . Some commenters suggested revising the language to specify that states and authorized tribes shall reexamine their criteria in light of updated 304(a) recommend ations “taking into consideration the appropriate adaptation of such recommendations based on the relevant ecological, physical, and hydrological characteristics of the water subject to the criteria.” Those commenters were concerned that the proposed appro ach would limit states’ and authorized tribes’ flexibility to adopt criteria that differ from 304(a) recommendations. Some commenters had suggestions for improving the flow and clarity of the proposed language, without changing the requirements. EPA acknowledges these suggestions for wording revisions in 131.20(a), but has not incorporated them into the final rule. As explained in the preamble, the focus of this part of the final rule is on how a state or authorized tribe explains its decisions to EPA (and the public) rather than
on how the state or authorized tribe conducts its review. For this reason, these particular suggestions are not relevant to the final rule requirement.

Some comments requested that the final rule at section 131.20(a) make explicit t hat states and authorized tribes are required to accept comment and undertake review of “all” WQS, rather than “applicable” WQS. EPA disagree s, because the word “applicable” refers to “ all ” of the WQS that are applicable in the relevant jurisdiction ( WQS a dopted by the state or tribe and approved by EPA as well as federally promulgated WQS. ) Beyond that, there are no other WQS that are “applicable” for Clean Water Act ( CWA ) purposes. EPA’s intent in the proposal was not to qualify the initial sentence in section 131.20(a) regarding “applicable water quality standards” (which are all WQS either approved or promulgated by EPA for a state or tribe) but to supplement it by adding more detail regarding the triennial review of all existing criteria established p ursuant to Title 40 of the Code of Federal Regulations ( CFR ) s ection 131.11 , and having the state or tribe explain why it did not update its criteria where EPA has issued updated 304(a) recommendations . The final rule clarifies what the regulation means by “applicable water quality standards.”

For a discussion on how EPA chose to finalize the language of section 131.20(a) in response to
comments, see the final rule requirements at section 131.20(a), as well as the discussion in section II.C in the preamble to the final rule.Chapter 3 – Response Essays 6.f – Tri – Proposed Revision

EPA acknowledges commenter’s descriptions of states ’ and authorized tribes’ triennial review processes. EPA also encourages states and authorized tribes to evaluate their triennial review processes in light of the final rule requirements and preamble.

With regard to commenters suggesting that EPA’s proposed revision at section 131.20(a) would cause states and authorized tribes to consider whether the criterion could be attained now or in the future prior to adopting new or revised criteri a , EPA disagrees. Further, commenter s suggest that the state or authorized tribe should do an attainability analysis ( UAA ) when considering whether to adopt new or updated criteria. EPA disagrees. The commenter s misconstrue EPA’s intention with this revisi on

. Designated uses establish the environmental objectives and management goals for a water body and by definition at 40 CFR 131.3(f) are “uses specified in WQS for each water body or segment, whether or not they are being attained.” A state or authorized tribe may designate a use that is not currently attained in a water body and

, per 40 CFR 131.11(a), the state or authorized tribe would be required to adopt criteria sufficient to protect that designated use. Such criteria must be based on sound scientific rationale (not based on attainability). Where a water body is not attaining the designated use(s), the
CWA and EPA’s regulations outline several tools (e.g., WQS variances, National Pollutant Discharge Elimination System (N PDES ) permit compliance schedule (CS)

, total maximum daily loads ( TMDLs ) ) that can be implemented such that the water body, over time, meets or attains the designated use goal.

With regard to the commenters suggesting that EPA revise section 131.22 (b) to instead use its authority under CWA section 303(c) (4)(B) as an Administrator’s triennial review determination of each state’s and authorized tribe’s compliance, EPA disagrees. EPA notes that th e CWA intends for , in fact, requires, states and authorized tribes to perform the triennial review function . CWA section 303(c)(4)(B) outlines
the A dministrator ’s authority, irrespective of a triennial review or submission of a revised or new WQS, to determine that a new or revised WQS is necessary to meet the A ct and to promptly propose and promulgate such WQS, unless the state or authorized tribe adopts a new or revised WQS the meets the requirements of the CWA first

. With regard to comments providing sug gestions on the regulatory text of
section 131.20(b), see EPA’s response to code 6.d – Triennial Review s: Public Meeting/Hearing.

Some commenters requested clarification about EPA’s recourse where a state or a uthorized tribe ignores the triennial review re quirement , including whether EPA would withhold approval on submitted WQS in order to force review of other WQS . Other commenters urged EPA to use its authority under CWA section 303(c)(4)(B) to promulgate federal WQS for any state or authorized tribe that fails to conduct a triennial review, if such WQS are necessary to meet the requirements of the CWA. In

response, EPA does not have the authority to disapprove (or withhold action on) a state or authorized tribal WQS submission that otherwise meets the requirements of the CWA in order to force review of other WQS

. EPA notes that CWA section 303(c)(4) give s EPA authority to promptly prepare and publish new or revised WQS for the navigable waters involved i n the case of inadequate new or revised WQS (i.e., disapproved) under CWA s ection 3 03(c)(4)(A) ), and in the case of inadequate WQS that are not new
or revised (i.e., absent the adoption or submission of a new or revised state or authorized tribal WQS)
under CWA section 303(c)(4)(B) . In response to t he commenters, while EPA would not utilize the CWA section 303(c)(4)(B) authority solely because a state or authorized tribe has failed to conduct a triennial review, the EPA Administrator can use this authority to determine that new or revised WQS are

nec essary and promulgate such federal WQS for the navigable waters involved if state or authorized tribal WQS fail to meet CWA requirements . See also EPA’s response to code s 4.c — Administrator’s
Determination : Specific Comments

, 4.d — Administrator’s Determi nation : General Comments , and 6.g – Tri ennial Review s: General Comments

.Chapter 3 – Response Essays 6.f – Tri – Proposed Revision

Some commenters questioned whether EPA would work with each state and authorized tribe to ensure that they are aware of the new or updated CWA section 304(a) criteria recommendations that have been published since the state’s or authorized tribe’s last triennial review. Generally speaking, yes. EPA encourages states and auth orized tribes to work with EPA Regional Offices early and often, including when the state or authorized tribe is starting the triennial review process, to be sure they are aware of all relevant CWA requirements . In addition, EPA Headquarters intends to provide a list of priorities to EPA’s Regional Offices periodically. Such priorities would include a list of new and updated CWA section 304(a) criteria recommendations that the EPA Regional Offices can use to coordinate with states and authorized tribes when starting a triennial review

. Plus EPA’s CWA section 304(a) criteria recommendations are published in the Federal Register (FR) and listed on EPA’s website, making them easily accessible to all states and authorized tribes. See http://water.epa.gov/scitech/swguidance/standard s/criteria/current/index.cfm

.

In response to comments concerning whether the review is needed when the state’s or tribe’s existing criteria are based on something other than EPA’s CWA section 304(a) recommendations, the answer is

yes. EPA has clarified the language in the final rule that states and au thorized tribes are required to provide an explanation when they do not adopt new or revised criteria for parameters for which EPA has published new or updated CWA section 304(a) criteria recommendations . The r equirement is in effect regardless of the basis for the state’s or authorized tribe’s existing criteria.



### B. Comments **R elated to the**  **S cope of**  **T riennial**  **R eview** 

EPA acknowledges the comments expressing support for the proposed rule because it clarifies that

s tates and authorized tribes must reexamine criteria during triennial review to ensure that designated uses continue to be protected. See also EPA’s response to code 6.a – Tri ennial Review s: General Support.

With regard to comments that EPA’s proposed rule added a new duty or burden for states and authorized tribes during triennial review and comments related to general opposition to the revisions to
section 131.20(a) , s ee EPA’ s response to code 6.b – Tri ennial Review s: General Opposition

.
See EPA’s response to code 6.g – Triennial Review s : General Comments and section II.C in the preamble to the final rule for a discussion on what is the scope of WQS that are to be reviewed triennially

, and for response to comments claiming that a complet e review of the science behind the state designated use categories during a triennial review is a waste of limited state and authorized tribal resources with little

or no environmental benefit (as well as above in this essay) . S ee also EPA’s response to co de 12.a – Econ omics: General Comments regarding EPA’s burden estimates

.
In addition, although neither CWA section 303(c) nor CWA section 304(a) require s states and authorized tribes to adopt criteria equal to newly published or updated EPA criteria recomme ndations, EPA notes that CWA section 303(c) does require states to establish ambient water quality criteria that protect applicable designated uses , including numeric criteria for priority toxic pollutants pursuant to CWA section 303(c)(2)(B)

.Chapter 3 – Response Essays 6.f – Tri – Proposed Revision



### C. Comments **R elated to the**  **T riennial**  **R eview**  **P rocess** 

Some commenters suggested that the CWA provides EPA the authority to require states and authorized tribes to submit the entirety of its triennial review process (e.g., public comments submitted to the state or authorized tribe during triennial review and their response) and all WQS for EPA review following
each triennial review. See EPA’s response to code 6.g – Triennial Review s: General Comments for a discussion on review of all WQS . Additionally, EPA does not have authority to review and take action on the supporting documentation (e.g., public comments and responses). However, EPA does consider this information when performing its review of new or revised WQS. CWA section 303(c) outlines the Agency’s authority and duty to approve or disapprove WQS ; however, this authority only extends to new or revised state or authorized tribal WQS. See also EPA’s response in code 6.a – Triennial Review s: General Support and EPA’s “What is a New or Revised Water Quality Standard Under CWA 303(c)(3) Frequently Asked Questions” (EPA

- 820 -F- 12

- 017, October 2012) ( http://water.epa.gov/scitech/swguidance/standards/upload/cwa303faq.pdf ). EPA not es that it can and does also look at a state’s or tribe’s rulemaking record, including the public hearing transcript and their responsiveness summary (i.e., response to comment document) when deciding whether to make an Administrator’s Determination that n ew or revised WQS are necessary under CWA section 303(c)(4)(B). See also subsection A of this response for a discussion of EPA’s authority under CWA sections 303(c)(4)(A) and (B).

With regard to comments related to public participation during a state’s or authorized tribe’s triennial review and EPA’s proposed changes to section 131.20(b) related to public participation, see EPA’s response to code 6.d – Triennial Review s: Public Meeting/Hearing.

With regard to the comments that triennial review requirements apply regardless of whether states and authorized tribes intend to modify WQS to be more or less stringent, see EPA’s response to code 6.g – Tri ennial Review s: General Comments

.
Some comments are related to the timeframe ( three years) to conduct a triennial review and to the limitations that states and authorized tribes experience when conducting triennial review. EPA acknowledges the challenges (e.g., the legal and administrative processes, resource constraints) that
states and authorized tribes may experience when conducting triennial reviews, and EPA notes that the three

- year timeframe comes directly from Congress and CWA section 303(c)(1). See also EPA’s response to code 6.g – Tri ennial Review s: Genera l Comments

.
With regard to comments that states and authorized tribes have discretion about whether to modify or adopt WQS following a triennial review, EPA agrees. See EPA’s response to code 6.h – Tri ennial Review s: EPA’s Legal Authority

.
With regard to comments that EPA approve s or disapproves state and authorized tribal WQS as a whole or entire set of WQS , EPA disagrees. As described above, the CWA requires EPA to approve or disapprove revised or new WQS, and thus does not require EPA to act on those WQS that are not revised or new. See also EPA’s response to code 6.h – Tri ennial Review s: EPA’s Legal Authority

.Chapter 3 – Response Essays 6.f – Tri – Proposed Revision



### D. Comments **R elated to C**  **lean W**  **ater A**  **ct S**  **ection 304(a) C**  **riteria and T**  **riennial**
**R eview** 

See EPA’s response to code 6.e – Triennial Review s: EPA 3 04(a) criteria w ith regard to comments that EPA’s CWA section 304(a) criteria recommendations are guidance and are not updated often enough

, comments suggesting that EPA require states and authorized tribes to adopt new and updated CWA section 304(a) criteria recommendations within a certain period, such as four years , and for discussion of the role of EPA’s CWA section 304(a) recommendations (including use of site

- specific information)

. Because the CWA is clear that section 304(a) criteria recommendations are guidance, EPA notes that commenters who suggest that the rule requires adoption of the new/revised CWA section 304(a) criteria
recommendations into state or authorized tribal WQS misunderstood the proposed revision. See section II.C of the preamble to the final rule and section 13 1.20(a) for what is required under the final rule.

With regard to comments that claim the provision will lead to an increase in legal disputes and increased liability, EPA disagrees as EPA’s current regulations under section 131.11 continue to provide , as they have since 1983, for states and authorized tribes to adopt criteria that are protective of uses through several means, only one of which as discussed in EPA’s response to code 6.g – Tri ennial Review s: General Comments

. Also see EPA’s response to code 6.g – Tri ennial Review s: General Comments , w ith regard to the comments about what an “adequate reexamination of criteria” is during triennial review and comments on the need for EPA to specify/clarify how states have fulfilled this requirement

.
With regard to the comments suggesting that the requirement to re

- examine criteria in light of new or updated CWA section 304(a) recommendations would be triggered at the publication of each new or updated CWA section 304(a) criteria recommendation (rather than durin g the next triennial review), EPA disagrees. See section II.C of the preamble for the final rule and EPA’s response to code 6.g – Tri ennial Review s: General Comments

.



### E. Other

With regard to the comments claiming that EPA’s proposed change to section 131.2 0(a) would usurp the states’ and authorized tribes’ primacy to establish WQS , see EPA’s response to code 3.a – EPA’s Legal Authority: General Comments

.
With regard to comments related to costs and burden incurred by states and authorized tribes as a result of the proposed revision to triennial review or the burden incurred to justify a decision to not modify state or tribal criteria when EPA has issued new or updated CWA section 304(a)
recommendations , see EPA’s response to code 12.a – Economi cs: General Co mments and the Economic Analysis (EA) for the final rule

.
With regard to the comments expressing concern that the proposed rule language at section 131.20(a) would require states and authorized tribes to adopt criteria that they have deemed “not necessary”, see EPA’s response related to the revision to section 131.2 in code 10.a : Other Changes to the Rule

.
With regard to the comments related to highe st attainable use (HAU) , see EPA’s response to code 5.e – Designated Uses: Definitions/Terms

.Chapter 3 – Response Essays 6.f – Tri – Proposed Revision

With regard to the comm ents that suggested revising section 131.20(c) to include a requirement that the State shall include “any public comment received” in its s ubmission of its triennial review to EPA

, EPA notes that neither EPA’s proposed rule nor the final rule include changes to this section. EPA does not have authority to review and take action on the supporting documentation (e.g., public comments

a nd respon ses). However, states typically include this information with their WQS submissions , or make it otherwise available to EPA, and EPA consider s this information when performing its review of new or revised WQS. CWA section 303(c) outlines the Agency’s authority and duty to approve or disapprove WQS ; however, this authority only extends to new or revised state or authorized tribal WQS. See also EPA’s response in code 6.a – Triennial Review s: General Support and EPA’s “What is a New or Revised Water Quality Sta ndard Under CWA 303(c)(3) Frequently Asked Questions” (EPA

- 820 -F- 12

- 017, October 2012) ( htt p://water.epa.gov/scitech/swguidance/standards/upload/cwa303faq.pdf ). EPA notes that it

can and does also look at a state’s or tribe’s rulemaking record, including the public hearing transcript and their responsive ness summary (i.e., response to comment document) when deciding whether to make an Administrator’s Determination tha t new or revised WQS are necessary under CWA section 303(c)(4)(B). See also subsection A of this response for a discussion of EPA’s authority under CWA sections 303(c)(4)(A) and (B).

With regard to the commenters noting the statutory (CWA section 303(c) (3 )) and regulatory (40 CFR 131.21) requirements for EPA to either approve or disapprove a state’s or authorized tribe’s submission of new or revised WQS, neither EPA’s proposed rule nor the final rule include changes to this requirement. Therefore, this comm ent is outside the scope of this rulemaking , but EPA notes that its duty and authority to act on state or authorized trib al revised or new WQS remains unchanged due to this final rule

. The commenter also refers to CWA section 303(a)(3)(C), however, there a re no changes or interpretations to the 40 CFR Part 131 regulations related to this CWA section; therefore, this comment is outside the scope of this rulemaking.

With regard to the comments related to existing uses and antidegradation Tier 1, neither EPA’s proposed rule nor the fi nal rule include changes to these regulatory provisions. Therefore, these

comment s are outside the scope of this rulemaking , and EPA notes that those requirements remain unchanged

.
With regard to the comments asserting that EPA pur posefully omitted reference and discussion of CWA section 303(c)(2)(B) from this rulemaking, EPA disagrees. See EPA’s response to code 2.c for additional discussion. Additionally, although CWA 303(c)(2)(B) requires states to “adopt criteria for all toxic

p ollutants listed ... for which criteria have been published under 304(a)... as necessary to support such designated uses [, ]” n either the Act nor EPA’s regulations require the adoption of the particular numeric value that EPA recommends in its CWA 304(a) criteria recommendation

. Absent extenuating circumstances (such as requirements based on the Endangered Species Act or tribal treaty rights), s tate s and authorized tribes can use any of the methods described 40 CFR 131.11(b) to develop numeric criteria for those toxic pollutants

.Chapter 3 – Response Essays 6.g – T ri – Other General



## Essay **6.g – Tri**  **ennial Reviews: General**  **Comments**

In addition to the responses below, see the final rule requirements at section 131.20(a) and section 131.20(b), as well as the disc ussion at sections II.C and II. G in the preamble to the final rule. See the
U.S. Environmental Protection Agency ’ s ( EPA ’s) response to code 6.f – Triennial Review s: Proposed Revision for the response related to specific suggested edits to the proposed regulatory text.



### A. EPA **D oes**  **N ot**  **H ave**  **A uthority to**  **E xtend**  **the T**  **imeframe for**  **T riennial**  **R eview** 

Several commenters suggest ed that EPA extend the timeframe beyond three years for states and authorized tribes to periodically review their applicable water quality standards ( WQS ). Although the EPA acknowledges the challenges (e.g., the legal and administrative processes, resource constraints)
that states and authorized tribes may experience when conducti ng triennial reviews, the three

- year timeframe for triennial re view comes directly from Clean Water Act ( CWA ) section 303(c)(1)

. EPA has no authority to provide a longer timeframe for triennial reviews because t his timeframe may only be extended by Congress through an amendment to the statute.



### B. Scope of **T riennial**  **Re view** 

With regard to the comments related to the scope of WQS to be reviewed during a t riennial review, EPA acknowledges that each state and authorized tribe conducts their triennial review process differently. The final rule clarifies that the “ applicable ” WQS to be reviewed triennially specifically include designated uses ( section 131.10), water quality criteria ( section 131.11), antidegradation requirements ( section 131.12), general policies (that constitute WQS) ( section 131.13), WQS variances ( section 131.14), provisions authorizing the use of schedules of compliance for water quality

- based effluent limits ( WQBELs ) in National Pollutant Discharge Elimination System ( NPDES ) permits ( section 131.15), and any federally promulgated WQS for such state or authorized tribe

. EPA is aware of some states and authorized tribes that target specific WQS during an individual triennial review, in order to bal ance resources and priorities. The final rule does not affect such states ’ or authorized tribes ’ discretion to attempt to identify high priority target areas. However, the CWA and the EPA ’ s implementing regulation require the state or authorized tribe to hold, at least once every three years, a public hearing on all

“ applicable ” WQS, not just a subset of WQS that t he state or authorized tribe has identified as hig h priority. In this regard, states and authorized tribes must seek and consider public input on all of their applicable WQS at least once every three years

, which applicable WQS includ e designated uses, water quality criteria, antidegradation requirements, WQS variances, compliance schedule authorizing provisions (CSAPs) , other general policies (that constitute WQS)

, and any applicable, federally promulgated WQS for such state or authori zed tribe

. See also EPA ’ s response to code 6.f – Triennial
Review s: Proposed Revision with regard to comments suggesting that the proposed requirement at
section 131.20(a) is a new/additional burden during the triennial review and with regard to comments

r equesting/suggesting the regulations require the submittal of a state ’ s or authorized tribe ’ s entire rulemaking record to EPA.Chapter 3 – Response Essays 6.g – T ri – Other General



### C. C **lean W**  **ater A**  **ct S**  **ection 304(a)**  **C riteria**  **R ecommendations**  **A re**  **G uidance** 

With regard to the comments stating that EPA ’ s CWA sectio n 304(a) criteria recommendations are guidance and national in scope, EPA agrees. EPA has developed and published CWA section 304(a) criteria recommendations for approximately 150 pollutants that are based on data and scientific judgments on pollutant conc entrations and environmental or human health effects. The EPA ’s compilation of national water quality criteria recommendations, published pursuant to CWA section 304(a)

, can be found at: http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm

. EPA acknowledges that because the CWA section 304(a) criteria are national recommendati ons, site

- specific physical and chemical water body characteristics or varying sensitivities of local aquatic communities may not be precisely reflected in the national recommendation s . As such, when re

- examining existing criteria during a triennial review to determine if new or revised criteria are needed to protect designated uses, states and authorized tribes may consider any of the approaches in section 131.11(b) for establish ing new or revised criteria: using the CWA section 304(a) criteria guidance, m odifying the CWA section 304(a) criteria guidance to reflect site

- specific conditions, or using other scientifically defensible methods. T his rulemaking is not intended to affect state and authorized tribal discretion to determine wh ich approach to conside r and/or follow (if the state or authorized tribe moves forward to adopt revised criteria) under
section 131.11(b). EPA acknowledges the state

- specific examples related to development of site

- specific
criteria , and notes that the breadth of the various methods at section 131.11(b) would accommodate such examples

. See also EPA ’ s response to code 6.e – Triennial Review s: EPA 304(a) Criteria.

With regard to commenters requesting that EPA develop protocols for adapting criteria to specific water types, such as ephemeral and intermittent water bodies, EPA acknowledges the comments, but this issue is outside the scope of this rulemaking. EPA notes for the commenter that, in April 2013, the EPA published the Revised Deletion Process for the Site

- Specific Recalculation Procedure for Aquatic Life Criteria, which provides guidance about editing the composition of a Species Sensitivity Distribution of tested species used to derive a site

- specific aquatic life criterion in order to allow it to better reflect the taxonomy of species that reside at the site (See http://water.epa. gov/scitech/swguidance/standards/criteria/aqlife/ammonia/upload/Revised

- Deletion

Process

- for

- the

- Site

- Specific

- Recalculation

- Procedure

- for

- Aquatic

- Life

- Criteria.pdf ). EPA also acknowledges the comments suggesting that EPA ’ s CWA section 304(a) criteria reco mmendations should consider cost

- effectiveness. EPA disagrees because CWA section 304(a) sets out the basis for developing those recommendations (e.g., data and scientific judgments) and does not include cost
considerations . EPA notes, in addition , that th is issue is outside the scope of this rulemaking.

With regard to comments that EPA does not consistently publish new or updated CWA section 304(a) criteria recommendations, see EPA ’ s response to code 6.e – Triennial Review s: EPA 304(a) Criteria.



### D. EPA **’ s**  **O versight**  **A uthority** 

Some comment er s suggest ed that EPA add regulatory language stating that the Agency will use its authority under CWA section 303(c)(4)(B) where states and authorized tribes fail to conduct triennial
revi ew s. EPA acknowledges the state

- spe cific examples to demonstrate that some states are failing to conduct or complete their triennial review processes on a timely basis

. While EPA agrees that the CWA section 303(c)(4)(B) authority is important to ensure WQS meet the requirements of the CWA, EPA disagrees that the Agency needs to add this type of language in the context of failing to conduct or compl ete a triennial review o n a timely basis

. This is because EPA already has such authority clearlyChapter 3 – Response Essays 6.g – T ri – Other General

spelled out in the CWA and implementation regulations, and may exercise it as appropriate, which very well could include a situation where a state or authorized tribe fails to conduct or complete a trien nial review on a timely basis, and as a result has applicable WQS on its books that do not meet CWA

re quirements

.
EPA also disagrees with the commenter that suggests EPA add final rule language that aft er three years of failing to reexamine criteria, states and authorized tribes will be subject to federal promulgation. Again, CWA section 303(c)(4)(B) (and EPA ’s implementing regulation at section 131.22(b)) already give EPA the authority to determine, absent the adoption or submission of a new or revised state or authorized tribal WQS, that new or revised WQS are necessary to meet the requirements of the Act

. Where a state or authorized tribe fail s to review and revise WQS as necessary, the Administrator may make a determination, under CWA section 303(c)(4)(B), that new or revised WQS are necessary to meet the requirements of the CWA. Once the Administrator h as made such determination, EPA must promptly prepare and publish proposed regulations setting forth new or revised WQS for the waters of the United States involved, and must then promulgate such WQS, unless the state or authorized tribe adopts and the EPA approves such WQS before the EPA promulgation.

With regard to the comments suggesting that EPA refuse to approve new or revised WQS from a state or authorized tribe until that state or authorized tribe modifies its criteria in light of new or updated CWA section 304(a) criteria recommendations, EPA disagrees. EPA does not have the authority to disapprove (or withhold action on) a state or authorized tribal WQS submission that otherwise meets the requirements of the CWA because of separate state or authoriz ed tribal action or inaction that does not comply with separate requirements of the Act

.
EPA disagrees with comments suggesting that the Agency is complicit or is enabling states and authorized tribes to ignore the triennial review requirement. EPA ’ s regio nal offices frequently provide informal and formal comment to states and authorized tribes regarding both the timeliness and the content of their triennial reviews. In addition, EPA provides federal assistance, under CWA section 106, to states, territories, the District of Columbia, and tribes to establish and implement ongoing water pollution control programs

— which can includes activities to conduct adequate triennial reviews. See also EPA ’ s response to code 6.f – Triennial Review s: Proposed Revision for a dditional discussion on EPA ’s use of its authority under CWA section 303(c)(4)(B).



### E. Triennial **R eview**  **R equirements**  **A pply**  **R egardless**  **of W**  **hether the R**  **evised**
**W ater**  **Q uality**  **S tandards**  **A re**  **B ecoming**  **M ore or**  **L ess**  **S tringent** 

With regard to the comments requesting clarification that the triennial review requirements apply regardless of whether the state or authorized tribe is revising WQS to be more stringent or less stringent, EPA agrees. As explained in the preamble to the fi nal rule and clarified in section 131.20(a), during a triennial review, states and authorized tribes must s eek and consider public comment on all of their applicable WQS, including designated uses, water quality criteria, antidegradation requirements, WQS variances, CSAPs , other general policies (that constitute WQS)

, and if applicable, federally promulgated WQS, regardless of the direction of any proposed change to any WQS

. If during a triennial
review , for example, a state or authorized tribe finds inform ation indicating that a use higher (i.e., better or more stringent ) than what is currently designated is attainable, the state or authorized tribe should revise their WQS to reflect this (and must do so if the higher/better use is a CWA section 101(a)(2) u se)

. Similarly, if a state or authorized tribe finds information indicating that a CWA section 101(a)(2) use that was previously attainable is now unattainable, the state or authorized tribe c ould conduct a useChapter 3 – Response Essays 6.g – T ri – Other General

attainability analysis (UAA) per section 131. 10(g) to determine the highest attainable use (HAU) and adopt it into their WQS in place of the unattainable use (the state or authorized tribe does not have to remove the unattainable use but could do so if demonstrated )

. EPA acknowledges that states and authorized tribes continue to have discretion to decide whether and how to modify or adop t new or revised WQS, as long as such WQS meet the minimum requirements of the CWA

. With regard to today ’ s final rule requirement, it is important to note that , r egard less of whether new or updated CWA s ection 304(a) criteria recommendations are more stringent or less stringent than their predecessor s or the

state ’ s or authorized tribe ’ s existing criteria , today ’ s rule require s a state or authorized tribe to provide

an explanation to EPA if it does not adopt new or revised criteria for those parameters/ pollutants in its next triennial review. Although EPA revised the regulatory text of section 131.20(a) in the final rule, EPA did not choose to make this point re garding s tringency explicit in section 131.20(a) as section 131.11 (b) already makes clear that state and authorized tribal criteria can be more or less stringent than EPA ’s CWA section 304(a) recommendations so long as the criteria protect the designated use and are based on sound scientific rationale

.



### F. **Examination of Criteria** 

Some commenters requested clarification on what EPA considers adequate re

- examination of criteria and on what EPA expects when a state or authorized tribe re examines its criteria, but does not modify its WQS. The final rule requires that when submitting the results of its triennial review per the current requirements at section 131.20(c), the state or authorized tribe must provide an explanation if it chose

no t to adopt new or revised criteria for any parameters for which EPA has published new or updated CWA section 304(a) criteria recommendations. It is important to note that such explanation will not be reviewed and approved or disapproved by EPA pursuant to CWA section 303(c) and will not be used to disapprove a WQS submission that otherwise mee ts the requirements of the CWA. Rather, by requiring states and authorized tribes to provide an explanation as specified in the final rule

, states and authorized tribe s will have to communicate with EPA (and the ir public) about their decision

- making process and any plans they may have to adopt or revise these criteria in the future. Without such an explanation, EPA and the public may be led to believe that the state or authorized tribe is disregarding the latest science, public comments

, and environmental protection when really the state or authorized tribe has a nother plan based on different priorities that has not been communicated to the EPA or the public (such as being in the process of developing site

- specific criteria for such state or authorized tribe instead of adopting EPA ’ s national recommendation)

. Further, such an explanation will help inform EPA and specifically the Administrator about whether a determination that new or revised WQS are necessary to meet the requirements of the CWA (and promulgation of federal WQS) is warranted. There is no minimum length or depth that such explanation should satisfy, but rather a reasonableness standard, i.e., EPA (and the pu blic) will consider such explanation to see whether the state or authorized tribe has provided a reasonable explanation for not updating its existing criteria despite the existence of

new or updated CWA section 304(a) recommendations. EPA would then evalua te such explanation in deciding whether to either make a CWA section 303(c)(4)(B) Administrator ’s determination regarding whether new or revised WQS are necessary for such state or authorized tribe to meet the requirements of the CWA or respond affirmative ly to a petition requesting such determination

. With regard to comments that the proposed revision to section 131.20(a ) will lead to increased litigation, see EPA ’s response to code 6.f – Triennial Review s: Proposed Revision.Chapter 3 – Response Essays 6.g – T ri – Other General



### G. States and **A uthorized**  **Tribe s**  **C an**  **C onsider**  **O ther**  **N ew**  **or U**  **pdated S**  **cience in**  **T heir**  **T riennial**  **R eviews** 

With regard to the comment suggesting that re

- examination of criteria during a triennial review also include s consideration of other new or updated scientific evidence, not just CWA section 304(a) criteria recommendations, EPA agrees in part. Today ’ s final rule requires the state or authorized tribe to provide an explanation, following a triennial review, if it chose not to adopt new or revised criteria for any parameters for which EPA has published new or updated CWA section 304(a) criteria recommendations (see also section II.C of the preamble to the final rule and the final regulatory text at section 131.20(a) ). This requirement does not prohibit the state or authorized tribe from also including and evaluating other new or updated scientific evidence in its re

- examination . In fact, a state or authorized tribe may prefer to look at new site

- specific information, for example, in addition to a new CWA section 304(a) criteria recommendation when deciding whether to adopt new or revised WQS. However, the requirement to submit an explanation to EPA is only triggered if the state or authorized tribe chose not to adopt n ew or revised criteria for any parameters for which EPA has published new or updated CWA section 304(a) criteria recommendations. Such explanation would not be required if the state or authorized tribe chose not to adopt new or revised criteria based on ot her new or update d scientific
evidence (i.e., where EPA had not published new or updated CWA section 304(a) recommended criteria
since the state ’ s or authorized tribe ’ s last triennial review)

. EPA also notes that CWA section 304(a) provides EPA the authority to develop and publish both “ criteria for water quality accurately reflecting the latest scientific knowledge ” (CWA section 304(a)(1)) and “ information ” (CWA section 304(a)(2)). The final rule requirement at section 131.20(a) to provide an explanation i s related to the criteria published pursuant to CWA section 304(a)(1), but is not triggered by information published pursuant to CWA section 304(a)(2). See section II.C for additional discussion on why EPA choose to focus the review on those parameters for which EPA has new or updated CWA section 304(a) criteria.



### H. The **F inal**  **R ule**  **R equirements**  **to C**  **onsider C**  **lean W**  **ater A**  **ct S**  **ection 304(a)** 
**C riteria**  **R ecommendations**  **A pply**  **at the T**  **ime of**  **S tates**  **’ and**  **A uthorized**  **T ribes**  **’**
**T riennial**  **R eview**  **, N ot**  **at the T**  **ime of**  **P ublication of**  **N ew**  **or U**  **pdated C**  **lean**
**W ater**  **A ct**  **S ection**  **304(a) C**  **riteria R**  **ecommendations**

With regard t o the comment requesting clarification that re

- examination of criteria in light of new or updated CWA section 304(a) recommendations is required in the contex t of the triennial review process, but not more frequently, EPA agrees that the re

- examination requirement in the final rule is triggered during the triennial review process, not more frequently, such as at the time of publication of each new or updated CW A section 304(a) criteria recommendation. As described in section II.C in the preamble to the final rule, when states and authorized tribes conduct their next triennial review after this final rule takes effect, they must provide an explanation where the criterion in question is related to a parameter for which EPA has published CWA section 304(a) criteria recommendations since May 30, 2000 (the key
date in EPA ’ s Alaska Rule at Title 40 of the Code of Federal Regulations ( CFR ) section 131.21(c) and (e))

. D uring the triennial reviews that follow, states and authorized tribes must do the same for criteria related to parameters for which EPA has published CWA section 304(a) criteria recommendations since
the states ’ or authorized tribes ’ most recent triennial review.Chapter 3 – Response Essays 6.g – T ri – Other General



### I. Consideration of **I nput from**  **T ribal**  **G overnments** 

Some commenters requested EPA require states to specifically seek and consider input from tribal governments and to ensure that affected tribes are properly consulted during state WQS rulemaking

pro cesses . Further, some commenters suggested EPA add language requiring consultation with affected tribes prior to any decision by EPA. Neither the proposed rule nor today ’ s final rule include s language requiring states to consider input from tribal governme nts or requiring tribal consultation on state triennial review processes by EPA, thus this issue is outside the scope of this rulemaking . T hat said, t he Agency acknowledges the United States ’ government

- to

- government relationship with and trust responsibil ity 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. Further, EPA acknowledges that when we have discretion, EPA programs should be implemented to honor and respect tribes

. Good governance demands that EPA increase our efforts to work in concert with other federal agencies, tribes, states, and local governme nts to protect human health and the environment. Coming together to set priorities and define mutual roles and responsibilities regarding the administration of environmental protection programs will build stronger, more efficient and effective partnerships . EPA remains committed to continue building on the following efforts: engaging tribal

- elected officials on key environmental and public

- health issues through an annual tribal leaders ’ listening session; coordinating with the Environmental Council of the S tates to include tribal governments in key discussions as co

- regulators; using the Council for the Commission for Environmental Cooperation to ensure that the U.S., Canada and Mexico continue to work with indigenous communities across North America and recognize the importance of the traditional ecological knowledge and practices of indigenous communities; and working with the Department of the Interior to build tribal resiliency regarding the impacts of climate change.



### J. Other

With regard to the comments suggesting the CWA provides EPA authority to require states and authorized tribes to submit the entirety of its triennial review process (e.g., public comments submitted to the state or authorized tribe during triennial review and response s to those commen ts ), see EPA ’s response in code 6.f – Tri ennial Review s: Proposed Revision

.
With regard to comments related to public participation and when public hearings are required, see
EPA ’ s response to code 6.d – Triennial Review s: Public Meeting/Hearing.

With regard to commenters expressing specific concerns with existing state

- adopted criteria, this issue is outside the scope of this rulemaking because this rulemaking is not establishing WQS applicable to any state or tribal waters

.Chapter 3 – Response Essays 6.h – Tri – Legal



## Essay **6.h – Tri**  **ennial Reviews: EPA’s Legal**  **Authority**

The U.S. Environmental Protection Agency ( EPA ) appreciates and acknowledg es the commenters agreeing that states ’ and authorized tribes ’ trie nnial review includes reviewing all applicable water quality criteria , as well as all other applicable water quality standards ( WQS )

. See also the final rule requirements at section 131.20(a) , as well as the discussion at sectio n II.C in the preamble to the final rule

. The final rule clarifies that states and authorized tribes must review applicable WQS adopted into state or authorized tribal law pursuant t o sections 131.10

— 131.15 as well as f ederally promulgated WQS at least onc e every three years , and also includes a requirement that if states and authorized tribes, following a triennial review, choose not to adopt new or revised criteria for any parameters for which EPA has published new or updated Clean Water Act ( CWA ) section 304(a) criteria
recommendations since their last triennial review (except for their first triennial review following the effective date of this rule, which reaches back to any and all CWA section 304(a) criteria
recommendations EPA has published new or up dated since May 30, 2000) , they must explain their decision when reporting the results of their triennial review to EPA pursuant to CWA section 303(c)(1)
and Title 40 of the Code of Federal Regulations ( CFR ) s ection 131.20(c). EPA has provided a list of the CWA section 304(a) criteria recommendations that have been published (new or updated) since May 30, 2000 in the docket for this rulemaking and posted this list on its website.

With regard to the comments urging EPA to use its authority to ensure states and authorized tribes conduct and complete triennial reviews of their WQS every three years, see EPA’s response to code 6.g – Triennial Reviews: General Comments and to code 6.f – T riennial Review s: Proposed Revision for
discuss ions on EPA’s oversight authority

.
With regard to the comment that the CWA gives EPA the authority and obligation to review and approve or disapprove new or revised state or authorized tribal WQS, EPA agrees. CWA section 303(c)(2)(A) requires that states and authorize tribes submit new and revised WQS to EPA. Further, CWA section 303(c)(3) requires that EPA either approve the new or revised WQS within sixty days of submission or disapprove within ninety days. If EPA disapproves a state’s or authorized tribe ’s new or revised WQS, EPA would specify the changes necessary to meet the CWA and regulatory requirements. If the state or authorized tribe fails to adopt and submit necessary revisions within ninety days after notification of the disapproval, EPA must p r omptly propose and promulgate f ederal WQS as specified in CWA section 303(c)(4)(A) and 40 CFR 131.22(a) (unless the state or authorized tribe revises and EPA approves before federal promulgation)

.
With regard to the comments suggesting that EPA has authori ty to require states and authorized tribes to adopt criteria, EPA disagrees in part and agrees in part. Under the final rule, states and authorized tribes are not required to adopt EPA’s CWA section 304(a) recommendations, and are instead, where they are n ot adopting new or revised criteria for those parameters which EPA has published new or revised CWA section 304(a) recommendations, required to provide an explanation for why they are not revising the ir criteria for parameters that correspond to EPA’s new or updated recommendations at this time. However, states and authorized tribes must adopt criteria that are scientifically defensible and protective of the designated use to ensure that WQS “protect the public health or welfare, enhance the quality of wate r and serve the purposes of” the Act (CWA section 303(c)(2)(A)) and to adopt criteria for the toxic pollutant parameters as described in CWA 303(c)(2)( B ) and section 131.11.Chapter 3 – Response Essays 6.h – Tri – Legal

In regards to EPA’s role, t he CWA creates a partnership between states and authori zed tribes and EPA, by assigning states and authorized tribes the primary role of adopting WQS (CWA sections 101(b) and 303), and EPA the oversight role of reviewing and approving or disapproving state and authorized tribal WQS and promulgating federal WQS as necessary (CWA section 303(c)). The CWA also assigns EPA the role of publishing national recommended criteria to assist states and authorized tribes in adopting water quality criteria in their WQS (CWA section 304(a)(1)). T his rulemaking did not propose and is not finalizing changes to the substance of section 131.11 , which, at bottom, requires that state and authorized tribes adopt criteria that protect applicable designated uses and are based on sound scientific rationale (regardless of whether those criteria are less stringent than, equal to, or more stringent than EPA’s CWA section 304(a) recommendations)

. EPA acknowledges that where a state or authorized tribe fails to review and revise WQS where necessary, the Administrator may make a
determination that new or revised WQS are necessary to meet the requirements of the CWA , under CWA section 303(c)(4)(B)

. See also EPA’s response related to EPA’s oversight authority in code 6.g – Tri ennial Review s: General Comments

.
With regard to the com ments suggesting the CWA provides EPA authority to require states and authorized tribes to submit the entirety of its triennial review process (e.g., public comments submitted to the state or authorized tribe during triennial review and their response), se e EPA’s response in code 6.f – Tri ennial Review s: Proposed Revision

.