CHAPTER 3 

Issue Category: Statutory and Executive 

Order Reviews 

Pages 3-453 – 3-454

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 13.a – Statutory & Exec Order Reviews

Essay 13.a – Statutory and Executive Order Reviews

In response to the commenter recommending the U.S. Environmental Protection Agency (EPA) withdraw 

the proposed rule and resubmit with appropriate access to all previous comments, including the public 

comments from the 1998 Advance Notice of Proposed Rulemaking (ANPRM) (63 FR 36742, July 7, 1998), 

EPA disagrees. As described in the preamble to the proposed rule in section I.B, EPA chose not to move 

forward with the 1998 ANPRM. The Water Quality Standards Regulatory Clarifications Proposed Rule

and the Water Quality Standards Regulatory Revisions Final Rule is not a direct continuation of the 1998 

ANPRM. The public comments submitted on the 1998 ANPRM are available to the public through the 

EPA Docket Center, reference Docket W—98—01. EPA included a copy of the ANPRM, which identifies 

its docket number, in the docket for the Water Quality Standards Regulatory Clarifications Proposed 

Rule (EPA-HQ-OW-2010-0606-0081, posted on www.regulations.gov on September 4, 2013). 

Additionally, the Water Quality Standards Regulatory Clarifications Proposed Rule provided contact 

information for the Office of Water docket, as well as an email address and phone number dedicated to 

receive the public’s questions on this rulemaking (See the “Addresses” and “For Further Information 

Contact” sections in the preamble to the proposed rule [78 FR 54518]). EPA notes that no one contacted 

the docket, or the dedicated email address or phone number to inquire about the ANPRM’s docket 

number or how to view the comments received on the ANPRM. Additionally, at the time of the 2010 

Public Listening Sessions, EPA made clear that the sessions were an informal opportunity to give input 

and express views and that there would be a formal comment period following publication of the 

proposed rule (see transcripts at http://water.epa.gov/lawsregs/lawsguidance/wqs_index.cfm, under 

“Listening Session Records” or in the Docket for this rulemaking). However, EPA did also include all 

written input based on the Listening Sessions in the docket for this rulemaking, and this information was 

available to the public throughout the public comment period on the proposed rule. 

In response to the commenter requesting clarification on the proposed rule preamble (section VI.C) 

related to the Regulatory Flexibility Act (RFA), EPA disagrees with commenter’s conclusion that small 

entities may be potentially impacted directly by the regulatory requirements in this rulemaking. As 

stated in the preamble to the final rule (IV.C), small entities are not directly regulated by this final rule 

and the final rule will not have a significant economic impact on a substantial number of small entities. 

In regards to comments that EPA should account for indirect costs to industry or local governments, see 

comment response Essay Code 12.a – Economics: General Comments. 

In response to the comment on the proposed rule preamble (section VI.E) related to Federalism, EPA 

disagrees with commenter’s conclusion that the voluntary consultations under Executive Order 13132 

did not result in greater understanding of the burden on states, tribes, and local governments. As 

explained in the preamble to the final rule (IV.E), this rule does not have federalism implications and it 

will not have substantial direct effects on the states, on the relationship between the national 

government and the states, or on the distribution of power and responsibilities among the various levels 

of government. While the rule finalizes regulatory revisions to provide clarity and transparency in the 

water quality standards (WQS) regulation that may require reevaluation or revision of WQS, the rule will 

not impose substantial direct compliance costs on state or local governments, nor will it preempt state 

law, as discussed in the preamble to the final rule. As described in the Economic Analysis for the Water 

Quality Standards Regulatory Revisions (Final Rule), EPA estimates the total annual cost for this final rule

to states, territories and authorized tribes to range from $5.42 million per year to $20.09 million per 

year. EPA’s substantial compliance cost threshold, above which an EPA rule can be deemed to have 

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Chapter 3 – Response Essays 13.a – Statutory & Exec Order Reviews

federalism implications is $25 million per year. Given this, Executive Order 13132 does not apply to this 

action and EPA is not required to consult with these entities (although EPA did engage in certain 

consultations anyway in the spirit of Executive Order 13132). 

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