# CHAPTER 2 Issue Category: Designated Uses Pages 2- 230– 2-462

Response to Public Comments Water Quality Standard s Regulatory Revisions

August 2015

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

This document is part of a larger document .Chapter 2 - Comment Documents Designated Uses 

# 5 - DESIGNATED USES No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.


# 5.A - DU - GEN SUPP Comment ID 0118-A1.001.001
Author Name: Lakkad Manish Organization: NA My comments are towards the EPA's Water Quality Standards :clarifications. I have chosen to comment on the Proposal on the amendments that state and tribe should adopt revised WQS based on the highest attainable use .I support this proposal because the states and tribes should provide the uses of the water .This is rather useful in maintaining the chemical, physical and biological integrity of the water body. The use of the water body will therefore be useful in preservation and protection of the aquatic life and wild life. For example if the water body is receiving discharge from the industry ,than it would interfere with the chemical nature of the water and also interfere the aquatic life .Therefore it is necessary to provide and adopt the water quality standards according to the use of the water by the states and tribes.
Response For response to this comment, see the following response essay(s): 5.a 

# Comment ID 0118-A1.001.006
Author Name: Lakkad Manish Organization: NA Hence from the above cases ,it can be inferred that the involving the states and tribes in rule making and revising the WQS has and will prove beneficial to the states and tribes for the preservation of the integrity of the water quality. By providing the water quality standards upon the designated use of the water there would be preservation of the aquatic life and the wild life. Thus EPA steps towards the highest attainable use is considered as a positive according to me ,this is because setting the standards for the specified use from the water bodies should be made
Response For response to this comment, see the following response essay(s):

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5.a 

# Comment ID 0121-A1.001.003
Author Name: Whirley Gregory Organization: Virginia Department of Transportation (2)Designated Uses - §131.10(g) Language was added to amend §131.10(g) to provide that where a state or tribe adopts new or revised water quality standards based on a use attainability analysis (UAA), it must adopt the highest attainable use (HAU). The proposed definition for HAU is "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in §131.3(g)." To meet the UAA-HAU, states may use their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use. It is our understanding that the Virginia Department of Environmental Quality (DEQ) only infrequently conducts Use Attainability Analyses. Also, the requirement to maintain the highest attainable use appears to be generally consistent with current DEQ implementation and policy. Therefore, we anticipate that this provision is not likely to substantively impact VDOT.
Response For response to this comment, see the following response essay(s): 5.a 

# Comment ID 0123-A1.001.006
Author Name: Chin Ryan Organization: NA Designated Uses I agree with EPA's proposal that states or tribes when adopting new or revised water standards on a use attainability analysis (UAA), it must adopt the highest attainable use (HAU).
Response For response to this comment, see the following response essay(s): 5.a

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# Comment ID 0127-A1.001.003
Author Name: Sawtelle Andrew Organization: NA My comments are focused mainly on the proposed revisions regarding designated uses and triennial review. I strongly support the added explicit provision that a state or tribe must adopt the highest attainable use (HAU) when adopting new or revised water quality standards based on a use attainability analysis (UAA), and must also adopt criteria to protect that use.
Response For response to this comment, see the following response essay(s): 5.a 

# Comment ID 0156-A1.001.003
Author Name: Jackie Kepke Adam Link Organization: California Association of Sanitation Agencies and Tri-TAC Designated Uses [Notice Section III.C, FR 54522 - 54525, 40 CFR sections 131.10(g), 131.10(k), 131.3(m).] Appropriate designated use classification remains a critical issue for municipal wastewater treatment facilities in California. CASA and Tri-TAC appreciate many of the proposed clarifications related to designated uses, and particularly the fact that the regulatory proposal reflects an emphasis on assigning use designations that accurately reflect the highest attainable uses. We also appreciate USEPA's acknowledgement that "states and tribes have broad discretion to determine the appropriate level of specificity to use in identifying and defining designated uses, and nothing in this proposal is intended to narrow that discretion." (FR 54523)
Response For response to this comment, see the following response essay(s): 5.a 5.f.i 

# Comment ID 0186-A1.001.017
Author Name: Claff Roger

08/04/2015 05:01 PM EDT 2-232Chapter 2 - Comment Documents Designated Uses Organization: American Petroleum Institute Designated Uses (Section III.C., 78 Fed. Reg. 54522-54525) The proposed additions to 40 CFR 131.10 are generally clarifications of interpretations that API believes most states already follow. API's position is that clarity of complicated regulations, such as the Federal WQS rule, is essential so that regulated entities, such as the facilities of its member companies, can determine exactly how to assure that the facilities comply with the rules. In this context, API approves of the proposed changes to 40 CFR 131.10 regarding how to set and revise designated uses on surface waters of the U.S.
Response For response to this comment, see the following response essay(s): 5.a 

# Comment ID 0236-A2.001.004
Author Name: Weigel Brian Organization: Wisconsin Department of Natural Resources C. 131.10 Designated Uses WDNR supports most of EPA's proposed changes related to designated uses, and feels that they are in line with our understanding of the principles of designated uses, UAAs, and the biocondition gradient concept that EPA is encouraging states to adopt. We feel that the proposed changes will mesh well with Wisconsin's efforts to improve its DU structure. Comments in this section include items that WDNR supports as well as additional recommended changes for EPA to consider.
Response For response to this comment, see the following response essay(s): 5.a 

# Comment ID 0249-A2.001.007
Author Name: Calamita F. Paul Organization: General Counsel on behalf of The Wet Weather Partnership et al.

08/04/2015 05:01 PM EDT 2-233Chapter 2 - Comment Documents Designated Uses With the recommended change above, the Associations support EPA's proposed amendments.
Response For response to this comment, see the following response essay(s): 5.a 5.f 5.f.i 

# Comment ID 0268-A2.001.005
Author Name: Bell Nina Organization: Northwest Environmental Advocates C. Designated Uses We agree with the proposed changes to the regulations related to revised standards based on the outcome of a Use Attainability Analysis (UAA). It is consistent with the statute that states must adopt the highest attainable use and criteria to protect those uses. Clarification of these requirements along with a definition of highest attainable use (HAU) is a good idea.
Response For response to this comment, see the following response essay(s): 5.a 

# Comment ID 0278-A2.001.004
Author Name: Hornback Chris Organization: National Association of Clean Water Agencies Designated Uses NACWA supports EPA's focus on designated uses, which serve as the cornerstone of the WQS program, and use attainability analyses, which provide an essential tool for assessing the factors that may affect use attainment. EPA should further clarify certain key themes and concepts underlying designated uses as described below.

08/04/2015 05:01 PM EDT 2-234Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.a


# 5.B - DU - GEN OPP Comment ID 0169-A1.001.007
Author Name: Letient Henri Organization: Teck Alaska Incorporated 2. Designated Uses Teck is familiar with the reclassification process by which certain designated uses of a waterbody may be removed, as several reaches of streams near the Red Dog Mine have gone through the process. In most-if not all-cases, natural occurring pollutant concentrations in the stream prevented attainment of the use[s] being removed. Teck offers its comments on EPA's proposal from the perspective of a regulated entity that has successfully navigated the process laid out in current regulations, specifically in 40 CFR 131.10 and 18 AAC 70.230 (the relevant State regulation).[FN3] As a mine operator in an area of naturally-mineralized streams, Teck has appreciated and even relied upon the opportunity that reclassification provides to calibrate water quality protection to match natural conditions. But the process has been anything but easy, and Teck has invested substantial resources into the various reclassifications that it has accomplished. The State and federal agencies, in Teck's experience, have been vigilant in their joint administration of the current regulatory scheme, and have together required Teck to carefully document each step of its supporting analysis. From Teck's experience, the current regulatory regime surrounding reclassification is challenging but workable, and under no circumstances should EPA make it any more difficult. However, there are some points in EPA's proposals that Teck supports. [FN3] The waterbodies near the Red Dog Mine that have been re-classified are listed at 18 AAC 70.230(e)(3),(7),(8),(16),(18),(19),(20),(22), and (24).
Response For response to this comment, see the following response essay(s): 5.b 5.f 5.f.i 

# Comment ID 0171-A2.001.009

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Author Name: Borkowski Winston Organization: Hopping Green & Sams on behalf of CF Industries, Inc. The proposed amendments perpetuate a policy of discouraging designated use changes regardless of how credible and defensible. Such a policy is inconsistent with the March 6, 2006, memorandum issued by Ephraim King, former Director of EPA's Office of Science and Technology, in which Director King states: I am writing you to reinforce the importance of working together with our state and tribal partners to make the UAA process operate more effectively. As you know, appropriate and defensible water quality standards (WQS) are essential for achieving the Clean Water Act (CWA) goals of maintaining and restoring water quality-and getting WQS right starts with getting designated uses right. *** There is nothing wrong with changing designated uses as a result of completion of a credible UAA. It is an expected part of the process. If a credible and defensible UAA indicates the need for a WQS change, then a change to WQS is appropriate to effectively implementing the WQS program. Sometimes these changes are on the critical path to making real environmental progress. (Emphasis as in original).
Response For response to this comment, see the following response essay(s): 5.b 

# Comment ID 0173-A1.001.009
Author Name: Borkowski Winston Organization: Hopping Green & Sams on behalf of CF Industries, Inc. The proposed amendments perpetuate a policy of discouraging designated use changes regardless of how credible and defensible. Such a policy is inconsistent with the March 6, 2006, memorandum issued by Ephraim King, former Director of EPA's Office of Science and Technology, in which Director King states: I am writing you to reinforce the importance of working together with our state and tribal partners to make the UAA process operate more effectively. As you know, appropriate and defensible water quality standards (WQS) are essential for achieving the Clean Water Act (CWA) goals of maintaining and restoring water quality-and getting WQS right starts with getting designated uses right. *** There is nothing wrong with changing designated uses as a result of completion of a credible UAA. It is an expected

08/04/2015 05:01 PM EDT 2-236Chapter 2 - Comment Documents Designated Uses part of the process. If a credible and defensible UAA indicates the need for a WQS change, then a change to WQS is appropriate to effectively implementing the WQS program. Sometimes these changes are on the critical path to making real environmental progress. (Emphasis as in original).
Response For response to this comment, see the following response essay(s): 5.b 

# Comment ID 0243-A2.001.005
Author Name: Daniels Zane Organization: Ohio Coal Association In addition, many states, including Ohio, already allow a deviation from a designated use only when it is appropriately demonstrated that the use cannot be maintained. See Ohio Adm.Code 3745-1-07(A). Thus, the federal regulation is unnecessary.
Response For response to this comment, see the following response essay(s): 5.b 

# Comment ID 0276-A2.001.005
Author Name: Alves James Organization: Hopping Green & Sams on behalf of Florida Electric Power Coordinating Group, Inc. The proposed amendments perpetuate a policy of discouraging designated use changes regardless of how credible and defensible. Such a policy is inconsistent with the March 6, 2006 memorandum issued by Ephraim King, former Director of EPA's Office of Science and Technology: There is nothing wrong with changing designated uses after completion of a credible UAA. It is an expected part of the process. If a credible and defensible UAA indicates the need for a WQS change, then a change to WQS is appropriate to effectively implementing the WQS program. Sometimes these changes are on the critical path to making real environmental progress. (Emphasis added in original.)

08/04/2015 05:01 PM EDT 2-237Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.b


# 5.C - DU - UAA PROCESS Comment ID 0175-A1.001.006
Author Name: Canton Steven Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. d. The requirement that the factors listed in 131.10(g) must be used whenever a UAA is required is overly stringent. Many of those criteria are difficult to ‘prove'. Many UAAs currently conducted by states use minimal data to determine if a use is generally attained or not, and would not meet EPA's new requirement that all "attainable uses" must equal "HAU".
Response For response to this comment, see the following response essay(s): 5.c 

# Comment ID 0224-A1.001.006
Author Name: Ternieden Claudio Organization: Water Environment Federation Current regulation (131.10(g) & (h)(1)) prohibits states and tribes from removing a DU if it would also remove an existing use unless they add a use that requires more stringent criteria. The example presented is a warm water fishery (WWF) created by a dam. If a state removes the WWF DU due to dam removal, then the new use, a cold water fishery would require more stringent criteria.
Response For response to this comment, see the following response essay(s): 5.c 

# Comment ID 0240-A2.001.007

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Author Name: Turner Jr. James Organization: Murray Energy Corporation d. The requirement that the factors listed in 131.10(g) must be used whenever a UAA is required is overly stringent. Many of those criteria are difficult to 'prove'. Many UAAs currently conducted by states use minimal data to determine if a use is generally attained or not, and would not meet EPA's new requirement that all "attainable uses" must equal "HAU".
Response For response to this comment, see the following response essay(s): 5.c


# 5.D - DU - EXISTING USES Comment ID 0153-A2.001.004
Author Name: Bishop Jonathan Organization: California State Water Resources Control Board II. Designated Uses. A. Clarification of what comprises an "existing use."EPA's interpretation of an "existing use" implicates a state's removal of a designated use and implementation of its antidegradation policy. (40 C.F.R. § 131.12(a)(1).) The current WQS regulations provide that a state may remove a "designated use" so long as that use is not an "existing use." (Id., § 131.10(g).) "Existing uses" is defined as "those uses actually attained in the water body on or after November 28, 1975." (Id., § 131.3(e).) With reference to an EPA letter to the State of Oklahoma, [FN4] EPA asserts in the preamble that "existing uses" are "known to be 'attained' when both the use and the water quality necessary to support the use has been achieved." (78 Fed. Reg. 54523, col. 1 (emphasis in original).) The State Water Board disagrees with EPA's current interpretation as stated in the preamble that an existing use is known to be attained only where data exists that the use is actually occurring and the water quality to support that use has been achieved. That interpretation is contrary to the longstanding position held by EPA and shared by the State Water Board that an "existing use" can be established where the use actually occurred since November 28, 1975 or the water quality supports the use. For example, EPA states in its Water Quality Standards Handbook (2d ed. March 2012), at chapter 4.4 ("Protection of

08/04/2015 05:01 PM EDT 2-239Chapter 2 - Comment Documents Designated Uses Existing Uses"), that "[a]n "existing use" can be established by demonstrating that:

•fishing, swimming, or other uses have actually occurred since November 28, 1975; or

•that the water quality is suitable to allow the use to be attained--unless there: are physical problems, such as substrate or flow, that prevent the use from being attained." (Emphasis in original; see EPA, Water Quality Standards Handbook (2d ed. 1994), p. 4-3 [also describing the two prongs for the "existing use" determination in the disjunctive]; see also EPA Memorandum, "Determination of 'Existing Uses' for Purposes of Water Quality Standards Implementation," (April 7, 1986), p. 1 [explaining, "[t]he water quality standards regulation does not establish a level of specificity which each State must apply in determining what 'uses' exist."].) [FN5] As far back as 1994, EPA provided one clear example of when the assessment of "existing uses" should be found in the absence of the actual use: "An example of [suitable water quality] is an area where shellfish are propagating and surviving in a biologically suitable habitat and are available and suitable for harvesting although, to date, no one has attempted to harvest them. Such facts clearly establish that shellfish harvesting is an "existing" use, not one dependent on improvements in water quality. To argue otherwise would be to say that the only time an aquatic protection use "exists" is if someone succeeds in catching fish." (EPA, Water Quality Standards Handbook (2d ed. 1994), p. 4-3.) Applying EPA's new interpretation would permit the removal of a designated use in circumstances where the actual use is established but the water quality necessary to protect that use has never been achieved. It may also allow removal of a use where the water quality is adequate but the use has not yet occurred, such as the case where no one happens to be drinking high quality water. In this case, the highest attainable use would presumably still be drinking water supply, but example 4 in the attachment to EPA's Letter to the State of Oklahoma states, "If data are clear that the water quality was sufficient to support a public water supply (PWS) use, but no PWS use actually occurred since there was no PWS intake, then the Federal regulations do not require that the state or tribe find that there is an existing public water supply use. ... For example, if a use has never occurred in or on the waterbody since November 28, 1975, but the water quality at the time of evaluation would support such a use, a state or tribe may determine that this use is an existing use because maintaining the water quality will preserve its use in the future." (Emphasis in original.) The discussion contained in the EPA Letter to the State of Oklahoma is far more nuanced than the preamble suggests. In addition to being a departure from long-held views, requiring a showing of both the actual use and water quality to support that use eliminates threshold water quality protections necessary to attain the CWA's goal of restoring and maintaining the chemical, physical, and biological integrity of the Nation's waters. EPA's view that there must be a dual showing of actual use and water quality to support that use is also contrary to the plain reading of the definition itself: The regulation utilizes the term "actual use" as the sole qualifying criteria for an existing use. (40 C.F.R. § 131.3(e).) Finally, EPA's interpretation of "existing use" is inconsistent with the manner in which the State Water Board currently implements WQS. As a result, EPA's interpretation of existing use in the preamble is detrimental to the State Water

08/04/2015 05:01 PM EDT 2-240Chapter 2 - Comment Documents Designated Uses Board's ongoing protection and preservation of water quality. For instance, many of the our State's beaches have not since 1975 regularly achieved the water quality necessary to fully support the water contact recreation use; however, millions of people utilize these beaches for water contact recreation throughout the year despite the public health risk. The State Water Board's recommendation: The State Water Board recommends that EPA revise the preamble's description of when an existing use is "known to be attained" to "states have discretion to determine whether an existing use has been attained, based on either the actual use or the water quality necessary to support the use has been achieved." [FN4] Letter from Director Denise Keehner, Standards and Health Protection Division, EPA, to Derek Smithee, Water Resources Board, State of Oklahoma (Sept. 5, 2008) (with attachment), available at http://water.epa.gov/scitech/swguidance/standards/upload/Smithee-existing-uses-2008-09-23.pdf(hereafter, EPA Letter to the State of Oklahoma). [FN5] EPA's memorandum is at http://water.epa.gov/scitech/swguidance/standards/adeg/memos.cfm

. Response For response to this comment, see the following response essay(s): 5.d 5.d: Section B 

# Comment ID 0180-A2.001.014
Author Name: Hobson Chris Organization: Southern Company C. Existing Uses EPA has long acknowledged that the designation of "existing uses" is a difficult and often flawed process. See, for example, 63 Fed. Reg. 36742, 36751 (July 7, 1988) ("Determining whether or not an existing use has occurred in the past or is currently in place is not always a straightforward task, ... and over the years, a number of questions have been raised about exactly what the 'existing use' provisions in 131.10 require."). The risk of flaws is compounded by the fact that (1) EPA's "look-back" date of November 28, 1975 is completely arbitrary from a water quality perspective; (2) many states historically designated uses without regard to attainability; and (3) reliable records regarding existing uses are often incomplete or unavailable. To mitigate this risk, Southern Company believes that EPA should encourage states to revisit whether their existing use designations are realistic and, if not, correct them. Doing so will help to ensure that the prohibition against removing "existing uses" in 40 CFR §131.10(h)(1) does not serve as an impediment to properly "right-grading" uses through the UAA process.
Response

08/04/2015 05:01 PM EDT 2-241Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.d 5.d: Section B 5.d: Section C 

# Comment ID 0202-A2.001.009
Author Name: Frederick Kevin Organization: Wyoming Department of Environmental Quality/Water Quality Division Existing Uses Clarification Since 131.10(g) includes language describing that states can remove a designated use that is not an existing use and proposed revisions to 131.10(k)(2) describes that states are not required to conduct a UAA when "The State wishes to remove a designated use that is not specified in section 101(a)(2) of the Act," WDEQ/WQD feels it is appropriate to edit the definition of "existing uses" at 131.3(e) to clarify that existing uses only apply to 101(a)(2) uses. Without this clarification, states may have a more difficult time removing non-101(a)(2) designated uses when they were an existing use at some point on or after November 28, 1975, but are not currently an existing use. For example, a stream or lake was used as a drinking water supply sometime on or after November 28, 1975, but is no longer used as a drinking water supply. A State may want to remove this use, but the regulations do not explicitly state that a state can remove an "existing use" that is not a 101(a)(2) use.
Response For response to this comment, see the following response essay(s): 5.d 5.d: Section C 

# Comment ID 0203-A1.001.007
Author Name: Christman Jim Organization: Hunton & Williams on behalf of Utility Water Act Group 1. Existing Uses Are Protected by the Regulations Already Judging from the preamble discussion of designating uses, EPA is concerned that the states, when downgrading a fishable use because (for example) coldwater fish cannot live in the water, may neglect to protect warmwater species that do live in the waterbody despite current water quality problems that affect different species. But, in this example, warmwater fish already live in the water, and EPA's regulations, particularly 40 C.F.R. § 131.10(h)(1), already require states to preserve "existing" uses. So in this sense, EPA's proposed changes are not needed. EPA's concern is

08/04/2015 05:01 PM EDT 2-242Chapter 2 - Comment Documents Designated Uses addressed by 40 C.F.R. § 131.10(h)(1) and antidegradation policies that protect existing uses. It would be more productive for EPA to focus on how "existing" uses are designated. EPA has acknowledged that such designations are difficult and often flawed. See, for example, 63 Fed. Reg. 36,742, 36,751 (July 7, 1988). The risk of flaws is compounded by the fact that (1) EPA's "look-back" date of November 28, 1975, is completely arbitrary from a water quality perspective; (2) many states historically designated uses without regard to attainability; and (3) reliable records regarding existing uses are often incomplete or unavailable. To mitigate this risk, EPA should encourage states to revisit whether their existing use designations are realistic and, if not, correct them.
Response For response to this comment, see the following response essay(s): 5.d 5.d: Section B 5.d: Section C 

# Comment ID 0205-A1.001.007
Author Name: Burd Charlie Organization: Independent Oil and Gas Association of West Virginia Inc. Finally, IOGA-WV notes that these "clarifications" are simply unnecessary because to the extent that a use is an existing use, it will be protected through the implementation of a state's antidegradation policy.
Response For response to this comment, see the following response essay(s): 5.d 5.d: Section C 

# Comment ID 0222-A1.001.009
Author Name: Modeer David Organization: Western Urban Water Coalition The Preamble discussion of "existing uses" is unclear. The Preamble states "[t]he current regulation at § 131.10(g) and (h)(1) provides that state and tribes may not remove a designated use if it would also remove an existing use unless a use requiring more stringent criteria is added." However, EPA has previously stated, in 2008 correspondence from EPA's Denise Keehner (as referenced in the Preamble), that "[s]tates and tribes are not bound by their designated use

08/04/2015 05:01 PM EDT 2-243Chapter 2 - Comment Documents Designated Uses classification categories when describing existing uses," and in some cases, "the uses and water quality actually achieved may be less protective than the designated uses assigned to the water body." Letter from Denise Keehner, Director of the EPA Standards and Health Protection Division to Mr. Derek Smithee (Sept. 5, 2008) available at http://water.epa.gov/scitech/swguidance/standards/upload/Smithee-existing-uses-2008-09 - 23.pdf. Thus, it appears that so long as the state's or tribe's identified existing use is maintained, the state or tribe should be free to remove or modify the designated use without any need for a UAA. After all, "a state or tribe may adopt an existing use as the designated use where it is the highest attainable use." Id. The Preamble should be clarified to reflect the Keehner policy. For example, the Preamble could include a sentence that provides: "A state or tribe may, nevertheless, remove or modify a designated use without performing a UAA if the existing use continues to be protected or the state or tribe simply adopts the existing use as the designated use."
Response For response to this comment, see the following response essay(s): 5.d 5.d: Section B 

# Comment ID 0228-A2.001.009
Author Name: Conn Rachel Organization: Amigos Bravos An existing use is defined as "those uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards" 40 CFR 131.3(e). Neither the NM HP nor the associated NM Expedited UAA provides adequate analysis of existing uses. This, at a minimum, would involve speaking to local landowners and local, state, or federal land management representatives about historical (1975-Present) conditions of the stream. Land use practices (both current and historic) should be documented and their impact on the conditions of the stream should be examined. In addition, historic flow data could be collected if available, or the watebody in question could be examined for signs that uses, that while they may not currently be occurring, occurred since1975. By only examining the current conditions in the stream the NM HP/ Expedited UAA cannot make a determination whether the 101(a)(2) uses are existing uses.
Response For response to this comment, see the following response essay(s): 5.d 5.d: Section B 

# Comment ID 0234-A2.001.019

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Author Name: Andes Fredric Organization: Federal Water Quality Coalition In addition, the attainability of existing uses should be evaluated.
Response For response to this comment, see the following response essay(s): 5.d 5.d: Section B 

# Comment ID 0236-A2.001.005
Author Name: Weigel Brian Organization: Wisconsin Department of Natural Resources Existing Uses WDNR supports the following clarifications; however, although these are referenced in the background text it is not clear that they are reflected in the actual regulatory language updates. If EPA intends to clarify these points, they should be incorporated into the regulatory language.

•Existing uses are known to be "attained" when both the use and the water quality necessary to support the use has been achieved.

•In cases where data needed to determine whether a use is "existing" are limited, states/tribes have discretion to determine whether an existing use has been attained.

•The prohibition on removing uses doesn't apply to cases where removal of a use would, a) improve the condition of a waterbody or, b) make the waterbody more like its minimally impacted state. This clarification is very useful for effluent dominated streams. An example: a stream's original Fish & Aquatic Life use was warmwater, but a facility discharged cold effluent resulting in a coldwater stream. If the facility changes hands to a different type of industrial process, now discharging warm water, it is reverting to its more natural use, which would be allowable under this clarification. Recommended change: WDNR requests that EPA consider an issue presented by the current definition of "existing" uses and the prohibition on conducting a UAA for "existing" uses that no longer exist in actuality. By defining an existing use as any use that has been attained at any time since Nov. 28, 1975, and by prohibiting UAAs to modify any such waters' uses, EPA creates a category of waters for which their designated uses are unrealistic/unattainable. For instance, it is Wisconsin's understanding that waters which four decades ago were in a relatively natural state, but have since been impacted by irreversible changes such as intense urbanization or dam construction, are currently ineligible for UAAs. Therefore, they are considered impaired and put on the impaired waters list, with no realistic chance at

08/04/2015 05:01 PM EDT 2-245Chapter 2 - Comment Documents Designated Uses restoring them to previous uses. Regulations should be changed to recognize that a UAA and modified use should be appropriate for these waterbodies, in recognition that the state does not expect them to attain the same level of use as they would have attained in the 1970s. While it is understandable that the initial intent of this language was to protect existing uses, the reality is that some waters have been impacted since the 1970s and the state should be able to modify expectations for those waters. Therefore, WDNR specifically recommends that EPA: a) reevaluate the definition of existing use, when that use is no longer being attained, and/or b) specify that for cases where the old existing use is no longer attained, and the current Highest Attainable Use is lower than the old existing use, a UAA is allowed to create a modified/limited use for that water.
Response For response to this comment, see the following response essay(s): 5.d 5.d: Section A 5.d: Section B 5.d: Section C 

# Comment ID 0237-A2.001.002
Author Name: Tucker James Organization: Idaho Power Company 1.The Preamble for the proposed rule recognizes that designated uses are management objectives of the states and tribes, to be set by the state or tribe, and not EPA. For example the preamble to the proposed rule states: Designated uses communicate a state's or tribe's environmental management objectives for its waters and drive on-the
ground water quality decision-making and improvements. 78 Fed. Reg. at 54522 (emphasis added). ** Existing uses are known to be ‘‘attained'' when both the use and the water quality necessary to support the use has been achieved. The EPA recognizes, however, that all the necessary data may not be available. Where data may be limited, inconclusive, or not available, states and tribes have discretion to determine whether an existing use has been attained, based on either the use or the water quality. 78 Fed. Reg. at 54523 (emphasis added) (footnote omitted). EPA should include this language in the final rule to clarify that EPA's only role in the designation of uses is to ensure the states and tribes, in setting their management objectives and designating beneficial uses, comply with the CWA and recognize that the states and tribes have discretion in determining whether an existing use has been attained where data is limited or inconclusive. In the absence of this inclusion and clarification, the proposed changes could be interpreted as limiting the discretion of the states and tribes, or worse, transferring their authority to EPA.

08/04/2015 05:01 PM EDT 2-246Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.d 5.d: Section B 

# Comment ID 0251-A2.001.007
Author Name: Wigal Jennifer Organization: Oregon Department of Environmental Quality The rules and the preamble should further clarify that incidental or opportunistic temporary presence of one or a few individuals does not constitute an existing use or require the designation of that use in the water body, and that refinement of uses or sub-categories of uses are not required to be identified at a single species level. Developing rules for uses and associated water quality criteria at this level of specificity and at this scale is simply impractical from a resource and technical capability perspective.
Response For response to this comment, see the following response essay(s): 5.d 5.d: Section C 

# Comment ID 0268-A2.001.007
Author Name: Bell Nina Organization: Northwest Environmental Advocates EPA goes on to discuss the requirement that existing uses be maintained in any effort to change use designations. It makes the barest mention of situations where "necessary data may not be available" and then moves on. While we agree with the subsequent point that the prohibition on removing existing uses is not intended to preclude improving the waterbody, such as with dam removal, we do not agree that EPA has provided, in this document or any other, sufficient guidance to states about identifying and protecting existing uses. Existing uses are the "absolute floor" of water quality, as EPA likes to repeat, see, e.g., , EPA, Questions and Answers on: Antidegradation 4 (August 1985), but EPA has failed to take the most basic steps to ensuring that states establish this floor and do not fall beneath it. Instead, it is likely that every state in the union has experienced extirpations, likely extensive extirpations, of aquatic life uses that drop use protection below the "absolute floor." For examples one need merely look at the status of amphibians whose populations are plummeting, including those that have not been listed as threatened or endangered under the Endangered Species Act or identified as candidate species. Yet there is not a state that has extensive data on water quality and/or species populations and their distribution that is pinpointed to November 28, 1975, a date that for many

08/04/2015 05:01 PM EDT 2-247Chapter 2 - Comment Documents Designated Uses species would represent a high point in their population status. In the absence of those data and the absence of a serious and clear policy by EPA on how to identify those existing uses, this key provision is simply ignored in nearly every regulatory action states take, whether in issuing 303(d) listings, TMDLs, NPDES permits, or 401 certifications. Many states take the position that anecdotal information cannot be used where data are not available, thereby entirely undermining the floor that EPA has purportedly established. Moreover, in this rulemaking EPA declines to require states to establish by rule their antidegradation implementation methods to ensure that existing uses are identified and protected, thereby passing up an opportunity to close this huge loophole. Instead, states and EPA will continue to – at best – give lip service to protection of existing uses and to the extent that protection exists it will remain a paperwork exercise. As a result, species will continue to be extirpated and driven into extinction, contrary to Congressional intent, the best interest of the public, and the interests of the environment.
Response For response to this comment, see the following response essay(s): 5.d 5.d: Introduction 5.d: Section B 7.l 

# Comment ID 0278-A2.001.008
Author Name: Hornback Chris Organization: National Association of Clean Water Agencies NACWA also believes that this proceeding gives EPA the perfect opportunity to reconsider the current restrictions against the removal of "existing uses." While we certainly support the concept of protecting such uses, the practice for doing so is anything but clear. EPA has long acknowledged that the designation of "existing uses" is a difficult and often flawed process. See, e.g., 63 Fed. Reg. 36742, 36751 (July 7, 1998) ("Determining whether or not an existing use has occurred in the past or is currently in place is not always a straightforward task, ... and over the years, a number of questions have been raised about exactly what the ‘existing use' provisions in [40 CFR §] 131.10 require."). This difficulty is compounded by the arbitrary November 28, 1975 look-back date; the reality that following the Water Quality Act of 1965, many states designated uses without regard to their attainability; and perhaps most importantly, the fact that reliable records from which to gauge whether uses were "actually attained" are commonly incomplete or unavailable. Given the acknowledged problems with determining "existing uses," we believe that EPA should use the proposed regulatory clarifications to encourage states to evaluate whether their "existing uses" are realistic and, if not, to correct them so that the "existing use" floor does not serve as an impediment to otherwise appropriate "right-grades" of uses.
Response

08/04/2015 05:01 PM EDT 2-248Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.d 5.d: Section B 5.d: Section C


# 5.E - DU - DEFINITIONS/TERMS Comment ID 0126-A2.001.002
Author Name: Barry Marie Organization: Washoe Tribe of Nevada and California 131.10(g) CFR 54523 The proposed language does not include "Tribes" which should be included unless "State" means states, tribes, and territories.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0127-A1.001.006
Author Name: Sawtelle Andrew Organization: NA Two questions were consistently raised during the listening sessions conducted in 2010 - what precisely is meant by "highest attainable use", and when states and tribes are required to assess a waterway to determine its highest attainable use. The definition of "highest attainable use" added at § 131.3(m) defines the term in plain language and with explicit reference to the uses specified in CWA § 101(a)(2).
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0128-A1.001.003

08/04/2015 05:01 PM EDT 2-249Chapter 2 - Comment Documents Designated Uses
Author Name: Boon Richard Organization: California Stormwater Quality Association B. Designated Uses CASQA appreciates the clarifications being proposed to the process for designating and modifying beneficial uses through Use Attainability Analyses (UAA). In order for water quality standards, Total Maximum Daily Loads (TMDLs), and associated permit limits to work, the entire system must be based on accurate and attainable uses. Otherwise, resources are wasted trying to meet standards that cannot be attained. However, too often the process for evaluating and modifying beneficial uses has been challenging and unworkable, particularly in California. CASQA supports the efforts by USEPA to ensure that beneficial use evaluations and UAAs are considered a valid and important part of the standards setting process. To support the use of UAAs, CASQA requests that USEPA consider a modification to the definition of a UAA in 40 C.F.R. §131.3(g) to allow flexibility in the level of effort necessary to justify a UAA. For example, where a channel is concrete-lined, a State should be able to designate, without expensive studies and reports, that section 131.10(g)(4) applies and hydrologic modifications prevent the attainment of a full suite of aquatic life uses. A State should then be able to re-assign a sub-category of aquatic life use(s) that can survive in the modified environment of a concrete-lined channel. Similarly, where other conditions, such as low flow or improper substrate exist, a State should be able to merely present those facts with supporting evidence and rely on section 131.10(g)(2) or (5) without the need for a complicated scientific study. This type of flexibility and these types of adjustments should be discussed and encouraged. The triennial review process would then be used to change uses in the future if the underlying reasons for the use modification no longer existed (e.g., concrete was removed from the channel through a stream restoration project).

Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0129-A2.001.007
Author Name: Steidel Robert Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc. 2. Designated Uses We understand EPA's proposed modifications concerning designated uses to primarily address (1) the inclusion of a specific requirement to identify and require the Highest Available Use (HAU), a defined term, whenever a state considers the removal of a designated use or a use sub-category; and (2) clarifications as to when a Use Attainability

08/04/2015 05:01 PM EDT 2-250Chapter 2 - Comment Documents Designated Uses Analysis (UAA) is and is not required. In identifying the HAU the proposed change specifies that the state may either utilize its current use categories or sub
categories, develop new use categories or subcategories, or adopt another location-specific or other available use. From the Preamble, we understand these options to be non-exclusive, 78 Fed. Reg. at 54524, and that the states are free to use other approaches. We recommend that the regulation itself in section 131.10(g) specifically refer to these approaches as "non-exclusive" in order to permit the states to handle possible designated use changes as effectively as possible. With the recommended change above, VAMWA supports EPA's proposed amendments.

Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0131-A1.001.008
Author Name: Rager David Organization: Sanitation District Number 1 of Northern Kentucky Comment 1 - The definition of "highest attainable use" is ambiguous and should be removed until the use of the Clean Water Act's use attainability analysis (UAA) provisions is more widespread and results in decisions about water quality investments that are affordable and yield tangible water quality improvements. In § 131.3(m), EPA is proposing to add a new definition of highest attainable use as "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in § 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g)." This definition should not be added until EPA has completed discussions with stakeholders about financial capability [FN1] and EPA has completed a Report to Congress on national progress about the success (or lack of success) regarding how States and EPA have implemented the Clean Water Act's UAA provisions. There is considerable ambiguity in this definition. The phrase "best available data" is an undefined concept, and lacks an established standard for regulatory agencies to rely on when performing or reviewing a UAA. We note that EPA has historically made it difficult for states or regulated parties to pursue UAAs. For example, Indiana's water quality standards were changed to allow communities with acceptable long-term control plans to submit UAAs. This was an important change because those communities have committed to spending millions, and in some cases billions, of dollars to control combined sewer overflows. The standards' change was needed so that these communities would be in compliance with the Clean Water Act after investing those resources. To date, the state and EPA have not approved any of the submitted UAAs that the communities prepared.

08/04/2015 05:01 PM EDT 2-251Chapter 2 - Comment Documents Designated Uses With the exception of one UAA in California (Ballona Creek, CA), EPA has refused to acknowledge that safety is a consideration as to whether primary contact recreation is an appropriate recreational use. This means that communities must treat discharges to protect for swimming even if swimmers would risk bodily injury during high flows or dangerous conditions. There have also been numerous instances of consent decree negotiations where EPA and the community cannot agree on affordability findings, even though affordability is explicitly identified as an acceptable UAA factor in § 131.3(g)(6). The ambiguous definition of highest attainable uses proposed by EPA will further complicate agency review and approval of UAAs, as it leaves open to interpretation what constitutes an adequate dataset (in terms of requisite data, number of samples, temporal spacing of samples, methodologies, and other related factors). EPA states in the proposed rulemaking that "[i]f new information becomes available during a triennial review to indicate that a use higher than what is currently designated is attainable, states and tribes should revise their WQS to reflect the HAU." In the past, EPA has not allowed states or communities to designate an attainable (for the foreseeable future) use because of incorrect perceptions about use "removal" or "downgrading" uses. Instead, EPA promotes limited use of variances for situations, even when it is clear that a lower use is both appropriate and attainable, and states are expected to "upgrade" their uses if new information shows that a higher use can be attained. SD1 believes that until EPA demonstrates they are willing to approve UAAs that have been appropriately developed according to existing regulations, this new definition will be an obstacle as opposed to serving the stated purpose. [FN1] Nancy Stoner and Cynthia Giles to Regional Administrators, Regional Water Division Directors, and Regional Enforcement Division Directors, January 18, 2013, "Assessing Financial Capability for Municipal Clean Water Act Requirements".

Response For response to this comment, see the following response essay(s): 5.e 12.a 

# Comment ID 0133-A2.001.003
Author Name: Phillips Sanford Organization: Louisiana Department of Environmental Quality 2. Designated Uses

a. LDEQ does not agree with the establishment of "Highest Attainable Use" definition and associated regulatory language; current language regarding "attainable" uses is sufficient.

08/04/2015 05:01 PM EDT 2-252Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0147-A2.001.002
Author Name: Gaskin David Organization: Nevada Division of Environmental Protection [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] Proposed Revisions to: § 131.10 Designation of Uses Nevada is supportive of efforts to clarify that states are expected to adopt the most appropriate beneficial uses into their water quality regulations. However, use of the term Highest Attainable Use (HAU) is not appropriate and can be misleading. This term suggests that there is a hierarchal relationship among the uses. While this may be the case in some instances, often uses are simply different. We offer the following suggested revision. Suggested revision: § 131.3(m) [begin strikeout] Highest attainable use is the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in 131.3(g). [end strikeout]
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0149-A2.001.011
Author Name: Michael Gene Organization: City of Pueblo Wastewater Department 5. Clean Water Act 101(a)(2) uses. In the preamble to the Proposed Rule, EPA asserts that the phrase "uses specified in section 101(a)(2) of the Act" includes "the protection of human health when consuming fish, shellfish, and other aquatic life." This appears to be based on the common practice of referring to the 101(a)(2) uses as the "fishable/swimmable" uses. However, section 101(a)(2) does not contain the word "fishable" or otherwise refer in any way to the consumption of fish. Instead, it

08/04/2015 05:01 PM EDT 2-253Chapter 2 - Comment Documents Designated Uses establishes the national objective to achieve "whenever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the water." Therefore, there is no basis to include fish consumption as a consideration under Section 101(a)(2) of the Act. EPA should remove references to the protection of human health when consuming fish, shellfish, and other aquatic life as "uses specified in section 101(a)(2) of the Act" from the preamble to the final rule.

Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0150-A1.001.005
Author Name: Heisig-Mitchell Jamie Organization: Hampton Roads Sanitation District Designated Use HRSD supports the inclusion of a specific requirement to identify and require the Highest Attainable Use (HAU) whenever a state considers the removal of a designated use or a use sub-category. This will clarify that a Use Attainability Analysis (UAA) does not remove a use but rather refines a use to more accurately reflect the most appropriate and attainable level of waterbody protection.

Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0151-A1.001.003
Author Name: Tate Michael Organization: Kansas Department of Health and Environment 1) Designated Uses and Highest Attainable Use – The proposal to require adoption of the highest attainable use when, as a result of a Use Attainability Analysis, one of the 101(a)(2) uses is not attainable suggests a State use its existing subcategories, develop such subcategories or adopt a location-specific use. None of these situations exist in Kansas and we cannot support the proposed language as it offers no assistance to us. In Kansas, we have a solitary aquatic life support use, defined as: "use of classified surface waters ... for the maintenance of the ecological integrity of [streams],

08/04/2015 05:01 PM EDT 2-254Chapter 2 - Comment Documents Designated Uses lakes, wetlands, and ponds, including the sustained growth and propagation of native aquatic life; naturalized, important, recreational aquatic life; and indigenous or migratory semi-aquatic or terrestrial wildlife directly or indirectly dependent on classified surface waters other than classified stream segments for survival." While we do distinguish aquatic life support use as Special, Expected or Restricted, these categories share the same narrative and numeric criteria and only differentiate the amount of mixing zone available to NPDES dischargers. When we conduct an UAA for aquatic life support, aquatic biologists visually assess the presence of fish, aquatic insects and/or mollusks. The criteria associated with aquatic life are applied state-wide; there is no distinction among aquatic communities or type of water body. Therefore, determination of the aquatic life support use is a binary decision revolving around the presence of water. Ephemeral streams are not considered classified waters and not subject to the designated uses or numeric criteria of the water quality standards. A UAA determines the hydrologic support of a stream and if it is lacking, declares the stream as ephemeral and unclassified, citing 40 CFR 131.10(g)(2): "Natural, ephemeral, ...conditions or water levels prevent the attainment of the use,..." and 40 CFR 131.10(g)(5): "Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic life protection uses;". In that situation, there is no aquatic life or recreation use applied to the stream and there is no remaining use to fall back on. Conversely, any intermittent or perennial stream has aquatic life and either primary or secondary (depending on available depths) recreation applied. The one designated use that may or may not be present is Food Procurement, defined as, "use of classified surface waters for the obtaining of edible forms of aquatic or semi-aquatic life for human consumption." EPA's interpretation of 101(a) (2) includes food procurement with aquatic life and recreation. KDHE performs the UAA through "visual or recorded evidence of fishing, consumption of crawfish, mussels or aquatic macrophytes, or waterfowl hunting activities (based on on-site observation) or which were used for this purpose on or after November 28, 1975 (based on interviews with streamside landowners or other knowledgeable individuals)." There are numerous examples where such evidence is lacking and food procurement is not a designated use for that water body, typically citing 40 CFR 131.10(g)(5). Again, there is no fall back category to cover diminished food procurement attainment, although the aquatic life use remains in force. It is a presence/absence determination and no sub-categorization can provide relief from the reality of nonexistent biota. We suggest that States, who do establish subcategories or tiers, currently apply those alternatives to their waters when confronted with an unattainable aquatic life or recreation situation. Conversely, States, such as Kansas, with no detailed sub-categorization, have no outlet to provide for the "highest attainable use" and simply make the case that the use doesn't exist because the water doesn't exist. In either case, there is no utility or need for the suggested solution provided by EPA. EPA would be better served by working with each State to apply the State's proper and existing use categories to specific waters without invoking a process to garner status to the next best use.
Response For response to this comment, see the following response essay(s): 5.e

08/04/2015 05:01 PM EDT 2-255Chapter 2 - Comment Documents Designated Uses 

# Comment ID 0153-A2.001.005
Author Name: Bishop Jonathan Organization: California State Water Resources Control Board B. The "highest attainable use" concept and its proposed definition. The State Water Board supports EPA's objective of ensuring states identify remaining highest attainable 101(a)(2) uses or subcategories contemporaneous with limiting or removing a 101(a)(2) as part of a use attainability analysis (UAA) process. EPA proposes to amend section 131.10(g) to require states to adopt the "highest attainable use" (HAU) where a state demonstrates as part of the UAA that a 101(a)(2) use is not attainable. (78 Fed. Reg. 54522, cols. 1, 2.) EPA proposes to add paragraph (m) at section 131.10 to define HAU as: "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g)." (Id., 54543, col. 3.) The phrase "closest to" in the proposed HAU definition at section 131.3(m) (78 Fed. Reg. 54543, col. 3) may not completely capture the concepts of "most sensitive" or "next best" uses as described in the preamble. Additionally, the proposed definition for HAU does not explicitly capture the range of EPA's interpretation of 101(a)(2) uses contained in the preamble. (Id., 54522, col. 3.) The definition appears to limit the meaning of HAU by expressly tying the phrase "aquatic life, wildlife, and/or recreational uses" to the 101(a)(2) uses and because it omits EPA's previous explanation that 101(a)(2) uses include "consumption of fish and shellfish." (Id., 54522, col. 3.) The State Water Board recommends that EPA's definition of HAU be more explicit concerning its interpretation of "closest to the uses specified in section 101(a)(2) of the Act."
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0156-A1.001.006
Author Name: Jackie Kepke Adam Link Organization: California Association of Sanitation Agencies and Tri-TAC The proposed modifications also provide that where a State or tribe adopts new or revised water quality standards based on a UAA, it must adopt the Highest Attainable Use (HAU). (FR 54522, 40 CFR section 131.10(g).) CASA and Tri-TAC originally commented that it is not always clear what the "highest attainable use" would be, and we appreciate

08/04/2015 05:01 PM EDT 2-256Chapter 2 - Comment Documents Designated Uses that the proposed clarification includes a definition of HAU at section 131.3(m) as follows: "Highest attainable use is the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g)." However, CASA and Tri-TAC remain concerned regarding how the HAU, as defined, will be implemented if it is based on the UAA (40 CFR 131.10(g)) factors. The UAA factors are written in the negative, meaning the context for their use is an effort to demonstrate why a use cannot be met. This is essentially the opposite of designating an attainable use, and could lead to significant confusion. Thus, CASA and Tri-TAC recommend that USEPA either: (1) provide a significant number of examples describing exactly how this is intended to work using each factor, or (2) modify the language of the HAU to place it in its proper context. At a minimum, we request that USEPA include multiple examples in the preamble describing precisely how a HAU would be determined using the UAA factors.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0157-A1.001.012
Author Name: Harpole Chad Organization: Kentucky Chamber of Commerce Designated Uses -- 40 CFR 131.10 Under 40 CFR 131.1(g), EPA is proposing to require states that remove a designated use through a use attainability analysis to "also adopt the highest attainable use and the criteria to protect that use." In the definitions at 40 CFR 131.3(m), the highest attainable use would be defined as the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in Section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in Section 131.3(g). The concept of establishing the highest attainable use ("HAU") is also a component of a water quality standard variance under 40 CFR 131.14. The proposed mandate for states to adopt the HAU and supporting criteria is overly burdensome and unnecessary. As to the burden, establishing water quality criteria to support full uses, such as aquatic life and primary contact recreation, is difficult even with the existence of EPA's recommended criteria. How will states be expected to develop numeric water quality criteria, a scientific undertaking, for a subset of aquatic life or for less than full primary contact recreation use of a receiving water? The requirement to use the "best available data and information" to establish the highest attainable use supporting criteria illustrates this will be a major undertaking and will only serve to dissuade states from attempting to conduct UAAs or to grant variances in situations where they are warranted. This requirement would also likely lead to litigation over whether the highest attainable use was properly selected, as well as whether the criteria for protecting the highest attainable use were properly established as numeric and/or narrative standards. If this proposal is

08/04/2015 05:01 PM EDT 2-257Chapter 2 - Comment Documents Designated Uses adopted, before removing a use, the state would have to conduct a UAA for the use to be removed and a UAA for the highest attainable use to be determined. The concept of HAU designations is also unnecessary because in the instance where a UAA is based upon a demonstration that attaining a use would result in substantial and widespread economic and social impact, or where a variance is granted on those grounds, states would still impose technology-based limitations since the demonstration to remove or delay attainment of a use cannot be made where cost-effective treatment is available. Similarly, as proposed, a variance would require a specific permittee to meet the numeric effluent limitations that prevent any lowering of current water quality during the variance period. Nothing in the Act appears to mandate that states develop such subcategories of uses and the criteria necessary to support those uses. Therefore, the HAU concept is another intrusion on state flexibility and authority over determination of use and value of waters.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0158-A1.001.013
Author Name: Goodmann Peter Organization: Kentucky Division of Water [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 3) Designation of Uses EPA's current antidegradation policy at §131.12(a)(1) requires existing uses and water quality necessary to protect existing uses shall be maintained and protected. §131.12(a)(2), regarding high quality waters, provides that water quality may be degraded only if necessary to accommodate important economic or social development, and existing uses shall be protected. EPA proposes to add a requirement that a State, if seeking to remove a use through a Use Attainability Analysis (UAA), must also adopt the Highest Attainable Use (HAU) and criteria to protect the HAU. KDOW supports the concept of evaluating and adopting WQS that include attainable uses and reflect achievable water quality conditions in the course of developing a use attainability analysis (UAA). However, KDOW has several concerns with the introduction of the concept of "highest attainable use" (HAU). The concept of HAU goes beyond protecting existing uses. HAU is an entirely new policy for which there is no support in the Act. The proposed changes introducing this concept impose new and increasingly burdensome responsibilities on States. States must not only conduct a 'structured scientific assessment' of factors affecting attainment of designated uses, but must conduct another 'structured scientific assessment' to determine the HAU. Additionally, the proposed HAU would further burden states to develop separate criteria for each HAU. The concept and the proposed language

08/04/2015 05:01 PM EDT 2-258Chapter 2 - Comment Documents Designated Uses also include inherent ambiguities. For example, what constitutes "closest to" 101(a)(2) uses, and who determines what is the "best available data"? EPA's statements regarding HAUs also assume a hierarchical relationship among uses, which in some cases may be accurate, but frequently, uses are simply different. Finally, although it is not discussed in EPA's proposal, where a HAU is established for a waterbody pursuant to a use attainability analysis, a high quality antidegradation review analysis could be required thereafter for that newly established use for proposed new or expanded discharges even though the waterbody is partially impaired for the full use, further adding to the burden on the State. Assuming EPA proceeds with the proposal, EPA should clarify that high quality antidegradation review is not required in states that apply antidegradation review on a waterbody-by-waterbody basis with respect to a "highest attainable use" and the supporting criteria that are established after a UAA or variance. EPA's goals would be better served by deleting the term "highest" and focusing more appropriately on the desired outcome of the UAA process: designation of appropriate uses that are attainable and protective water quality conditions. KDOW's suggests §131.3(m) be stricken: [begin strikeout] "§131.3(m) Highest attainable use is the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in 131.3(g)." [end strikeout]
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0160-A2.001.019
Author Name: West Jeff Organization: Xcel Energy 5. Clean Water Act 101(a)(2) uses. In the preamble to the Proposed Rule, EPA asserts that the phrase "uses specified in section 101(a)(2) of the Act" includes "the protection of human health when consuming fish, shellfish, and other aquatic life." This appears to be based on the common practice of referring to the 101(a)(2) uses as the "fishable/swimmable" uses. However, Section 101(a)(2) does not contain the word "fishable" or otherwise refer in any way to the consumption of fish. Instead, it establishes the national objective to achieve "whenever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the water." Therefore, there is no basis to include fish consumption as a consideration under Section 101(a)(2) of the Act. EPA should remove references to the protection of human health when consuming fish, shellfish, and other aquatic life as "uses specified in section 101(a)(2) of the Act" from the preamble to the final rule.
Response

08/04/2015 05:01 PM EDT 2-259Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0165-A2.001.002
Author Name: Gunderson Steven Organization: Colorado Department of Public Health and Environment OVERARCHING ISSUES There are two issues that Colorado would like to raise. While not specific to proposed rule language, they are integral to the administration of State WQS programs.
1. The National Water Quality Goals in 101(a)(2) Do Not Include Protection of Human Health. The preamble of the proposed rules states: By "the uses specified in section 101(a)(2)" EPA means the uses and functions encompassed within the CWA section 101(a)(2) such as aquatic life support, wildlife support, consumption of aquatic life and recreation (emphasis added). CWA Section 101(a)(2) states it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish and wildlife and provides for recreation in and on the water be achieved by July 1, 1983. Colorado agrees that human-health protection is a very critical aspect of the Clean Water Act protections. As part of a state health department we are committed to protecting human health in all that we do and Colorado's WQS framework includes both water supply and fish ingestion uses. Water quality criteria are developed and implemented to protect both of these uses in Colorado. However, consuming fish is not a 101(a)(2) use. EPA has expanded the 101(a)(2) uses in a way that is not supported by the plain language of the statute. The fact that EPA has advocated this interpretation in the past does not compensate for the fact that it is not supported by the plain language of the statute. It is still an incorrect reading of the statutory language and should be removed from the preamble of the final rule. 101(a)(2) and the extra requirements that accompany that provision cannot be extended to human-health protection.
Response For response to this comment, see the following response essay(s): 5.e

08/04/2015 05:01 PM EDT 2-260Chapter 2 - Comment Documents Designated Uses 

# Comment ID 0165-A2.001.005
Author Name: Gunderson Steven Organization: Colorado Department of Public Health and Environment 4. Designated Uses - Adoption of Highest Attainable Use ("HAU") Colorado does not support EPA's proposal to require that the HAU be adopted when a 101(a)(2) use is removed. While we understand EPA's intent to ensure that the next highest, yet attainable, aquatic life or recreational use is protected, this proposed provision is too ambiguously written and will cause confusion between stakeholders, the states, and EPA Regional offices. Most importantly, such a provision is unnecessary in Colorado. Colorado's Basic Standards and Methodologies for Surface Water (Regulation #31, see 31.6(1)(e)) requires that "classifications [FN1] should be for the highest water quality attainable". This Colorado provision accomplishes EPA's intent without the ambiguity regarding how many use sub-classifications will be required. [FN1] In Colorado, Classifications and Uses are synonymous.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0166-A2.001.013
Author Name: Goodmann Peter Organization: Kentucky Division of Water [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 3) Designation of Uses EPA's current antidegradation policy at §131.12(a)(1) requires existing uses and water quality necessary to protect existing uses shall be maintained and protected. §131.12(a)(2), regarding high quality waters, provides that water quality may be degraded only if necessary to accommodate important economic or social development, and existing uses shall be protected. EPA proposes to add a requirement that a State, if seeking to remove a use through a Use Attainability Analysis (UAA), must also adopt the Highest Attainable Use (HAU) and criteria to protect the HAU. KDOW supports the concept of evaluating and adopting WQS that include attainable uses and reflect achievable water quality conditions in the course of developing a use attainability analysis (UAA). However, KDOW has several concerns with the introduction of the concept of "highest attainable use" (HAU). The concept of HAU goes beyond protecting existing uses. HAU is an entirely new policy for which there is no support

08/04/2015 05:01 PM EDT 2-261Chapter 2 - Comment Documents Designated Uses in the Act. The proposed changes introducing this concept impose new and increasingly burdensome responsibilities on States. States must not only conduct a 'structured scientific assessment' of factors affecting attainment of designated uses, but must conduct another 'structured scientific assessment' to determine the HAU. Additionally, the proposed HAU would further burden states to develop separate criteria for each HAU. The concept and the proposed language also include inherent ambiguities. For example, what constitutes "closest to" 101(a)(2) uses, and who determines what is the "best available data"? EPA's statements regarding HAUs also assume a hierarchical relationship among uses, which in some cases may be accurate, but frequently, uses are simply different. Finally, although it is not discussed in EPA's proposal, where a HAU is established for a waterbody pursuant to a use attainability analysis, a high quality antidegradation review analysis could be required thereafter for that newly established use for proposed new or expanded discharges even though the waterbody is partially impaired for the full use, further adding to the burden on the State. Assuming EPA proceeds with the proposal, EPA should clarify that high quality antidegradation review is not required in states that apply antidegradation review on a waterbody-by-waterbody basis with respect to a "highest attainable use" and the supporting criteria that are established after a UAA or variance. EPA's goals would be better served by deleting the term "highest" and focusing more appropriately on the desired outcome of the UAA process: designation of appropriate uses that are attainable and protective water quality conditions. KDOW's suggests §131.3(m) be stricken: [begin strikeout] "§131.3(m) Highest attainable use is the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in 131.3(g)." [end strikeout]
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0167-A1.001.006
Author Name: Anderson Paul Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District B. Designated Uses The Lower Fountain appreciates the CWA goals and supports reasonable measures and methods to attain the stated goals within Section 101(a)(2). If the proposed rule were simply limited to EPA's summary as set forth under Section C.1. of the proposed rule (at p. 54522, first column), that would be sufficient and acceptable. The District submits certain portions of EPA's "Background" and "Rationale for Revision - Adoption of Highest Attainable Use" subsections (Sections C.2 and C.3, pp. 54522-24) would result in confusion and further uncertainty while also appearing to authorize states to proceed with adopting new or amended WQS when scientific evidence either doesn't indicate a water quality issue exists or otherwise would not support such standards. In particular, the District finds the following explanation (Section C.2 at p. 54523, first column) troubling:

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"Existing uses are known to be "attained" when both the use and water quality necessary to support the use has (sic) been achieved. The EPA recognizes, however, that all the necessary data may not be available. Where data may be limited, inconclusive, or not available, states and tribes have discretion to determine whether an existing use has been attained, based on either the use or the water quality." (italics in original, underline added) The District does not believe EPA intends, or is otherwise authorizing or encouraging states and tribes, to adopt new or amended WQS when "necessary" supporting evidence is "not available". Stated differently, states and tribes should not be encouraged or authorized to propose or adopt new or amended standards when not all the "necessary" scientific data needed to support the standards has been developed or vetted. The above explanation also appears to contradict itself: It acknowledges "existing uses" are known to be "attained" based on "both use and water quality", but then indicates that states have discretion to determine an existing use "based on either the use or the water quality." This seems to suggest that Colorado and other states can choose to designate a use as attained when current water quality does not in fact support the use, i.e., that a state may designate a use solely based on a "use" made of a water body when such use is at best ill-advised or even reckless (e.g., recreational use or human consumption of waters known to be unsafe for such activity). The Lower Fountain District suggests there should be a reasonable probability that a water body can and will attain a use identified in CWA §101(a)(2), based on "both use and water quality", before a state may adopt a designated use per the CWA, with the onus being on the state or tribe to make that demonstration. Like many states in the west, Colorado has experienced severe drought conditions while simultaneously dealing with an increased demand on water supply. Taking the above explanation to its conclusion, if drought conditions were to continue then all water sources within Colorado could become a water supply source; the District submits this is impractical based on water quality considerations (e.g., natural salinity) and the suitability of developing, treating and delivering various water sources at a reasonable cost. The District thus asks EPA to further clarify its intent as regarding the above explanation.
Response For response to this comment, see the following response essay(s): 5.e 5.d 

# Comment ID 0167-A1.001.007
Author Name: Anderson Paul Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District C. Highest Attainable Use The Lower Fountain also has concerns about EPA's extended explanation regarding "Highest Attainable Use" ("HAU"). Instead of promoting clarity and certainty, the District finds it nebulous; it appears EPA is encouraging, if not requiring, states to adopt a HAU during a triennial review without also conducting a Use Attainability Analysis ("UAA") on the

08/04/2015 05:01 PM EDT 2-263Chapter 2 - Comment Documents Designated Uses following basis (at Section C.3, p. 54524, third column): "If new information becomes available during a triennial review to indicate that a use higher than what is currently designated is attainable, states and tribes should revise their WQS to reflect the HAU." (underline added) The sentence immediately following this statement (states and tribes not required to revise established use categories to allow for more refined designations of higher use) does not seem to change or modify this statement. If as EPA appears to intend the "new information" that supports finding that a use is "attainable" is developed through a UAA or other scientifically reviewed investigation within the watershed, the District requests that this be stated specifically. While water bodies in Colorado may share certain basic characteristics their respective physical locations and conditions often vary (e.g., surface topography, subterranean conditions), even within the same watershed, such that the District submits it would be improper or impractical to use "new information" obtained in one watershed in different watershed. The Lower Fountain District also requests further clarification of the following, which appears just prior to above statement (at Section C.3, p. 54524, third column): "The concept of HAU should not to be (sic) confused with "site-specific criteria." A site-specific criterion is designed to protect the current unchanged designated use, but the criterion value may be different from the statewide or otherwise applicable criterion because it is tailored to account for site-specific conditions that may cause a given chemical concentration to have a different effect on one site than on another." The District would note a HAU may be both a new use designation (or subcategory of the use) and its site-specific standard. From its experience the District has observed that a site-specific criterion, or standard, is developed when site conditions are such that the location at issue, e.g., a specific stream segment, does not meet the otherwise applicable standard per the current designated use; the site-specific standard thus reflects, and at minimum is intended to preserve, the existing water quality condition. In such cases, adoption of a site-specific standard essentially acknowledges that imposing further controls on regulated entities would not lead to improvements of the site-specific water quality. If the District misunderstands when site-specific criteria without a HAU determination should apply, the District would appreciate further clarification and correction by EPA.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0168-A1.001.006
Author Name: Walker Roger Organization: Regulatory Environmental Group for Missouri 4. Highest Attainable Use.

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EPA's proposed rule adds a new definition at §131.3(m) that defines a new term "Highest Attainable Use" and proposes that the Highest Attainable Use be adopted when a State or Tribe adopts or revises its water quality standards based on a Use Attainability Analysis. This proposal will require States to expend limited resources to rebut the presumption (though in practice, we fear States will largely acquiesce and subject many waters to the Highest Attainable Use designations regardless of the actual circumstances of individual water bodies). ). Adopting the highest attainable use designation could then subject permit holders for that body of water to discharge limits at or below background levels in the receiving waters This EPA proposal usurps the authority specifically granted by Congress to States and Tribes to fashion standards "taking into consideration" designated uses under Clean Water Action section 303(c)(2)(A). Indeed, EPA's proposal at 78 Fed. Reg. 54523 readily concedes that Congress explicitly gave States and Tribes the primary authority to craft standards consistent with the CWA. Nothing, however, in the text of the CWA mandates a Highest Attainable Use under all circumstances as EPA's proposal would now for the first time require. Congress specifically gave States and Tribes
- not EPA - the primary role in establishing categories of designated uses and assigning those uses to specific water bodies. EPA does not have the authority to rewrite the Clean Water Act to require a Highest Attainable Use analysis, and the agency cannot by regulation ignore the plain language and intent of Congress. Recommendation: The proposed requirement to adopt the Highest Attainable Use should not be incorporated in the Final Rule.

Response For response to this comment, see the following response essay(s): 5.e 5.k 

# Comment ID 0168-A1.001.008
Author Name: Walker Roger Organization: Regulatory Environmental Group for Missouri 6. Definition of "fishable and swimmable. The readability and clarity of Part 131 would be greatly improved if the regulation were revised to replace nearly all references to section 101(a)(2) with the statement "fishable and swimmable." Moreover, as part of the suggested revision, two new definitions at §131.3 should be added. A new definition for the word "fishable" and a separate new definition for the word "swimmable." Among other things, each of the new definitions should include language explaining how the definition relates to and is derived from Clean Water Act section 101(a)(2). Recommendation: The proposed rule should add separate definitions for "fishable" and "swimmable" as derived from

08/04/2015 05:01 PM EDT 2-265Chapter 2 - Comment Documents Designated Uses the CWA section 101(a)(2) and replace most Part 131 references to "section 101(a)(2)" with the statement "fishable and swimmable."

Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0169-A1.001.010
Author Name: Letient Henri Organization: Teck Alaska Incorporated Although EPA's intent is clear in the preamble to the proposed rule, the proposed definition at 40 CFR 131.3(m) could be misinterpreted to require designation of some pre-anthropogenic, "natural" use that is not actually attainable in the foreseeable future due to one or more of the 131.10(g) factors. Therefore, Teck recommends that EPA add a sentence to the proposed 131.3(m) definition that states that the HAU is not intended to require a water body to achieve any natural, pre-anthropogenic condition in terms of either aquatic life protection or recreational use.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0172-A2.001.002
Author Name: Foster Tad Organization: Tad S. Foster Attorney at Law on behalf of three small municipal dischargers HIGHEST ATTAINABLE USE: The preamble could make the Highest Attainable Use concept more user-friendly by providing more concrete examples of its potential application in the future. For example, it is anticipated that a potential response to 303(d) listings caused by missing macroinvertebrate or fish compared to various indices of healthy populations may be to create a subcategory of the use with a description of the Highest Attainable Use being those species expected and those not. Such subcategory may be justified by demonstrating that species present are consistent with the limited habitat, and that such habitat is naturally occurring or an uncorrectable human caused condition.

08/04/2015 05:01 PM EDT 2-266Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0175-A1.001.008
Author Name: Canton Steven Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. f. The meaning and regulatory import of the statement "where uses specified in section 101(a)(2) are unattainable, it is important that states and tribes still strive to attain uses that continue to serve the purposes of the Act and also enhance the quality of the water," is undefined.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0176-A2.001.006
Author Name: Lazarus Jay Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM) EPA's proposed §131.3(m) should be deleted as states and tribes already conduct UAAs to determine Tier status.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0176-A2.001.008
Author Name: Lazarus Jay Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM) DPNM supports EPA's proposal that states and tribes are not required to develop new use categories or subcategories to meet the HAU requirement.

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Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0178-A2.001.003
Author Name: Burnell Barry Organization: Idaho Department of Environmental Quality The definition of highest attainable use is problematic for reasons explained below and should be dropped.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0178-A2.001.005
Author Name: Burnell Barry Organization: Idaho Department of Environmental Quality Highest attainable use could be seen by some as reason to disallow any use change that allows water quality conditions that are less than current conditions, even though a use change is justified based on CFR 40 §131.10(g) factors, essentially usurping the function of antidegradation. Even when changing from one 101(a)(2) use to another, our concern is that there may be an implication, especially to some third parties, that a new use sub-category must be created in order to protect an existing condition intermediate between uses already described in state rules. Whether within the bounds of 101(a)(2) or adopting a use designation that is not deemed meeting the 101(a)(2) requirement, we could likely move a little bit upstream or downstream and encounter slightly different water quality. Would that mean another use? What level of use-refinement, how many use sub-categories is then adequate (or required)? This could lead to an impractical proliferation of use sub-categories, one for each ambient condition encountered. Such nuanced uses and associated criteria would be extremely costly to develop and difficult to administer. With aquatic life it could devolve into species specific uses that pit one species against others and trigger endless regulatory battles. The whole notion of a 'lesser' or 'higher' use is problematic. How is that decided? While rankings can clearly be made based on comparing the values of one criterion parameter or another for two uses, this can be misguided. Take temperature as a use defining characteristic – Is warm water aquatic life lesser than cold water aquatic life, Alaska

08/04/2015 05:01 PM EDT 2-268Chapter 2 - Comment Documents Designated Uses necessarily superior to Florida in its aquatic communities? Parameters such as dissolved oxygen, nutrients and sediment – which exhibit a wide range of values in nature – are similarly problematic. If rather than a single parameter a full suite of applicable criteria is to be integrated into such value judgments the job is daunting, and potentially just as misguided. Are sparkling mountain streams inherently better than murky lowland swamps? Idaho believes a more proper and defensible view is that different sub-categories of use are equally valid even though different in their water quality requirements. Idaho strongly believes the level of use refinement should be left up to the states and tribes and that the concept of highest attainable use is unworkable. The tendency will be to simplify it to highest attainable conditions, a simplistic criterion comparison. In this case it becomes misguided in making value judgments regarding the diversity of waterbody types in nature – not every stream is a mountain stream nor should be. It also usurps antidegradation as a means to protect water quality that is better than specified by the criteria associated with each designated use.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0180-A2.001.012
Author Name: Hobson Chris Organization: Southern Company 2. Designated Uses Southern Company supports EPA's focus on designated uses, which are the cornerstone of the water quality standards program. We also support EPA's focus on use attainability analyses (UAAs), which provide a critical tool for assessing the factors that may affect use attainment. But Southern Company believes that EPA needs to further clarify its Proposal as described below. A. Highest Attainable Use If a state adopts new or revised water quality standards based on a UAA, EPA proposes that the state must adopt the "next best" attainable use, which the Agency defines as the "highest attainable use." Southern Company supports this concept. There is a recurring misperception that UAAs inevitably lead to the complete removal of a use, as opposed to a more properly refined and attainable use. This misperception is one of the most significant impediments to wider and more effective implementation of the UAA process. Requiring states to replace a use that has been removed through a UAA with the highest attainable alternative will help to overcome this misperception. That said, we believe revisions are needed to EPA's proposed definition of "highest attainable use" in 40 CFR §131.3(m) to further clarify what EPA intends. In particular, we suggest that EPA revise the definition to read as follows: "Highest attainable use is the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in

08/04/2015 05:01 PM EDT 2-269Chapter 2 - Comment Documents Designated Uses section 101(a)(2) of the Act and attainable, as determined by a State using best professional judgment based on data and information that the State determines to be the best available through a use attainability analysis defined in §131.3(g)." These revisions will help to avoid disputes over what constitutes the "best available data" and confirm that the states bear the responsibility to make this determination in their discretion.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0181-A2.001.004
Author Name: Sims Shaun Organization: Wyoming Association of Conservation Districts Page 54523 – C. Designated Uses: 3. Rational for Revision, Adoption of Highest Attainable Use: If the state or tribe demonstrates through a UAA that a 101(a)(2) use, or a subcategory of such a use, is not attainable, then in order to comply with this regulatory requirement, the state or tribe will need to adopt use designations that continue to serve the 101(a)(2) goal by protecting the highest attainable use unless the state or tribe has shown that no use specified in section 101(a)(2) is attainable. COMMENT: The adoption of Highest Attainable Use could be viewed as confusing and misleading. If states and tribes are already clearly defining water quality goals of a water body by designating the use(s) and by setting criteria that protects those uses, WACD questions the need for setting another loftier goal of a Highest Attainable Use. Determining a Highest Attainable Use that is closest to the designated use specified and attained could also vary under different circumstances leading to inconsistencies and failing to account for natural variations. WACD recommends that this provision be removed from the proposal rule and that EPA defer to states to determine if a Highest Attainable Use designation is necessary.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0182-A2.001.003
Author Name: Hahn Martha Organization: The Colorado Wastewater Utility Council

08/04/2015 05:01 PM EDT 2-270Chapter 2 - Comment Documents Designated Uses [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] II. Designated Uses and Attainability of § 101(a)(2) Uses Highest Attainable Use – § 131.3(m) and 131.10(q): The CWWUC is concerned that the proposed definition of highest attainable use is likely to encourage litigation over disagreements regarding what uses and associated standards are "closest" to Clean Water Act § 101(a)(2) uses. It may be preferable to retain the highest attainable use concept in the proposed rule, but leave defining what that term means to the consideration of individual states. Accordingly, we recommend that § 131.10(g) be revised as follows (proposed deleted language is shown as strikethrough and additional language is shown as underlined): (g)...If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the [begin strikeout] highest attainable use and the criteria to protect-that [end strikeout] use [begin new text] that it determines is the highest attainable [end new text].
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0182-A2.001.014
Author Name: Hahn Martha Organization: The Colorado Wastewater Utility Council VII. General Comments § 101(a)(2) Uses: The proposed rule preamble states, in part (at page 54522): The phrase "uses specified in section 101(a)(2) of the Act" refers to uses that provide for the protection and propagation of fish (including aquatic invertebrates), shellfish, and wildlife, and recreation in and on the water, as well as for the protection of human health when consuming fish, shellfish and other aquatic life (emphasis added). We are concerned that this inappropriately expands § 101(a)(2) uses to include fish consumption.
Response For response to this comment, see the following response essay(s): 5.e

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# Comment ID 0184-A2.001.002
Author Name: Curley Ed Organization: The Western Coalition of Arid States Comment 1: Clean Water Act 101(a)(2) Uses In the preamble to the proposed rule, EPA asserts that the phrase "uses specified in section 101(a)(2) of the Act" includes "the protection of human health when consuming fish, shellfish, and other aquatic life." This appears to be based on the common practice of referring to the 101(a)(2) uses as the "fishable/swimmable" uses. However, section 101(a)(2) does not contain the word "fishable" or otherwise refer in any way to the consumption of fish. Instead, it establishes the national objective to achieve "whenever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the water." Therefore, there is no basis to include fish consumption as a consideration under Section 101(a)(2) of the Act. EPA should remove references to the protection of human health when consuming fish, shellfish, and other aquatic life as "uses specified in section 101(a)(2) of the Act" from the preamble to the final rule.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0184-A2.001.003
Author Name: Curley Ed Organization: The Western Coalition of Arid States Comment 2: Highest Attainable Use EPA is proposing to amend paragraph (g) of §131.10 to provide that when a state or tribe adopts new or revised water quality standards based on a Use Attainability Analysis (UAA), the state or tribe must adopt the highest attainable use. States and tribes must also adopt criteria, as specified in §131.11(a), to protect that use. Specifically, the proposed rule would add a definition of HAU (Highest Attainable Use) at §131.3 (m). The definition of the HAU as "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in 131.3(g)." WESTCAS continues to have concerns the HAU of ephemeral streams that predominate in the Arid West are not the uses specified in section 101(a)(2) of the Act.
Response

08/04/2015 05:01 PM EDT 2-272Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0185-A1.001.003
Author Name: Poltak Ronald Organization: New England Interstate Water Pollution Control Commission Designated Uses The proposed rule would require that where a state adopts Water Quality Standards (WQS) based on a Use Attainability Analysis (UAA), it must adopt the highest attainable use (HAU), also adopting criteria to protect that use as specified in 131.11(a). EPA is proposing to define HAU as "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g)." The NEIWPCC states suggest that instead of using the phrase "closest to the uses," a phrase such as "most similar to the uses" may better capture the intent of adopting a use with a similar function as the 101(a)(2) use.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0186-A1.001.004
Author Name: Claff Roger Organization: American Petroleum Institute

•API recommends that the proposed definition of "Highest Attainable Use" at 40 CFR 131.3(m) be further clarified to assure that states do not confuse this requirement with some aspirational, unachievable use.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0186-A1.001.020

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Author Name: Claff Roger Organization: American Petroleum Institute API recommends that the proposed definition of "Highest Attainable Use" at 40 CFR 131.3(m) be further clarified to assure that states do not confuse this requirement with some aspirational, unachievable use. EPA discusses the objectives and intent of the Highest Attainable Use (HAU) definition in the preamble to the proposed rule. The preamble discussion is clear in that EPA's intent of this clarifying definition is to authorize states to establish alternative aquatic life protection and/or recreational uses to the uses identified at CWA Section 101(a)(2) when a UAA demonstrates that such uses are not fully attainable. The preamble uses an example of where: "...a use supporting a particular class of aquatic life is not attainable. However, if some less sensitive aquatic organisms are able to survive at the site under current or attainable future conditions, the goals of the CWA are not served by simply removing the aquatic life use designation and applicable criteria without determining whether there is some alternate 101(a)(2) use or subcategory of such a use that is feasible to attain." (78 Fed. Reg. 54523) Although EPA's intent is clear in the preamble to the proposed rule, the proposed definition at 40 CFR 131.3(m) could be misinterpreted to require designation of some pre-anthropogenic, "natural" use that is not actually attainable in the forseeable future due to one or more of the Section 131.10(g) factors. Therefore, API recommends that EPA add a sentence to the proposed Section 131.3(m) definition that states that the HAU is not intended to require a water body to achieve any natural, pre-anthropogenic condition in terms of either aquatic life protection or recreational use.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0191-A2.001.006
Author Name: Hirst Barbara Organization: New Jersey Department of Environmental Protection [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] Designation of Uses - Highest attainable use (HAU): The proposed term "highest attainable use" is misleading and could be read as implying a hierarchical designation of uses. Section 101(a)(2) of the Clean Water Act establishes a goal, wherever attainable, of water quality that provides for the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water. These uses are not prioritized, they are all to be attained where they can be. Further, this provision is most relevant when conducting a use attainability analysis. It is important that EPA confirm and clarify that the requirement to identify the "highest" attainable use is solely tied to the UAA process and not an independent requirement outside of the UAA process. NJDEP agrees with the suggested revised language submitted

08/04/2015 05:01 PM EDT 2-274Chapter 2 - Comment Documents Designated Uses by ACWA on the HAU. Suggested revisions as proposed by ACWA: § 131.3(m) [begin strikeout] Highest attainable use is the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in 131.3(g). [end strikeout]
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0192-A1.001.003
Author Name: Reeder Thomas Organization: North Carolina Department of Environment and Natural Resources With this correspondence, NC DWR provides suggestions to improve the draft rule amendments and to potentially reduce some unintended consequences. I. Designation of Uses 1) "Highest" attainable use EPA proposes to amend the definitions to include a "highest attainable use" (HAU) (40 CFR §131.3 (m)). While NC's current classification system strives to upgrade waters to their best use, we are concerned that discussions in the preamble to the WQS regulations may oversimplify the use designation decisions made by many states. For example, NC DWR currently provides for aquatic life criteria protective of trout, these criteria are tailored to the needs of a specific aquatic community with the water quality conditions suitable for their propagation and survival, thus NC DWR believes them to be fully supporting Section 101(a)(2) of the Act . NC DWR suggests deleting the term "highest" and modifying language to state if new or revised WQS are based on a use attainability analysis, the State shall ensure those standards include mechanisms to protect all attainable uses and the appropriate criteria to protect those uses. NC DWR requests that regulations be written to allow us to maintain the ability to utilize our current use categories, to develop new use categories (or subcategories) and to adopt another use which may include a location-specific use.
Response For response to this comment, see the following response essay(s):

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5.e 

# Comment ID 0193-A2.001.003
Author Name: Biggs Barbara Organization: Metro Wastewater Reclamation District [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] II. Designated Uses and Attainability of § 101(a)(2) Uses Highest Attainable Use – § 131.3(m) and 131.10(g): The Metro District is concerned that the proposed definition of highest attainable use is likely to encourage litigation over disagreements regarding what uses and associated standards are "closest" to Clean Water Act § 101(a)(2) uses. It may be preferable to retain the highest attainable use concept in the proposed rule, but leave defining what that term means to the consideration of individual states. Accordingly, we recommend that § 131.10(g) be revised as follows (proposed deleted language is shown as strikethrough and additional language is shown as underlined): (g)...If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the [begin strikeout] highest attainable use and the criteria to protect that [end strikeout] use [begin new text] that it determines is the highest attainable. [end new text]

Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0193-A2.001.012
Author Name: Biggs Barbara Organization: Metro Wastewater Reclamation District VII. General Comments § 101(a)(2) Uses: The proposed rule preamble states, in part (at page 54522): The phrase "uses specified in section 101(a)(2) of the Act" refers to uses that provide for the protection and propagation of fish (including aquatic invertebrates), shellfish, and wildlife, and recreation in and on the water, as well as for the protection of human health when consuming fish, shellfish and other aquatic life (emphasis added).

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We are concerned that this inappropriately expands § 101(a)(2) uses to include fish consumption.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0194-A1.001.005
Author Name: Stonestreet Robert Organization: West Virginia Chamber of Commerce The second area of concern relates to the proposed addition of the following new definition for "highest attainable use" ("HAU") in §131.3: (m)Highest attainable use is the aquatic life, wildlife, and/or recreational use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g). The proposed revisions, as detailed below, basically requires the states to adopt the HAU, as defined, as the de facto use because of the onerous and costly requirements (resources that the states do not have) associated with the performance of a required use attainability analysis ("UAA") to essentially try to prove a negative. Satisfying these requirements will not only be a waste of the states' limited resources, but is also likely an exercise in futility because of the inability to rebut the presumption that the HAU is attainable. It is the Chamber's opinion that the addition of an HAU for use with the proposed revisions is nothing more than the EPA codifying a policy that the agency has been attempting to implement for much of the life of the program. However, under the CWA, Congress clearly intended that use designations be the states' responsibility because it recognized that it is the states that are best equipped to make these decisions. Because the implementation of the revisions will have the effect of basically delegating the states' authority to EPA to set use designations, the Chamber disagrees with the addition of the definition and the implementing revisions.
Response For response to this comment, see the following response essay(s): 5.e 3.a 

# Comment ID 0196-A1.001.006

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Author Name: Bostic Jason Organization: West Virginia Coal Association Designated Uses EPA proposes to require that states adopting new or revised water quality standards (WQS) based on a use attainability analysis (UAA), must also adopt the highest attainable use (HAU), as well as criteria to protect that use. EPA defines HAU to include a reference to "using best available data and information." WVCA is concerned that this requirement, rather than providing clarification, opens the door to endless lawsuits over what constitutes the "best available data." Furthermore, EPA has not justified this change with any information showing that, without such a requirement, states have not been using the best available data when determining designated uses. WVCA urges EPA instead to include language clarifying that designated uses are determined by the states based on their best professional judgment. Additionally, EPA should clarify that if a state adopts new or revised WQS based on a UAA, the state shall adopt the use that the state determines is the highest attainable.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0199-A1.001.004
Author Name: Rogers Gilbert Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 2) Designated Uses EPA is proposing two changes to regulations related to designated uses of water bodies: (1) to amend paragraph (g) at 40 CFR § 131.10 to require a state or tribe to adopt a "highest attainable use" ("HAU") whenever it undertakes a use attainability analysis ("UAA"), and (2) to amend § 131.10(g) and § 131.10(k) to declare what factors must be considered in a UAA and to clarify when a UAA is not needed. EPA is also proposing to add the following definition of HAU to the regulations: "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information..." [FN6] We support the first proposed revision requiring a state to adopt an HAU whenever it undergoes a UAA to remove a designated use. [FN6] 78 Fed. Reg. at 54,522.

08/04/2015 05:01 PM EDT 2-278Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0202-A2.001.003
Author Name: Frederick Kevin Organization: Wyoming Department of Environmental Quality/Water Quality Division Designated Uses Highest Attainable Uses The EPA is proposing to add "highest attainable use" to the definitions under 131.3 and clarification under 131.10(g) that when changing a use through a use attainability analysis (UAA), that the state "shall adopt the highest attainable use and the criteria to protect that use." The WDEQ/WQD understands that the intention of the proposed revisions is to ensure that states do not remove existing uses and applicable water quality criteria if their designated use structure does not have sufficient specificity during the UAA process. EPA is concerned that states would remove a use altogether, along with applicable water quality criteria, rather than adopt a more appropriate designated use. The WDEQ/WQD believes that the concept of "highest attainable use" is misleading and will cause unnecessary confusion and conflict since it assumes that there is always a hierarchy to designated uses. In reality, uses may simply be different and often water bodies either do or don't support a particular designated use. For example, due to the topography, climatic regime, and varying hydrologic regimes across Wyoming, waters in the state naturally support cold water fish species, warm water fish species, or may not support any fish species. These differences in species assemblages occur naturally throughout the state and are not the result of anthropogenic activities. The concept of "highest attainable use" does not recognize this natural variation. The WDEQ/WQD is concerned that some stakeholders will insist that every water body in the state be designated as a cold water fishery simply because this may be viewed as the "highest attainable use" when in reality the use is not naturally attainable in most waters. The WDEQ/WQD is also wary that the proposed revision will require the creation of many more designated use tiers and associated criteria such that it will prolong the UAA and rulemaking process, and make it more difficult to evaluate designated uses during assessments. Given the variability in state's designated use structures and existing and attainable uses, it is most appropriate to handle designated uses and criteria to protect designated uses on a state by state and UAA by UAA basis, rather than apply a misleading concept such as "highest attainable use" to all waters and UAAs. Therefore, the WDEQ/WQD recommends that EPA not include "highest attainable use" in the definitions under 131.3and that the term "highest" be removed from the proposed revision to 131.10(g).
Response For response to this comment, see the following response essay(s):

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5.e 

# Comment ID 0202-A2.001.005
Author Name: Frederick Kevin Organization: Wyoming Department of Environmental Quality/Water Quality Division Consumption of Aquatic Organisms Section III(C)(2), Background for Designated Uses on page 54522 of the Federal Register Vol. 78, No. 171, describes that the uses specified in 101(a)(2) of the Act include "protection of human health when consuming fish, shellfish, and other aquatic life." This interpretation of the 101(a)(2) uses is not reflected in the current federal regulations, nor in the proposed changes to 40 CFR 131. Because EPA interprets the 101(a)(2) uses inconsistently and does not define 101(a)(2) uses in the regulations, EPA's intentions are unclear.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0202-A2.001.007
Author Name: Frederick Kevin Organization: Wyoming Department of Environmental Quality/Water Quality Division If EPA intends to interpret the 101(a)(2) uses as including consumption of aquatic organisms, the EPA needs to clearly define this in the federal regulations.
Response For response to this comment, see the following response essay(s): 5.e

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# Comment ID 0203-A1.001.006
Author Name: Christman Jim Organization: Hunton & Williams on behalf of Utility Water Act Group B. Highest Attainable Use EPA proposes that a state, when doing a Use Attainability Analysis, must adopt the HAU. The HAU is the "closest" to fishable, swimmable that can be attained. Also, a state would have to do a UAA (and hence find an HAU) whenever it (1)removed a fishable, swimmable subcategory or (2) designated a fishable, swimmable subcategory with less stringent criteria than before. The proposed requirement to search for an HAU requires the state to find an animal (or category of animals) that can live in the chemical, flow, physical, and hydrologic conditions of the waterbody (as those conditions are now or may be in the future when BMPs or additional technology-based limits have taken effect), or a recreational use in and on the water, without imposing widespread economic and social costs. Then, if no such animal or recreational use can be found, the state must still find a use "closest" to fishable, swimmable. [FN3] This new regulatory scheme would alter the water quality standards program as prescribed by Congress, create litigation over what is the highest attainable use, and impose a burden on state resources, at least unless the "highest attainable use" is defined so as to make clear that it is the state that is to determine the HAU using its best professional judgment and data that the state determines is the best available. [FN3] "Closest" here no doubt means "use that requires the most stringent criteria that can be attained."
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0203-A1.001.008
Author Name: Christman Jim Organization: Hunton & Williams on behalf of Utility Water Act Group 2. EPA's Proposal Biases the Analysis of "Use and Value" Possibly EPA is concerned that adjusting the uses (particularly in a state that has use categories that are broad or general) will allow new discharges or economic development that will impair water quality and that the new discharges will be inconsistent with existing uses. If a state has a broad use category, it makes sense that states should not allow water quality to get worse unless they have a good reason and that they should analyze the consequences of a

08/04/2015 05:01 PM EDT 2-281Chapter 2 - Comment Documents Designated Uses downgrading. But even if that is what EPA intends, the constraints EPA proposes unduly restrict the states' choices by presuming fishable-swimmable uses that may in fact not be appropriate. It may be that EPA has authority to require the states to consider the consequences and provide a reasoned explanation when they downgrade a use. But EPA should not enact a rule that so discourages nonfishable uses that it warps the states' assessment of "use and value." The Clean Water Act directs the states to consider the "use and value" of waters, not each water segment separately (§ 303(c)(2)(A) says "their" use and value). It appears that Congress understood the water quality standards program to allow states to look at their "waters" collectively, rather than, as EPA would have it, each waterbody or segment individually. Likewise, Congress imposed the technology-based limits program over the water quality standards program to avoid a "zoning" regime based solely on water quality standards. Suppressing nonfishable designated uses too vigorously would affect different states unequally. Fish do not always confine themselves to a single parcel of water. They may move through an "industrial" waterway to get to where they can reproduce and feed. But that does not mean that Congress forbade waters designated for "industrial" uses. Discouraging "industrial" uses would tend to favor states with more lakes and small headwaters and with fewer large interstate waterbodies populated by highly migratory species. But it is the essence of the water quality standards program to allow for those differences. EPA's proposal to require states to find the "highest attainable use" for every water segment would bias the consideration of "use and value" that Congress wanted states to undertake. In the proposal, to determine the HAU, a state would have to use only the six reasons in § 131.10(g) for removing a use (78 Fed. Reg. 54,523 col. 3). Other reasons (like the "use and value" of a water) would not be acceptable. The six § 113.10(g) acceptable reasons for removing a designated use are: (1)naturally occurring pollutants, (2)flow conditions that cannot be compensated for, (3)human conditions or sources of pollutants that cannot be remedied or would cause more environmental damage to correct than to leave in place, (4)dams or other hydrologic modifications that cannot feasibly be undone, (5)physical conditions related to natural features, and (6)substantial and widespread economic and social impact. In the past, EPA has interpreted the six reasons narrowly, making it harder and harder to remove a designated use even with good reason. Though there is a "not feasible" test for all six reasons (and "feasibility" could include economic feasibility), only number 6 clearly allows economic considerations, namely "substantial and widespread economic and social impact." EPA says its "Interim Economic Guidance for Water Quality Standards," http://water.epa.gov/scitech/swguidance/standards/economics/, addresses this standard. 78 Fed. Reg. 54,535 col. 1.

08/04/2015 05:01 PM EDT 2-282Chapter 2 - Comment Documents Designated Uses [FN4] With the proposed rule, EPA is, in effect, replacing the statutory consideration of "use and value" with the more restrictive standard that, no matter what the value of the waterbody, the state may not choose a lesser use except to prevent substantial and widespread economic and social impact. Thus, EPA's proposal restricts the states' ability to assess the "use and value" of their waters, as they are required to do by statute. EPA says states have "flexibility" to designate, revise, and manage uses (78 Fed. Reg. 54,522 col. 3, 54,523 col. 1, 54,524 col. 1) and that they have "broad discretion" to determine the level of specificity to use in defining uses (id. at 54,523 col. 2). EPA says it recognizes the "primary role" accorded to states and tribes (id. at 54,523 col. 3). EPA says the proposed rule would not affect a state or tribe's discretion to determine the appropriate level of specificity for uses (id.). But these statements are inconsistent with the requirements EPA wants to impose. The states cannot consider "use and value" if they are obligated to make all uses fishable or swimmable unless they prove nonattainability. This requirement biases the consideration of "use and value." Now EPA proposes yet another hurdle: to downgrade a use, a state must not only find fishable, swimmable uses nonattainable; the state must try to find some subcategory of fishable, swimmable uses that can be attained. [FN4] EPA's Economic Guidance has not been the subject of a notice and comment rulemaking and thus cannot be treated as controlling law. We therefore assume that EPA's reference to the guidance is merely advisory. If the Agency intends to suggest, by including that reference in the preamble to this proposal, that its Economic Guidance is controlling, then it should reopen the proposal and solicit comments on that document.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0205-A1.001.005
Author Name: Burd Charlie Organization: Independent Oil and Gas Association of West Virginia Inc. B. Designated Uses IOGA-WV strongly objects to the proposed revision to 40 C.F.R. § 131.10(g), which would provide that where a designated use specified in Section 101(a)(2) [FN1] or a subcategory of such a use is not attainable, the highest attainable use ("HAU") and criteria to protect that use shall be adopted in its place. This new term, in turn, is proposed to be defined in 40 C.F.R. § 131.3(m) as follows: "Highest attainable use is the aquatic life, wildlife and/or recreational use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best

08/04/2015 05:01 PM EDT 2-283Chapter 2 - Comment Documents Designated Uses available data and information through a use attainability analysis defined in [40 C.F.R.] § 131.3(g)." In practice, these proposed revisions would significantly limit the discretion of individual states to adopt appropriate use designations––one of the core principles of the CWA as established by Congress. See 33 U.S.C. § 1251(b) (declaring that "[i]t is the policy of the Congress to recognize, preserve, and protect the primary responsibilities of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this Act"). Indeed, by mandating the adoption of the HAU––and defining the HAU as the attainable use "closest" to the national "fishable/swimmable" goal articulated in 33 U.S.C. § 1251(a)(2)––these revisions effectively constrain states' ability to consider the "use and value" of specific waters for all purposes (including agricultural and industrial purposes) when establishing designating uses, as directed by Section 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A). This is an untenable result that unreasonably discourages uses other than fishable/swimmable, particularly where the CWA certainly does not prohibit the designation of such alternative uses. [FN1] See 33 U.S.C. § 1251 (stating that "it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983").
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0207-A1.001.018
Author Name: Bodine Susan Organization: American Farm Bureau Federation et al. B. Designation and Removal of Uses.
1. Highest attainable use. EPA is proposing to amend § 131.10(g) to require a state to adopt the "highest attainable use" when adopting new or revised water quality standards. "Highest attainable use" is defined as "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g)."
Response For response to this comment, see the following response essay(s): 5.e

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# Comment ID 0207-A1.001.020
Author Name: Bodine Susan Organization: American Farm Bureau Federation et al. Third, the proposed definition of "highest attainable use" is subjective and would require burdensome technical and scientific data collection and documentation by the state. A subjective definition is likely to engender litigation. The proposed regulatory language states that: "If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use." Proposed § 131.10(g) (emphasis added). This regulatory language imposes a duty on the state (or EPA if EPA disapproves a state standard). Any person who disagrees on issues such as what constitutes "best available data" could allege that the use adopted was not the "highest attainable" and ask a court to adopt its own determination of what is "highest attainable." A burdensome definition is likely to waste state resources. Under the proposed definition a state would have to evaluate the affordability of multiple water quality criteria to meet multiple uses to determine what use is "closest" to the statutory "fishable/swimmable" uses and still attainable. If EPA adopts its proposal to require "highest attainable uses," we recommend that EPA revise the definition of "highest attainable use" to read as follows: "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined by a State using best professional judgment based on data and information that the State determines is the best available and that the State has evaluated through a use attainability analysis defined in § 131.3(g)." By referring to a single UAA, we intend the regulation to require only one UAA to determine what is not attainable, and allow the state to extrapolate from the UAA using best professional judgment to determine the next highest use that is attainable. By referring to "data and information that the State determines is the best available" we intend to require deference to a State's choice of data and information. For example, a state should be allowed to exclude consideration of unusual or one-time uses, if the state determines such uses do not represent known regular uses and therefore do not constitute best available data and information. Further, if EPA proceeds with its proposal to require highest attainable uses, we recommend a corresponding change to the language in § 131.10(g) as follows: "If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the use that it determines is the highest attainable." By making "highest attainable use" a state determination a judicial challenge to the state's decision would apply an arbitrary and capricious standard of review, rather than a de novo standard that would allow a court to replace the state's judgment with its own.
Response For response to this comment, see the following response essay(s): 5.e

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# Comment ID 0209-A1.001.003
Author Name: Gilzow Floyd Organization: Missouri Public Utility Alliance 2. We are concerned that the creation of the concept of Highest Attainable Use beyond those contained in Beneficial Uses will actually result in degradation of environmental agency oversight of watersheds in Missouri
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0209-A1.001.011
Author Name: Gilzow Floyd Organization: Missouri Public Utility Alliance SPECIFIC COMMENTS HIGHEST ATTAINABLE USE CONCEPT We acknowledge that the Federal Clean Water Act (CWA) does require the agency to protect and improve water quality in the United States. However we believe the addition of ‘Highest Attainable Use' (HAU) within the construct of beneficial uses, may work to degrade water quality in the United States. The new requirements that HAU be determined for all waters, and that a limited inability to attain HAU because of geologic, geomorphologic, or historic use reasons should not be a disqualifier for a high HAU designation, insures that most, if not all, streams in Missouri will be classified as not meeting state standards on the 303(d) list periodically submitted by the Missouri Department of Natural Resources (MDNR). The state agency has been historically underfunded to meet needs, especially after funding cuts from the state's general revenues, and in fact EPA itself has repeatedly complained about the state's use of federal funds to meet the most basic obligations. Now EPA is changing the rules to insure that MDNR has even more responsibilities, but with no additional funds to carry out its obligations. The HAU paradigm ignores the reality of physical water science in the name of trying to attain better biologic water chemistry solely for the purpose of changing water quality criteria with no evidence that it will make a significant improvement in the diversity of biota in any one of the state's 66 eight digit hydrologic unit watersheds.

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We suggest that this provision be removed from the clarification.
Response For response to this comment, see the following response essay(s): 5.e 12.a 

# Comment ID 0213-A1.001.005
Author Name: Coyne Kevin Organization: West Virginia Department of Environmental Protection Designation of Uses - In regard to the proposed changes involving Use Designations, DEP agrees with ACWA that EPA's proposed changes represent an oversimplification of the use designation process and that EPA should focus on the designation of appropriate and attainable uses and should abandon the Highest Attainable Use (HAU) concept. DEP feels that HAUs will essentially describe generalized use designations that are incongruent among states; therefore, in order to correctly describe attainable uses, states will be required to perform lengthy and cost-prohibitive Use Attainment Analyses (UAAs). This process would be overly burdensome for states and may be construed as usurping state's authority regarding use designation.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0217-A2.001.011
Author Name: Hale Michelle Organization: Alaska Department of Environmental Conservation [This excerpt contains red-line/strike-out text. Refer to the original document for recommended edits.]

e. Suggested revision: § 131.3(m) [begin strikeout] Highest attainable use is the aquatic life, wildlife, and/or recreation use that is both specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in 131.3(g). [end strikeout] [begin new text] Uses specified by section 101(a)(2) of the Act include those uses designated by a state that meet the stated objective for "protection and propagation of fish,

08/04/2015 05:01 PM EDT 2-287Chapter 2 - Comment Documents Designated Uses shellfish, and wildlife" and provide for "recreation in and on the water." Uses that are consistent with this definition and are protected by section 304(a) criteria or other criteria demonstrated to be fully protective of those uses shall be considered uses specified in section 101(a)(2) of the Act. [end new text]
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0219-A1.001.005
Author Name: McNelly Jeff Organization: ARIPPA 2. Designated Uses EPA proposes requiring states to adopt new or revised water quality standards (WQS), must adopt the highest attainable use (HAU) as well as criteria to protect that use based on a use attainability analysis (UAA). As part of this effort, EPA is also proposing to add a definition of AU at Section 131.1(m). Specifically, the EPA is proposing to define HAU as ‘‘the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in Section 131.3(g). The concept of "best available data and information" through a use attainability analysis as define in Section 131.3(g) raises a concern that the "best available data and information" may not be appropriate as it could be the latest information available but may not be of a quality needed to conduct a structured scientific review as set forth in Section 131.3(g). In doing so, the State shall adopt the use that the State determines is the highest attainable, if it adopts new or revised standards.. We have a concern that this language of using "best available data and information" suggests that the States have not been using appropriate data to conduct a structure scientific review as required by Section 131.3(g).

Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0220-A2.001.006

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Author Name: Anderson Paul Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District B. Designated Uses The Lower Fountain appreciates the CWA goals and supports reasonable measures and methods to attain the stated goals within Section 101(a)(2). If the proposed rule were simply limited to EPA's summary as set forth under Section C.1. of the proposed rule (at p. 54522, first column), that would be sufficient and acceptable. The District submits certain portions of EPA's "Background" and "Rationale for Revision - Adoption of Highest Attainable Use" subsections (Sections C.2 and C.3, pp. 54522-24) would result in confusion and further uncertainty while also appearing to authorize states to proceed with adopting new or amended WQS when scientific evidence either doesn't indicate a water quality issue exists or otherwise would not support such standards. In particular, the District finds the following explanation (Section C.2 at p. 54523, first column) troubling: "Existing uses are known to be "attained" when both the use and water quality necessary to support the use has (sic) been achieved. The EPA recognizes, however, that all the necessary data may not be available. Where data may be limited, inconclusive, or not available, states and tribes have discretion to determine whether an existing use has been attained, based on either the use or the water quality." (italics in original, underline added) The District does not believe EPA intends, or is otherwise authorizing or encouraging states and tribes, to adopt new or amended WQS when "necessary" supporting evidence is "not available". Stated differently, states and tribes should not be encouraged or authorized to propose or adopt new or amended standards when not all the "necessary" scientific data needed to support the standards has been developed or vetted. The above explanation also appears to contradict itself: It acknowledges "existing uses" are known to be "attained" based on "both use and water quality", but then indicates that states have discretion to determine an existing use "based on either the use or the water quality." This seems to suggest that Colorado and other states can choose to designate a use as attained when current water quality does not in fact support the use, i.e., that a state may designate a use solely based on a "use" made of a water body when such use is at best ill-advised or even reckless (e.g., recreational use or human consumption of waters known to be unsafe for such activity). The Lower Fountain District suggests there should be a reasonable probability that a water body can and will attain a use identified in CWA §101(a)(2), based on "both use and water quality", before a state may adopt a designated use per the CWA, with the onus being on the state or tribe to make that demonstration. Like many states in the west, Colorado has experienced severe drought conditions while simultaneously dealing with an increased demand on water supply. Taking the above explanation to its conclusion, if drought conditions were to continue then all water sources within Colorado could become a water supply source; the District submits this is impractical based on water quality considerations (e.g., natural salinity) and the suitability of developing, treating and delivering various water sources at a reasonable cost. The District thus asks EPA to further clarify its intent as regarding the above explanation.
Response For response to this comment, see the following response essay(s):

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5.e 5.d 

# Comment ID 0220-A2.001.007
Author Name: Anderson Paul Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District C. Highest Attainable Use The Lower Fountain also has concerns about EPA's extended explanation regarding "Highest Attainable Use" ("HAU"). Instead of promoting clarity and certainty, the District finds it nebulous; it appears EPA is encouraging, if not requiring, states to adopt a HAU during a triennial review without also conducting a Use Attainability Analysis ("UAA") on the following basis (at Section C.3, p. 54524, third column): "If new information becomes available during a triennial review to indicate that a use higher than what is currently designated is attainable, states and tribes should revise their WQS to reflect the HAU." (underline added) The sentence immediately following this statement (states and tribes not required to revise established use categories to allow for more refined designations of higher use) does not seem to change or modify this statement. If as EPA appears to intend the "new information" that supports finding that a use is "attainable" is developed through a UAA or other scientifically reviewed investigation within the watershed, the District requests that this be stated specifically. While water bodies in Colorado may share certain basic characteristics their respective physical locations and conditions often vary (e.g., surface topography, subterranean conditions), even within the same watershed, such that the District submits it would be improper or impractical to use "new information" obtained in one watershed in different watershed. The Lower Fountain District also requests further clarification of the following, which appears just prior to above statement (at Section C.3, p. 54524, third column): "The concept of HAU should not to be (sic) confused with "site-specific criteria." A site-specific criterion is designed to protect the current unchanged designated use, but the criterion value may be different from the statewide or otherwise applicable criterion because it is tailored to account for site-specific conditions that may cause a given chemical concentration to have a different effect on one site than on another." The District would note a HAU may be both a new use designation (or subcategory of the use) and its site-specific standard. From its experience the District has observed that a site-specific criterion, or standard, is developed when site conditions are such that the location at issue, e.g., a specific stream segment, does not meet the otherwise applicable standard per the current designated use; the site-specific standard thus reflects, and at minimum is intended to preserve, the existing water quality condition. In such cases, adoption of a site-specific standard essentially acknowledges that imposing further controls on regulated entities would not lead to improvements of the site-specific water quality. If the District misunderstands when site-specific criteria without a HAU determination should apply, the District would appreciate further clarification and correction by EPA.

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Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0221-A1.001.005
Author Name: Coyne Kevin Organization: West Virginia Department of Environmental Protection Designation of Uses - In regard to the proposed changes involving Use Designations, DEP agrees with ACWA that EPA's proposed changes represent an oversimplification of the use designation process and that EPA should focus on the designation of appropriate and attainable uses and should abandon the Highest Attainable Use (HAU) concept. DEP feels that HAUs will essentially describe generalized use designations that are incongruent among states; therefore, in order to correctly describe attainable uses, states will be required to perform lengthy and cost-prohibitive Use Attainment Analyses (UAAs). This process would be overly burdensome for states and may be construed as usurping state's authority regarding use designation.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0222-A1.001.007
Author Name: Modeer David Organization: Western Urban Water Coalition ISSUE SPECIFIC COMMENTS In addition to the General Comments, WUWC addresses specific issues for designated uses, antidegradation, and variances. Each issue is discussed below. Designated Uses. EPA proposes to amend section 131.10(g) to provide that where a state or tribe adopts new or revised water quality standards based on an UAA, it must adopt the HAU. States and tribes must also adopt criteria, as specified in section 131.11(a), to protect that use. The EPA proposes to define HAU as ‘‘the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in section 131.3(g)." WUWC has the following comments on these proposed changes.

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1. There is a potential for confusion and controversy when the proposed rule defines the HAU as one that is "both closest to the uses specified in section 101(a)(2) of the Act and attainable. . . ." There is no set guidance as to how the term "closest" is to be interpreted. This concern can be alleviated by adding the following sentence to the end of section 131.3(m): "States and tribes have discretion to determine the appropriate level of specificity to use in identifying and defining designated uses, including those uses deemed closest to the uses specified in section 101(a)(2) of the Act."
2. In the Background section for Designated Uses, EPA identifies "the protection of human health when consuming fish" as one of the section 101(a)(2) uses. However, this is not the case. Section 101(a)(2) refers to "the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." Thus, fish consumption, not unlike "water for public water supplies," falls into the category of "uses not specified in section 101(a)(2)" as referenced at section 131.10(k)(2) of the proposed rule. EPA should state in the preamble for the final rule that a UAA is not required when designating or removing such a use.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0224-A1.001.003
Author Name: Ternieden Claudio Organization: Water Environment Federation C. Designated Uses. EPA Proposal: First, EPA is proposing to amend paragraph (g) at § 131.10 to provide that, where a state or tribe adopts new or revised water quality standards based on a use attainability analysis (UAA), it must adopt the highest attainable use (HAU). States and tribes must also adopt criteria, as specified in § 131.11(a), to protect that use. EPA is also proposing to add a definition of HAU at § 131.3(m). Specifically, EPA is proposing to define HAU as "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g)."
Response For response to this comment, see the following response essay(s): 5.e

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# Comment ID 0225-A1.001.002
Author Name: Blackham Leonard Organization: Utah Department of Agriculture and Food Part 131.3 Definitions (m)"Highest attainable use" The rule introduces a new standard for water quality, the highest attainable use. This section puts forward the definition for "highest attainable use". We are concerned over how the standard is defined. Nowhere in the definition of the highest attainable use does it take into consideration the historical use of water. In the past the rules have encouraged the use of "physical, chemical, biological, and economic factors," but has not included historical use as a factor (40 CFR 131.3(g). Historical use would include looking at native species verses non-native species. There are cases where the current use, established using the previous factors, has a negative effect on threatened and endangered species because the use does not reflect the historic uses. The improved water quality allows for nonnative species to compete or even become predators to the native species, thus compounding the problem of being able to increase numbers to support the species. We suggest that states be given the flexibility to reevaluate the current designated use and determine if they are the best beneficial use for that water body, based on historic data in addition to physical, chemical, biological, and economic factors. This could be accomplished using current acceptable best management practice and based on science. In addition the highest attainable use standard could lead to a more prolonged, energy intensive, litigated process. There are large numbers of nongovernmental organizations that are interested in the designation of water. Each of these groups has their own interests and agendas to protect in the designation of water uses. They each have their own ideas of what the most beneficial use is or what is the highest attainable use. The use of such a standard will lead these groups to provide their own evidence, which would counter any data produced by a state or tribe. As a result there will be art increase in litigation with the state and other groups in determining the highest attainable use.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0225-A1.001.004
Author Name: Blackham Leonard Organization: Utah Department of Agriculture and Food This section also attempts to apply the highest attainable use standard. We renew our concerns with this standard. The adoption of the highest attainable use does not necessarily mean the state has adopted the best beneficial use. We

08/04/2015 05:01 PM EDT 2-293Chapter 2 - Comment Documents Designated Uses refer to our previous comment to 131.3(m) for a more detailed analysis of our concern. [0225-A1.001.002]
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0231-A2.001.009
Author Name: Sanderson Stuart Organization: The Colorado Mining Association Designated Uses (s. 131.10) EPA is proposing to amend s. 131.10 to state that when new or revised WQS are adopted based on a use attainability analysis (UAA) it must adopt the highest attainable use (HAU) and criteria to protect that use. Upgrading to HAU may not make sense. Forcing HAU for designated uses including uses that may be possible from improvements or treatment is unreasonable. The HAU definition proposed to be added at s. 131.3(m): "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(0(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in 131.3(g)." EPA then proposes to apply the HAU definition by amending s. 131.10(g) in the following manner: "If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use." EPA's proposed language is subjective, unnecessarily broad and open to interpretation, places a larger burden on States and regulated stakeholders, and will undoubtedly instigate litigation. A person disagreeing over the meaning of "best available data" could allege the use adopted by a State was not the "highest attainable" and then ask a court to adopt its own determination of what "highest attainable" is. The proposed definition above would also cause the State to have to evaluate the affordability of multiple water quality criteria to meet multiple uses to determine what use is "closest" to the statutory "fishable/swimmable" uses and still attainable. This would be a waste of State resources. The language of the regulation should be modified to require only a single UAA to determine what is not attainable, and allow the State to pull from the UAA using best professional judgment to determine the next highest use that is attainable. There should be deference to a State's choice of data and information built into the language of the regulation.
Response For response to this comment, see the following response essay(s): 5.e 12.a

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# Comment ID 0232-A2.001.006
Author Name: Grayum Mike Organization: Northwest Indian Fisheries Commission Specifically, EPA should clarify in rule, as opposed to relying upon guidance documents, the following key issues: "Highest attainable use" needs further clarification to ensure that water quality is not degraded to the detriment of the treaty-reserved resources and tribal member health. The definition of highest attainable use pertains to setting a new interim water quality standard in a variance [FN2] or a new water quality standard when it has been demonstrated that the existing standards cannot be achieved for reasons stated in rule. The latter is known as a use attainability analysis (UAA). Federal guidance provides six factors for a when a designated use can be downgraded permanently through a UAA. See 40 CFR 131.10(g). After a justification is made based on one of those factors, a new standard may be established. However, EPA proposed rules on the setting of interim or new criteria is too vague to provide assurances that the subsequent standards will in fact be protective of treaty reserved resources. The new definition clarifies that the subsequent standard must be based on the use of the water closest to those in § 102 of the CWA. [FN3] It also requires that setting the standard be based upon "best available data and information" derived from a UAA. [FN4] This definition is important because it clarifies that setting new standards, be based on the "highest attainable" as opposed to merely something less than before. However, the definition is vague on two fronts, and therefore provides states with ample discretion which is ripe for abuse. First, EPA authorizes that attainability can be determined in impart through an economic analysis, but the details and rigor of that analysis are left to guidance and not rule. [FN5] EPA should explicitly state in rule an extremely high bar of scientific analysis of downgrading a use either permanently or temporarily. Moreover, EPA should not let economics alone provide the justification for temporary or permanent downgrades, because to do so directly undermines the purpose and intent of the CWA - to protect and restore the biological integrity of the nations waters - a charge unfettered of economic considerations. EPA also has a duty to protect the tribes' treaty rights by ensuring that Washington does not unnecessarily downgrade a use that would result in a lack of protection for treaty reserved rights. That duty should not be tempered by an economic analysis, or a demonstration of impact to profit margins. To do so, would be to place the right to pollute above the constitutionally recognized supreme law of treaty rights. [FN2] In EPAs proposed rules, variances employ the term of art - highest attainable condition as opposed to use, which is undefined. Given its lack of definition, it is a fair assessment that UAA-based definition of highest attainable use is likely to guide its meaning. [FN3] EPAs proposed language is as follows: Highest attainable use is the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g). [FN4] 40 CFR 131.3(g) defines a use attainability analysis as a "structured scientific assessment of the factors affecting

08/04/2015 05:01 PM EDT 2-295Chapter 2 - Comment Documents Designated Uses the attainment of the use which may include physical, chemical, biological, and economic factors as described in § 131.10(g)." [FN5] See EPA Selected Methods For Understanding Risks, Costs, And Benefits Associated With Attaining Water Quality Standards available at http://permanentaccess.gpo.gov/Ips35390/cfpub.epa.govincea/cfm/recordisplay.cfmdeid = 52080.htm
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0234-A2.001.013
Author Name: Andes Fredric Organization: Federal Water Quality Coalition IV. DESIGNATED USES EPA is proposing several amendments to the section of the WQS regulation that address designated uses. A. Highest Attainable Use. EPA is proposing to amend its regulations to require a State to adopt the "highest attainable use" when adopting new or revised water quality standards. EPA is proposing to define "Highest attainable use" as "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g)." Proposed § 131.3(m). EPA then proposes to apply this definition by amending § 131.10(g) to state that: "If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use." Proposed § 131.10(g). We note that EPA is proposing to expand what is considered a use under § 101(a)(2). In the preamble, EPA states that: "By 'the uses specified in CWA section 101(a)(2)' the EPA means the uses and functions encompassed within the CWA section 101(a)(2), such as aquatic life support, wildlife support, consumption of aquatic life, and recreation." 78 Fed. Reg. at 54526 (emphasis added). However, "consumption of aquatic life" is not a use identified in § 101(a)(2). EPA cannot, in preamble language, expand the goals of the CWA.
Response For response to this comment, see the following response essay(s): 5.e

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# Comment ID 0234-A2.001.015
Author Name: Andes Fredric Organization: Federal Water Quality Coalition We also have concerns with the specific regulatory language being proposed. As drafted, these provisions are subjective and likely to engender litigation. Any person who disagrees regarding what constitutes "best available data" could allege that the use adopted by a State was not the "highest attainable" and ask a court to adopt its own determination of what is "highest attainable." Further, under the proposed definition a State would have to evaluate the affordability of multiple water quality criteria to meet multiple uses to determine what use is "closest" to the statutory "fishable/swimmable" uses and still attainable, wasting State resources. If EPA proceeds with its proposal, to avoid having courts establish water quality standards and to reduce burden on the States, we recommend that EPA revise the definition of "highest attainable use" to read as follows: "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined by a State using best professional judgment based on data and information that the State determines is the best available and that the State has evaluated through a use attainability analysis defined in § 131.3(g)." By referring to a single use attainability analysis (UAA), we intend the regulation to require only one UAA to determine what is not attainable, and to allow the State to extrapolate from the UAA using best professional judgment to determine the next highest use that is attainable. By referring to "data and information that the State determines is the best available" we intend to require deference to a State's choice of data and information. For example, a State should be allowed to exclude consideration of You Tube videos of unusual or even one-time uses, if the State determines such videos do not constitute best available data and information.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0235-A2.001.004
Author Name: Lumley Babtist Organization: Columbia River Inter-Tribal Fish Commission 1. Designated Uses. In section 131.5(a)(2), the proposed use of the term "sound scientific rationale" is ambiguous. The final rule should use the statutory language of "best available science" and "best available technology" for consistency

08/04/2015 05:01 PM EDT 2-297Chapter 2 - Comment Documents Designated Uses and clarity.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0235-A2.001.005
Author Name: Lumley Babtist Organization: Columbia River Inter-Tribal Fish Commission 2. Use Attainability Analysis. Use Attainability Analyses have been improperly looked upon by industry as avenues to avoid meeting water quality standards. EPA's proposed addition of maintaining the "highest attainable use" as well as its clarification that existing uses must always be protected, regardless of a state's action to change a use, are consistent with the Clean Water Act. EPA should retain both changes.
Response For response to this comment, see the following response essay(s): 5.e 5.d 

# Comment ID 0236-A2.001.006
Author Name: Weigel Brian Organization: Wisconsin Department of Natural Resources Adoption of Highest Attainable Use (HAU) WDNR supports the following clarifications and requirements:

•The specification that a determination of the HAU has two components: that the assigned use is both a) closest to the uses specified in the CWA, and b) attainable.
Response For response to this comment, see the following response essay(s): 5.e

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# Comment ID 0237-A2.001.003
Author Name: Tucker James Organization: Idaho Power Company [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.]
2. EPA's proposes adding the following definition of "highest attainable use": Highest attainable use is the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g). This proposed definition does not take into consideration that a state or tribe may have promulgated multiple designated uses (e.g. cold water, warm water) that meet the goals of section 101(a)(2). Under these circumstances there is no hierarchy. All such designated uses meet the goals of the act. Therefore the proposed definition would be confusing when it incorporates the term "closest to" in these circumstances. To eliminate this potential for confusion, this definition should read: Highest attainable use is [begin strikeout] the [end strikeout] [begin new text] an [end new text] aquatic life, wildlife, and/or recreation use that [begin strikeout] is both closest to [end strikeout] [begin new text] meets [end new text] the uses specified in section 101(a)(2) of the Act and is attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g). [begin new text] If the proposed use does not meet the uses specified in section 101(a)(2), it should be set at the use which has the most stringent water quality standards and is still attainable through a use attainability analysis. [end new text]
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0240-A2.001.009
Author Name: Turner Jr. James Organization: Murray Energy Corporation f. The meaning and regulatory import of the statement "where uses specified in section 101(a)(2) are unattainable, it is important that states and tribes still strive to attain uses that continue to serve the purposes of the Act and also enhance the quality of the water," is undefined.

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Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0243-A2.001.006
Author Name: Daniels Zane Organization: Ohio Coal Association The HAU definition espoused by USEPA in the Proposed Rule is also vague. Neither the Proposed Rule nor existing federal regulation defines what 'closest' means.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0244-A2.001.005
Author Name: Loomis Marion Organization: Wyoming Mining Association Designated Uses EPA is proposing that new or revised WQS based on a use attainability analysis (UAA) adopt the Highest Attainable Use (HAU) and criteria that are protective of that use. The HAU is defined as "the aquatic life, wildlife, and/or recreational use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in 131.3(g)". This definition allows subjectivity in the determination of what use is the "highest attainable" and will likely result in litigation.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0244-A2.001.007

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Author Name: Loomis Marion Organization: Wyoming Mining Association Additionally, the choice of the data used to make the "highest attainable" determination should be up to the discretion of the State. The requirement to use the "the best available data" should be removed since this is also a subjective determination
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0251-A2.001.005
Author Name: Wigal Jennifer Organization: Oregon Department of Environmental Quality I) Comment Regarding Designated Uses (40 CFR §131.10) Highest attainable use EPA must clarify that the concept of "highest attainable use" is only applicable in the circumstance where a state is conducting a use attainability analysis and proposing to adopt a use that is not protective of 101(a) uses. DEQ understands that EPA's intention is for the "highest attainable use" concept to be invoked where a state is conducting a use attainability analysis and is proposing to adopt a use that is not protective of 101(a) uses, however, this concept is not readily apparent in either the rule or the preamble. In addition, given the context and expectations for this use, it becomes even more critical for EPA to clearly define what uses it will consider to constitute a "101(a) use" and that if a state adopts a 101(a) use, this concept is not applicable and no further justification is required by the state (See comments below). EPA must clarify and emphasize that 101(a)(2) uses constitute the "highest attainable use," and adoption of 101(a)(2) uses meet this requirement. The proposed federal rules define "highest attainable use" as "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g)." Should EPA elect to keep this definition (see comment below), better definition of section 101(a)(2) uses or a clear statement about the state's discretion to define which of their uses constitute a "highest attainable use" is needed. For example, uses that protect salmonids are sufficient to protect ESA-listed salmonids. If a state has a cold-water aquatic life category, it is not required to develop a species-specific use (i.e. char or tailed frogs).

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DEQ supports ACWA's specific comment that EPA remove the term "highest" from its proposed rules and adopt ACWA's suggested revisions. In addition to the rationale provided by ACWA, Oregon DEQ points out that the term "highest" oversimplifies state use designation decisions, which are frequently more accurately characterized as refinement. Judge Acosta's February 2012 decision (NWEA v. EPA, D.Or) articulates the requirements for states when refining uses: A UAA is required where a state removes the general fish protection and propagation use or establishes less stringent subcategories. 40 C.F.R. § 131.10(g)(2). Oregon did not remove this general use or establish less stringent subcategories. Rather, Oregon's new uses continue to protect salmonids, but with more specific fish use designations. The EPA reasonably concluded that Oregon's designation of uses did not constitute a removal, but was instead the designation of uses contemplated by 40 C.F.R. § 131.10(k), which specifically does not require a UAA. Aller v. Robbins, 519 U.S. 452, 461 (1997) (holding that an agency's interpretation of its own regulation is "controlling unless plainly erroneous or inconsistent with the regulation"). Accordingly, a UAA was not required and, thus, the court will not require a UAA or an analysis of existing uses when the regulations do not. As proposed, EPA's rules do not incorporate this important distinction and could result in confusing and unintended interpretations of EPA's requirements. Rather, preamble statements and proposed rule revisions regarding highest attainable use assume a hierarchal relationship among uses. EPA's final rule needs to carefully use words such as "refinement" The rules and preamble discussion must acknowledge and incorporate the concept of "refinement" of uses rather focusing solely on uses being relatively less protective/stringent, etc.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0251-A2.001.009
Author Name: Wigal Jennifer Organization: Oregon Department of Environmental Quality Section 101(a)(2) uses The federal regulation should include a definition of CWA section 101(a) uses. DEQ supports the revisions proposed by ACWA. The designation of uses is a fundamentally important part of the water quality standards setting process because this is where the state sets the management goals for the water body. The proposed rules regarding adopting attainable uses and when use attainability analyses are required are predicated on whether a use a state has designated or is

08/04/2015 05:01 PM EDT 2-302Chapter 2 - Comment Documents Designated Uses contemplating designating constitutes a 101(a) use. EPA should, at a minimum, adopt the definition of "Uses specified in section 101(a)(2) of the Act" as proposed by ACWA. In addition, the following clarifications would be beneficial:

•Preamble discussion clarifying that fish and aquatic life uses are those uses that support the ability of fish or aquatic populations or communities to live in the water body, reproduce and sustain a healthy population over time.

•Preamble discussion clarifying that incidental, occasional or opportunistic presence of a limited number individual aquatic organisms does not equate to a 101(a)(2) use. Oregon has spent approximately 20 years working to refine or correct aquatic life uses to reflect what is either indigenous or what is attainable. DEQ has received different opinions by EPA staff and members of the public about what constitutes a use, particularly in the area of fish and aquatic life. To date, the main source of information to work through these differing viewpoints has been the CWA, which refers to and defines fish and aquatic life in various sections:

•Section 101 (a)(2): " the protection and propagation of fish, shellfish and wildlife...

•Section 302 (a): "protection and propagation of a balanced population of shellfish, fish and wildlife,...

•Section 303(d): "...assure protection and propagation of a balanced indigenous population of shellfish, fish and wildlife." Consistent with the Clean Water Act, the federal regulations should further clarify that 101(a) uses for fish and aquatic life are focused on protecting aquatic populations and communities in their native habitat.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0252-A2.001.007
Author Name: Fry Eric Organization: Peabody Energy [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] Designated Uses (s. 131.10) EPA is proposing to amend s. 131.10 to state that when new or revised WQS are adopted based on a use attainability analysis (UAA) it must adopt the highest attainable use (HAU) and criteria to protect that use. Upgrading to HAU may not make sense. Forcing HAU for designated uses including uses that may be possible from improvements or treatment

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is unreasonable. The HAU definition proposed to be added at s. 131.3(m) is the following: "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in 131.3(g)." EPA then proposes to apply the HAU definition by amending s. 131.10(g) in the following manner: "If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use." A person disagreeing over the meaning of "best available data" could allege the use adopted by a State was not the "highest attainable" and then ask a court to adopt its own determination of what "highest attainable" is. EPA's proposed language is subjective, unnecessarily broad and open to interpretation, places a larger burden on States and regulated stakeholders that would be expensive and time-consuming, and will undoubtedly instigate litigation. States are better situated to determine appropriate uses and water quality standards, and have a better understanding of the economic impact stemming from their decisions. The proposed definition above would also cause the State to have to evaluate the affordability of multiple water quality criteria to meet multiple uses to determine what use is "closest" to the statutory "fishable/swimmable" uses and still attainable. This would be a waste of State resources. The language of the regulation should be modified to require only a single UAA to determine what is not attainable, and allow the State to pull from the UAA using best professional judgment to determine the next highest use that is attainable. There should be deference to a State's choice of data and information built into the language of the regulation. Furthermore, in s. 131.10(g), "highest attainable use" should be a State determination, and the regulatory language should be changed in the following manner: "If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the [begin strikeout] highest attainable [end strikeout] use [begin new text] that it determines is the highest attainable [end new text]."
Response For response to this comment, see the following response essay(s): 5.e 12.a 

# Comment ID 0257-A1.001.014
Author Name: Harpole Chad Organization: Kentucky Chamber of Commerce Designated Uses -- 40 CFR 131.10 Under 40 CFR 131.1(g), EPA is proposing to require states that remove a designated use through a use attainability analysis to "also adopt the highest attainable use and the criteria to protect that use." In the definitions at 40 CFR 131.3(m), the highest attainable use would be defined as the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in Section 101(a)(2) of the Act and attainable, as determined using best available data and

08/04/2015 05:01 PM EDT 2-304Chapter 2 - Comment Documents Designated Uses information through a use attainability analysis defined in Section 131.3(g). The concept of establishing the highest attainable use ("HAU") is also a component of a water quality standard variance under 40 CFR 131.14.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0259-A2.001.009
Author Name: Naylor Char Organization: Puyallup Tribe of Indians Furthermore, we agree with the Fisheries Commission's assessment that when a 101(a)(2) use is not attainable, more clarification needs to be provided on what constitutes the highest attainable use to ensure water quality is not degraded to the detriment of the treaty-reserved resources and tribal members' health. To be effective, methods for determining "highest attainable use" must be specified in the definition and included in the rule. This includes a robust economic analysis like that used for a permanent downgrade of a use (as in a Use Attainability Analysis) to determine what is "feasible". Regardless of the outcome of the economic analysis, EPA should not allow the state to downgrade a use (either temporarily or permanently) if it results in insufficient protections of tribally reserved treaty rights.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0261-A2.001.003
Author Name: Bartlett Drew Organization: Florida Department of Environmental Protection I. Proposed Revisions to § 131.3 (Definitions). We support ACWA's position that the new definition is not needed and could cause confusion in States, where uses are merely different, rather than hierarchical, and support ACWA's recommended changes to § 131.10(g) that focus on designation and protection of appropriate uses. If EPA decides to keep the definition of "highest attainable use," the Department recommends that EPA not use the term "closest" when describing uses that are most similar to the uses specified in section 101(a)(2) of the Clean Water Act. EPA should consider using the term "most similar to."

08/04/2015 05:01 PM EDT 2-305Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0262-A2.001.007
Author Name: Rawlings Laurent Organization: Home Builders Association of Kentucky [This excerpt contains red-line/strikeout text. Refer to the original document for recommended edits.] Designated Uses (Section 131.10) The proposal seeks to amend Section 131.10 to state that when new or revised Water Quality Standards are adopted based on a use attainability analysis (UAA) it must adopt the highest attainable use (HAU) and criteria to protect that use. Such a change does not appear logical - forcing HAU for designated uses including uses that may be possible from improvements or treatment is unreasonable. The following addition to the definition of HAU is proposed at Section 131.3(m): "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in 131.3(g)." This is followed by EPA's proposal to then apply that HAU definition by amending Section 131.10(g) with the following: "If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use." This proposed language is subjective, needlessly broad and abstract, places a larger burden on the Commonwealth and regulated stakeholders, and will undoubtedly lead to litigation. Anyone disagreeing with the definition of "best available data" could allege the use adopted by Kentucky was not the "highest attainable" and then ask of a court that it adopt what it has determined to be "highest attainable." The proposed definition above would also force the Commonwealth to evaluate the affordability of multiple water quality criteria to meet multiple uses to determine what use is "closest" to the statutory "fishable/swimmable" and still attainable - clearly a waste of Kentucky's resources. The language of the regulation should be modified to require only a single UAA to determine what is not attainable and allow Kentucky to pull from the UAA using best professional judgment to determine the next highest use that is attainable. There should be deference to Kentucky's choice of data and information built into the language of the regulation. Moreover, in Section 131.10(g), "highest attainable use" should be determined by the State of Kentucky, and the regulatory language should be changed as follows: "If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the [begin strikeout] highest attainable [end strikeout] use that it determines is the highest attainable."
Response For response to this comment, see the following response essay(s):

08/04/2015 05:01 PM EDT 2-306Chapter 2 - Comment Documents Designated Uses

5.e 

# Comment ID 0264-A2.001.005
Author Name: Chard-McClary Shellie Organization: Association of Clean Water Administrators [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] I. Designation of Uses 1) "Highest" attainable use may be a misnomer in some instances EPA proposes to include the concept of "highest attainable use" (HAU).[FN1] While ACWA supports the concept of evaluating and adopting WQS that include attainable uses and reflect achievable water quality conditions in the course of developing a use attainability analysis (UAA), ACWA considers the use of the term "highest" to be an inaccurate portrayal of use decisions.[FN2] EPA's preamble provides examples related to aquatic life uses and notes circumstances where a state or tribe may be able to demonstrate that a use supporting a particular class of aquatic life is not attainable. [FN3] EPA further notes that in such a situation EPA's expectation is that the aquatic life use not be removed altogether if some intermediate aquatic life use is attainable. [FN4] ACWA generally agrees with these statements, but we are concerned that these examples oversimplify the use designation decisions confronted by states. EPA's statements regarding HAUs assume a hierarchal relationship among uses, which in some cases may be accurate, but frequently, uses merely may be different. For example, some states have aquatic life uses for different temperature and dissolved oxygen criteria that are tailored to the needs of different aquatic communities and life stages. In this system, one use is no more protective than another use, rather, they each are tailored to protect cold water communities with the water quality conditions suitable for each. As such, these uses are appropriately all considered to be uses specified in section 101(a)(2) of the Act, although their criteria may differ. Similarly, a waterbody that is appropriately designated a warm water fishery is and should be fully considered a use specified in section 101(a)(2) of the Act. Designating it otherwise (with expectations for colder temperatures) would be inappropriate. A similar situation may arise where a state takes a uniform approach to protecting, for example, lakes, wetlands, run of river reservoirs, and impoundments, but later has sufficient data to differentiate the water quality needs among these different waterbody types and can tailor standards to those specific waterbody needs and functions. This does not assign or prescribe a level or hierarchy based on value or importance of one need or function over another, but simply acknowledges a difference in what is needed to protect each aspect of the resource. EPA's goals would be betterserved by deleting the term "highest" and focusing more appropriately on the desired outcome of the UAA processdesignation of appropriate uses that reflect attainable goals and protective water quality conditions. Suggested revision: § 131.3(m) [begin strikeout] Highest attainable use is the aquatic life, wildlife, and/or recreation use that is both closest

08/04/2015 05:01 PM EDT 2-307Chapter 2 - Comment Documents Designated Uses to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in 131.3(g). [end strikeout] [FN1] 78 Fed. Reg. 54518 at p. 28, col. 1. [FN2] At least one state supports the language on the highest attainable use because it clarifies and strengthens their ability to protect water quality where a use cannot be attained. [FN3] See 78 Fed. Reg. 54518 at p. 8. [FN4] Id. at p. 7, col. 2.

Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0264-A2.001.010
Author Name: Chard-McClary Shellie Organization: Association of Clean Water Administrators [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 3) Clarification on uses specified in section 101(a)(2) of the Act Given the proposed clarifications and requirements that relate to uses specified in section 101(a)(2) of the Act, EPA should clarify in any final rule that uses specified in section 101(a)(2) of the Act are those uses adopted by states that require full protection of aquatic life and recreation. EPA should further explain that those uses protected by EPA's recommended 304(a) criteria (or other criteria demonstrated to be fully protective of those uses) are considered uses specified by section 101(a)(2) of the Act. Suggested revision: § 131.3(m) [begin new text] Uses specified in section 101(a)(2) of the Act include those uses designated by a state that meet the stated objective for "protection and propagation of fish, shellfish, and wildlife" and provide for "recreation in and on the water." Uses that are consistent with this definition and are protected by section 304(a) criteria or other criteria demonstrated to be fully protective of those uses shall be considered uses specified in section 101(a)(2) of the Act. [end new text]

Response

08/04/2015 05:01 PM EDT 2-308Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0267-A1.001.002
Author Name: Ingle April Organization: Georgia River Network Designated Uses: We support EPA's proposal to clarify that if a state or tribe removes a designated use (via a Use Attainability Analysis), that use should be replaced with the "highest attainable use" rather than allowing states to pick a much less protective use.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0270-A1.001.003
Author Name: Todd Andrew Organization: Colorado Water Quality Control Commission II. Designated Uses The Commission supports designating state waters for the highest attainable use and appreciates EPA's intention to provide states flexibility in determining whether to utilize existing use categories or establish additional categories or subcategories of uses. The Commission has some concerns about how precise its use categories or subcategories would have to be in order to satisfy EPA's concept of highest attainable use. In Colorado where a water body does not support the designated use, rather than removing that designated use the Commission often adopts a site specific standard that is protective of the expected condition for that water body. Nevertheless, the Commission has some remaining concern regarding EPA's expectation that use categories or subcategories be very finely parsed. While the Commission shares EPA's commitment to protecting public health, EPA's discussion regarding the meaning of CWA section 101(a)(2) uses to include "consumption of aquatic life" is not consistent with statutory language. In section 101(a)(2), Congress states that the goal of water quality is to provide "for the protection and propagation of fish, shellfish, and wildlife and provide[] for recreation in and on the water...." The Commission is concerned with EPA's extension of this provision to also encompass protection of public health through consumption of aquatic life.
Response

08/04/2015 05:01 PM EDT 2-309Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0271-A1.001.003
Author Name: Montoya Victor Organization: Pueblo of Sandia 2. Amendment of paragraph (g) of § 131.10. The Pueblo of Sandia agrees with this revision and the added definition of the highest attainable use (HAU). The Pueblo of Sandia's ceremonial designated use of waters has played an important role in effective implementation of the CWA in the past and with the changes, in the future.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0272-A2.001.010
Author Name: Jennifer Chavez Janette Brimmer Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 2. Highest Attainable Use. EPA's proposed requirement that a state must protect to the highest attainable use when proposing to lessen protection for a water body based upon a UAA, is an improvement to the UAA paradigm and the Water Protection Groups support this requirement. 78 Fed. Reg. at 54,522. The proposed language needs adjusting however, because it creates a tension between the two sentences. The proposed rule language states: If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use and the criteria to protect that use. To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use. 78 Fed. Reg. at 54,544. Instead, Section 131.10(g) should state explicitly that states retain the discretion to use their existing categories, but only if an existing category protects the highest attainable use. If a state's existing categories leave a gap between the use that has been determined "unattainable" and what should be the highest attainable use, then states should not have the same discretion, but should be required to adopt a new category or subcategory of use in order to protect the highest attainable use.

08/04/2015 05:01 PM EDT 2-310Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0275-A2.001.004
Author Name: Reeves Sarah Organization: Colorado Monitoring Framework Designated Uses Highest Attainable Use - § 131.3(m) and 131.10(g). The CMF is concerned that the proposed definition of highest attainable use will remove the flexibility of each state to define the highest attainable use. Accordingly, we suggest a revision to § 131.10(g) as follows: (g)If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use and the criteria to protect that use that it determines is the highest attainable.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0278-A2.001.005
Author Name: Hornback Chris Organization: National Association of Clean Water Agencies Highest Attainable Use NACWA agrees that where a state revises its WQS based on a determination that a current designated use is not attainable, it would be appropriate for the state, using its best professional judgment and the best available data and information, as determined by the state, to adopt the "next best" or "highest attainable use." Combined with using more refined designated use structures, as EPA contemplates in the proposal, this provision could help correct the recurring misperception that use attainability analyses (UAAs) inevitably lead to the complete removal of a use, as opposed to a more properly refined, or accurately defined, use that is, in fact, attainable.
Response

08/04/2015 05:01 PM EDT 2-311Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0279-A2.001.005
Author Name: Coyne Kevin Organization: West Virginia Department of Environmental Protection Designation of Uses - In regard to the proposed changes involving Use Designations, DEP agrees with ACWA that EPA's proposed changes represent an oversimplification of the use designation process and that EPA should focus on the designation of appropriate and attainable uses and should abandon the Highest Attainable Use (HAU) concept. DEP feels that HAUs will essentially describe generalized use designations that are incongruent among states; therefore, in order to correctly describe attainable uses, states will be required to perform lengthy and cost-prohibitive Use Attainment Analyses (UAAs). This process would be overly burdensome for states and may be construed as usurping state's authority regarding use designation.
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0280-A2.001.004
Author Name: Aspatore Amanda Organization: National Mining Association Designated Uses EPA proposes to require that states adopting new or revised water quality standards (WQS) based on a use attainability analysis (UAA), must adopt the highest attainable use (HAU) as well as criteria to protect that use. EPA also defines HAU to include a reference to "using best available data and information." NMA is concerned that this requirement, rather than providing clarification, will open the door for administrative challenges and lawsuits over what constitutes the "best available data." Furthermore, EPA has not justified this change with any information showing that, without such a requirement, states have not been using the "best available data," however that may be defined, when determining designated uses. NMA urges EPA instead to include language clarifying that designated uses are determined by the states based on their best professional judgment relying on scientifically defensible data. Additionally, EPA should clarify that if a state adopts new or revised WQS based on a UAA, the state shall adopt the use that the state determines is the highest attainable.

08/04/2015 05:01 PM EDT 2-312Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0282-A2.001.005
Author Name: Gildersleeve Melissa Organization: State of Washington, Department of Ecology 2. Designated uses The proposed federal definition for "highest attainable use" addresses the named Clean Water Act 101(a)(2) uses, but omits the overarching concept of restoration of the integrity of the nation's waters that is part of section 101(a). The concept of restoration includes the concept of the return to an earlier and/or natural condition. In many water bodies, the section 101(a)(2) uses do not reflect the natural conditions of a water body, and states should have the ability to choose whether they want to work toward attainment of a non-natural section 101(a)(2) use (such as further development of a perennial warm water fishery present in an area that is naturally an intermittent flow stream without fish), or, restoration or maintenance of a natural system for water bodies where the natural condition is not reflected by the CWA 101(a)(2) uses. Ecology recommends that this definition be expanded to add language that encompasses the concept of "Clean Water Act 101(a)(2) uses and/or the natural condition (or restoration of the integrity of the water)."
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0283-A1.001.005
Author Name: Thorme Melissa Organization: Downey Brand Attorneys LLP on behalf of several clients C. Designated Uses The presumed goal for Clean Water Act use designation is to assign use designations that accurately reflect the highest attainable uses, which is also reflected in this regulatory proposal. However, where there is too much work involved in making these more accurate use designations, the fear is that no changes will ever be made. The regulations should encourage, rather than discourage, modifying use designations to be as accurate and defensible as possible. [FN1] Therefore, the requirements of a Use Attainability Analysis ("UAA") should be better described so that States do not fear that this is too daunting of a task. This could be accomplished by removing the words "structured scientific" from

08/04/2015 05:01 PM EDT 2-313Chapter 2 - Comment Documents Designated Uses the description of the assessment required in the definition of a UAA in 40 C.F.R. §131.3(g). [FN1] "Defensible use designations are critical for many reasons. For example, designated uses and water quality criteria or objectives form the foundation for regulation of waste discharges and for TMDL development. Further, accurate and defensible use designations are important to ensure that the Basin Plan is a useful and credible document.",(SWRCB Order No. WQ 2005-04 at p. 14, AA 00959.)
Response For response to this comment, see the following response essay(s): 5.e 

# Comment ID 0284-A2.001.005
Author Name: Gildersleeve Melissa Organization: State of Washington, Department of Ecology 2. Designated uses The proposed federal definition for "highest attainable use" addresses the named Clean Water Act 101(a)(2) uses, but omits the overarching concept of restoration of the integrity of the nation's waters that is part of section 101(a). The concept of restoration includes the concept of the return to an earlier and/or natural condition. In many water bodies, the section 101(a)(2) uses do not reflect the natural conditions of a water body, and states should have the ability to choose whether they want to work toward attainment of a non-natural section 101(a)(2) use (such as further development of a perennial warm water fishery present in an area that is naturally an intermittent flow stream without fish), or, restoration or maintenance of a natural system for water bodies where the natural condition is not reflected by the CWA 101(a)(2) uses. Ecology recommends that this definition be expanded to add language that encompasses the concept of "Clean Water Act 101(a)(2) uses and/or the natural condition (or restoration of the integrity of the water)."
Response For response to this comment, see the following response essay(s): 5.e


# 5.F - DU - HAU Comment ID 0207-A1.001.004
Author Name: Bodine Susan

08/04/2015 05:01 PM EDT 2-314Chapter 2 - Comment Documents Designated Uses Organization: American Farm Bureau Federation et al. Designation and Removal of Uses - proposed § 131.10:

• Highest attainable use -This requirement likely will result in litigation over what is the highest attainable use. The determination of what is the appropriate use should be made by States.
Response For response to this comment, see the following response essay(s): 5.f 5.e


# 5.F.I - DU - ADOPTING HAU Comment ID 0119-A1.001.004
Author Name: Lemke Lee Organization: Georgia Mining Association Designated Uses Given the effort and expenditure required to rebut the "presumption of attainability" (78 FR 54522) currently in place in Part 131, the proposed requirement to require states and tribes to adopt the Highest Attainable Use (HAU) creates an untenable situation in which states and tribes will be required to expend already limited resources to rebut this presumption. In practice, the presumption will go without rebuttal, and many waters could be subject to CWA HAU designations regardless of the reality of the individual water body's circumstances.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section A 5.e 5.i 

# Comment ID 0123-A1.001.009
Author Name: Chin Ryan

08/04/2015 05:01 PM EDT 2-315Chapter 2 - Comment Documents Designated Uses Organization: NA The HAU designation seems appropriate, as it will allow for flexibility of states and tribes to designate and revise uses, but requires the states and tribes in rebutting the highest attainable use presumptions until the appropriate designation is classified. As noted in EPA's example, this requirement will protect a water body even when its use to support a class of aquatic life is not attainable but when the water body can support survival of less sensitive aquatic organisms, because now the states and tribes cannot simply remove the aquatic life use designation without determining whether there is alternative 101 (a) (2) category that is attainable. The proposal also does not unnecessarily impede on states' and tribes' respective responsibilities and powers, as states and tribes may at their discretion utilize their current use categories, develop new categories, or adopt another use that may be location specific. The EPA is only further clarifying the requirements of states and tribes WQS, which are submitted to the EPA for review, to demonstrate that if the UAA determination demonstrates a use is not attainable, in order to comply with the requirements the state and tribe will need to adopt use designations that continue to serve the goal of protecting the highest attainable use unless no use specified is attainable. As HAU is defined in the proposal, the EPA allows discretion to states and tribes under the CWA to meet the HAU requirement whenever it is determined to do so, without the EPA requiring the states and tribes to revise their current categorization schemes. Therefore, the EPA allows the states and tribes to determine their own level of specificity in determining its designated use categories. Moreover, the requirement requires states and tribes to consider both what is currently attained and what is attainable in the future, in an effort to reach the CWA goal to both maintain and restore the nation's waters. By outlining three different alternatives, the EPA allows the states and tribes to employ their own methods and categorizations, so long as they meet the minimum requirement of considering HAU when conducting UAA.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section A 

# Comment ID 0127-A1.001.004
Author Name: Sawtelle Andrew Organization: NA The proposed changes to §131.10(g) serve two distinct purposes that exemplify and magnify the strengths of federal environmental regulation. The explicit HAU requirement furthers the goals of the CWA in an unambiguous and nationally applicable manner, while the emphasis on the States' discretion in choosing how to approach the specific use categories ensures that States can comply with the WQS requirements in a manner that is particularly suited to each State.
Response

08/04/2015 05:01 PM EDT 2-316Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section A 

# Comment ID 0127-A1.001.007
Author Name: Sawtelle Andrew Organization: NA There was also concern that states and tribes would be unduly burdened in two ways: first, they would have to assess all their waterways to determine both the current use and the HAU; second, they would have to demonstrate for each waterway that the discrepancy is based on some condition that makes the HAU unattainable. The proposed revision, through the combination of §§ 131.10(g),(j), and (k), makes it clear that the burden on the states and tribes is not as significant as early proposals might have made it appear. § 131.10(j) specifies the situations in which a state or tribe is required to conduct a use attainability analysis, and § 131.10(k) specifies the situations in which a UAA is not required. The distinction turns on both whether the use is being designated for the first time or is being removed, and whether the use being designated or removed is specified in CWA § 101(a)(2). The expanded language in §131.10(g) further makes it clear that the factors that subsection specifies are required to be considered only when a UAA is required. This is a sensible means of incorporating the new HAU requirement into the state or tribe's existing WQS procedures without both adding novel and burdensome requirements and potentially confusing the regulatory scheme. The proposed revisions simplify the process and make it clear which aspects of the WQS process are federally mandated and which are left to the discretion of the states.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section A 

# Comment ID 0134-A1.001.006
Author Name: Shea III Quinlan Organization: Edison Electric Institute Designation and Removal of Uses Highest attainable use - EPA is proposing to require States to adopt the "highest attainable use," defined as "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g)." As drafted, this requirement could engender litigation over what is the highest attainable use. To avoid this

08/04/2015 05:01 PM EDT 2-317Chapter 2 - Comment Documents Designated Uses outcome, EEI recommends that the regulations explicitly defer to states for a determination of what constitutes both "best available data" and "highest attainable use."
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section B 

# Comment ID 0145-A2.001.006
Author Name: Shea III Quinlan Organization: Edison Electric Institute Designation and Removal of Uses Highest attainable use - EPA is proposing to require States to adopt the "highest attainable use," defined as "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g)." As drafted, this requirement could engender litigation over what is the highest attainable use. To avoid this outcome, EEI recommends that the regulations explicitly defer to states for a determination of what constitutes both "best available data" and "highest attainable use."
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section B 

# Comment ID 0169-A1.001.009
Author Name: Letient Henri Organization: Teck Alaska Incorporated EPA's proposal to require adoption of the "highest attainable use" (HAU) introduces a new concept into an already complicated regulatory regime. As long as EPA recognizes the states' discretion on how to implement this new concept, Teck does not oppose this proposed revision. But EPA should not place new regulatory hurdles before a state agency that is trying to accommodate natural conditions into its regulatory scheme.

08/04/2015 05:01 PM EDT 2-318Chapter 2 - Comment Documents Designated Uses EPA discusses the objectives and intent of the HAU definition in the preamble to the proposed rule. The preamble discussion is clear in that EPA's intent of this clarifying definition is to authorize states to establish alternative aquatic life uses and/or recreational uses to those uses identified at CWA Section 101(a)(2), when a UAA demonstrates that such uses are not fully attainable. The preamble uses an example of where: " ... a use supporting a particular class of aquatic life is not attainable. However, if some less sensitive aquatic organisms are able to survive at the site under current or attainable future conditions, the goals of the CWA are not served by simply removing the aquatic life use designation and applicable criteria without determining whether there is some alternate 101(a)(2) use or subcategory of such a use that is feasible to attain." (78 Fed. Reg. 54523) This issue is particularly relevant to Teck, because the construction of Red Dog Mine and the high level of treatment applied to its effluent discharge has resulted in a higher-level aquatic life use (additional species of fish and invertebrates) in Red Dog Creek compared to the creek's documented, pre-mine condition.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section A 

# Comment ID 0171-A2.001.011
Author Name: Borkowski Winston Organization: Hopping Green & Sams on behalf of CF Industries, Inc. An example provided in the preamble to the proposed rule illustrates the burdensome demonstration, if indeed even possible, that would be necessary should the proposed provision and definition become final: For example, as part of the UAA process, a state or tribe may be able to demonstrate that a use supporting a particular class of aquatic life is not attainable. However, if some less sensitive aquatic organisms are able to survive at the site under current or attainable future conditions, the goals of the CWA are not served by simply removing the aquatic life use designation and applicable criteria without determining whether there is some alternate 101 ( a)(2) use or subcategory of such a use that is feasible to attain. The UAA process can be used to identify the highest aquatic life use that is attainable (i.e., highest attainable use). Under this proposal, the state or tribe would be required to designate that highest attainable use. However, as noted above, states and tribes have broad discretion to determine the appropriate level of specificity to use in identifying and defining designated uses, and nothing in this proposal is intended to narrow that discretion. (Emphasis added). This language advises the states that a UAA must now be taken to the species level and project what conditions that may support those species-in the future. The preamble both mandates an intricate level of specificity necessary in establishing the HAU, stripping the states of virtually all discretion, and then asserts that discretion remains untouched.

08/04/2015 05:01 PM EDT 2-319Chapter 2 - Comment Documents Designated Uses It is also unclear what problem the proposed amendments are intended to address. Any suggestion that UAAs are routinely approved and that the States are "downgrading" waters to avoid having to develop TMDLs for waters that are otherwise impaired is simply at odds with reality. A recent query to FDEP confirmed that FDEP has never received nor has EPA approved a UAA in support of a request to remove a designated use or "downgrade" a Florida water body. [FN6] The UAA process is already so burdensome that it is rarely if ever used and, if a UAA was prepared and submitted to a state or EPA in support of removing one or more uses, that action would be final agency action subject to third party legal challenges at both the state and federal level. In Florida, FDEP must adopt a formal rule to change its water quality standards whether changing a designated use or a water quality criterion. Under Florida law, FDEP rules may be challenged resulting in formal evidentiary hearing before an administrative law judge (ALJ) provided by Florida's Division of Administrative Hearings (DOAH). If the ALJ were to issue a final order approving the rule (which removed one or more uses), that final order could be appealed to the state appeals court. If FDEP ultimately prevailed and its rule changing the designated use (or uses) ultimately survived challenge at the state level, the rule would then have to be forwarded to EPA for review as a change to Florida water quality standards. Should EPA approve the change to Florida standards, EPA's decision could be challenged under the federal Administrative Procedures Act as final agency action in the U.S. District Court. In summary, the proposed amendments mandate an additional layer of process and analysis complicating a process that is already overly burdensome and takes away the very discretion from the states EPA claims it has no intention of affecting, with its proposed rule revisions. The proposed amendments are contrary to Director King's 2006 memorandum reinforcing the importance of EPA working with state and tribal partners "to make the UAA process operate more effectively." [FN6] Eric Shaw, Environmental Manager, Standards Development Section, response to e-mail query. Prospect Lake, an artificial water body in Broward County was changed from Class I to Class III in response to a petition asserting that the constructed pit was not used for potable water purposes; with groundwater as its sole source of water, water is transferred to the "lake" from the C-14 canal for aquifer recharge purposes. See Broward County Integrated Water Resources Plan (2009) at: http://www.broward.org/IWRP/Documents/IntergratedWaterResourcePlan.pdf

. Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 5.f.i: Section D 5.f.i: Section E 3.a 12.a 

# Comment ID 0173-A1.001.011

08/04/2015 05:01 PM EDT 2-320Chapter 2 - Comment Documents Designated Uses
Author Name: Borkowski Winston Organization: Hopping Green & Sams on behalf of CF Industries, Inc. An example provided in the preamble to the proposed rule illustrates the burdensome demonstration, if indeed even possible, that would be necessary should the proposed provision and definition become final: For example, as part of the UAA process, a state or tribe may be able to demonstrate that a use supporting a particular class of aquatic life is not attainable. However, if some less sensitive aquatic organisms are able to survive at the site under current or attainable future conditions, the goals of the CWA are not served by simply removing the aquatic life use designation and applicable criteria without determining whether there is some alternate 101 ( a)(2) use or subcategory of such a use that is feasible to attain. The UAA process can be used to identify the highest aquatic life use that is attainable (i.e., highest attainable use). Under this proposal, the state or tribe would be required to designate that highest attainable use. However, as noted above, states and tribes have broad discretion to determine the appropriate level of specificity to use in identifying and defining designated uses, and nothing in this proposal is intended to narrow that discretion. (Emphasis added). This language advises the states that a UAA must now be taken to the species level and project what conditions that may support those species-in the future. The preamble both mandates an intricate level of specificity necessary in establishing the HAU, stripping the states of virtually all discretion, and then asserts that discretion remains untouched. It is also unclear what problem the proposed amendments are intended to address. Any suggestion that UAAs are routinely approved and that the States are "downgrading" waters to avoid having to develop TMDLs for waters that are otherwise impaired is simply at odds with reality. A recent query to FDEP confirmed that FDEP has never received nor has EPA approved a UAA in support of a request to remove a designated use or "downgrade" a Florida water body. [FN6] The UAA process is already so burdensome that it is rarely if ever used and, if a UAA was prepared and submitted to a state or EPA in support of removing one or more uses, that action would be final agency action subject to third party legal challenges at both the state and federal level. In Florida, FDEP must adopt a formal rule to change its water quality standards whether changing a designated use or a water quality criterion. Under Florida law, FDEP rules may be challenged resulting in formal evidentiary hearing before an administrative law judge (ALJ) provided by Florida's Division of Administrative Hearings (DOAH). If the ALJ were to issue a final order approving the rule (which removed one or more uses), that final order could be appealed to the state appeals court. If FDEP ultimately prevailed and its rule changing the designated use (or uses) ultimately survived challenge at the state level, the rule would then have to be forwarded to EPA for review as a change to Florida water quality standards. Should EPA approve the change to Florida standards, EPA's decision could be challenged under the federal Administrative Procedures Act as final agency action in the U.S. District Court. In summary, the proposed amendments mandate an additional layer of process and analysis complicating a process that is already overly burdensome and takes away the very discretion from the states EPA claims it has no intention of affecting, with its proposed rule revisions. The proposed amendments are contrary to Director King's 2006 memorandum reinforcing the importance of EPA working with state and tribal partners "to make the UAA process operate more effectively."

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[FN6] Eric Shaw, Environmental Manager, Standards Development Section, response to e-mail query. Prospect Lake, an artificial water body in Broward County was changed from Class I to Class III in response to a petition asserting that the constructed pit was not used for potable water purposes; with groundwater as its sole source of water, water is transferred to the "lake" from the C-14 canal for aquifer recharge purposes. See Broward County Integrated Water Resources Plan (2009) at: http://www.broward.org/IWRP/Documents/IntergratedWaterResourcePlan.pdf

. Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 5.f.i: Section D 5.f.i: Section E 3.a 12.a 

# Comment ID 0175-A1.001.004
Author Name: Canton Steven Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. 2.0Designated Uses Section 131.10 Designation of uses EPA is proposing to amend this section such that when new or revised water quality standards are adopted based on a use-attainability analysis (UAA), they must achieve the highest attainable use (HAU) and include criteria to protect that use. HAU is defined (in section 13.3(m)) as "the aquatic life, wildlife, and/or recreation [use] that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in 131.3(g)." Additionally, EPA is proposing to amend section 131.10(g) to mandate that when a UAA is required by 131.10(j), the factors listed in 131.10(g) must be used.

a. The revisions in this section and the use of HAU throughout the rule will impose an expensive, significant, and timeconsuming burden on the states, tribes, and regulated stakeholders. The language in this section is unnecessarily broad and vague. For example, the changes to 131.10(g) state: "States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use." Will the states actually be allowed to develop their own categories or subcategories on their own, or will this require discussion with and formal approval by the EPA? How specific do the categories need to be? If the process is truly at the States' discretion, it is not appropriate to incorporate this entire section into the rule. States shou ld have the authority to determine and assign appropriate uses and accompanying water quality standards and not the EPA. States have a better understanding of site-specific factors that limit uses from being attained including, but not

08/04/2015 05:01 PM EDT 2-322Chapter 2 - Comment Documents Designated Uses limited to, substantial and widespread social and economic impacts.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section B 5.f.i: Section C 5.f.i: Section E 5.f.i: Section F 12.a 

# Comment ID 0175-A1.001.007
Author Name: Canton Steven Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. The requirement to determine the HAU would require a significant amount of additional data, including but not limited to an evaluation of non-water quality standards (WQS) parameters, such as basin geomorphic processes, landscape assessments, and hydrologic modeling.

e. Additionally, it is not clear whether 131.10(g)(3) "human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place" would ever prevent a HAU from being imposed due to the cost or consequences to an existing point source.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 5.f.i: Section D 

# Comment ID 0175-A1.001.009
Author Name: Canton Steven Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. g. The preamble states that when conducting the HAU review, states and tribes "should consider not only what is currently attained, but what is attainable in the future after achievable gains in water quality." Predicting future

08/04/2015 05:01 PM EDT 2-323Chapter 2 - Comment Documents Designated Uses conditions, particularly when ‘future' and ‘achievable' are not defined in the rule, places an impossible burden on the states and tribes and their regulated stakeholders. The preamble then states that this prospective analysis may include identifying current and expected conditions, evaluating the effectiveness of best management practices (BMPs), and examining the efficacy of treatment and technology from engineering studies using models, loading calculations and other tools. Although this section of the proposed rule uses the terms "should" and "may," our experience is that notwithstanding the permissive phraseology, states, tribes, and stakeholders are inevitably required by EPA to undertake such "considerations," "analyses," "models," etc.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 8.c 

# Comment ID 0175-A1.001.011
Author Name: Canton Steven Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. i. The preamble suggests using categories that reflect the "naturally expected aquatic life use for intermittent streams that could be applied to multiple streams in the state." This will be problematic in many instances, particularly when evaluating ephemeral and intermittent headwater habitat streams, where naturally expected populations aren't easily defined, and vary quite widely among seemingly comparable sites. j. The concept of ‘highest attainable use' as described in the preamble to address individual uses and parameters, seems to override the classification of water bodies on the 303(d) list that are "impaired." The HAU envisioned by EPA seems to imply that there is always some attainable use, even if certain parameters are not in attainment. This assumption ignores basic ecological concepts, such as "limiting factors" and "bottleneck theory", where there are situations in which aquatic populations are constrained by a factor that is not in attainment regardless of the other water quality parameters. The use of site-specific criteria developed as a result of a UAA that is currently used by states such as Colorado is protective of the HAU concept, and is a more practical alternative to the newly minted HAU. k. The public comments made during the August 24 and 26, 2010 public listening sessions reflect that many (or most) of the commenters were concerned about the identification and implementation of the HAU. The proposed rule does little to alleviate those concerns. As the HAU has consistently been a questionable aspect of the proposed rule, its inclusion here seems unnecessary and problematic given existing regulations.
Response For response to this comment, see the following response essay(s):

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5.f.i 5.f.i: Section C 5.f.i: Section F 

# Comment ID 0176-A2.001.004
Author Name: Lazarus Jay Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM) Designated uses Currently, §131.10 Designation of uses states: Each State must specify appropriate water uses to be achieved and protected. The classification of the waters of the State must take into consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes including navigation. As specified in the Act, classification of waters must take into consideration agricultural uses. DPNM is concerned that under this proposal, the state or tribe would be required to designate that Highest Attainable Use (HAU) without appropriate inclusion of agricultural interests. Receiving streams in dairy regions in New Mexico already have WQS that are reflective of their existing designated uses.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 

# Comment ID 0178-A2.001.004
Author Name: Burnell Barry Organization: Idaho Department of Environmental Quality EPA needs to more fully consider the ideas of "highest attainable" use and the "closest use" to the CWA 101(a)(2) use goals explained in the preamble. The phrase "closest to the uses specified in section 101(a)(2)" only has meaning if a 101(a)(2) use is replaced with a use that is not a 101(a)(2) use. This leaves us wondering what EPA's intent is when one 101 (a)(2) use is replaced with another, that is, for a sub-category of aquatic life or recreation? And if we are outside 101(a)(2), what level of use-refinement is adequate to come 'close' enough?
Response

08/04/2015 05:01 PM EDT 2-325Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section B 

# Comment ID 0181-A2.001.005
Author Name: Sims Shaun Organization: Wyoming Association of Conservation Districts Page 54524 – C. Designated Uses: 3. Rational for Revision, 2. Revise the current designated use structure to include more refined uses and / or sub-categories of uses: If a state or tribe finds that its only option upon determining that such a general use category is not attainable is to remove it altogether, a state or tribe may wish to consider revising its current designated use framework to include more refined uses and / sub-categories, and adopt criteria to protect those uses. COMMENT: WACD supports WDEQ's current designated use framework and will continue to work with WDEQ on future revisions if needed. WACD again questions the need for creating new sub-categories of designated uses. This should be a state decision.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 

# Comment ID 0185-A1.001.005
Author Name: Poltak Ronald Organization: New England Interstate Water Pollution Control Commission Furthermore, the NEIWPCC states are very concerned that the development of new use categories and associated water quality criteria could become burdensome. States will have difficulty performing UAAs if they essentially will be required to develop unique water quality criteria for each use change. How specific must state classification systems for designated uses be?
Response For response to this comment, see the following response essay(s):

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5.f.i 5.f.i: Section C 12.a 

# Comment ID 0186-A1.001.003
Author Name: Claff Roger Organization: American Petroleum Institute

•API supports EPA's clarification in the proposal that the states have "broad" discretion in terms of the specificity of identifying designated uses and determining when such uses are being, or can be, attained.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section A 

# Comment ID 0186-A1.001.018
Author Name: Claff Roger Organization: American Petroleum Institute API supports EPA's clarification in the proposal that the states have "broad" discretion in terms of the specificity of identifying designated uses and determining when such uses are being, or can be, attained. The proposed revised language at 40 CFR 131.10(g) allows states to use their discretion to "utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use." API supports the addition of this language that provides states with flexibility in defining more specific CWA Section 101(a)(2) designated uses when scientific data support such use designations.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section A 5.f.i: Section C

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# Comment ID 0189-A1.001.007
Author Name: Margaret Watkins Nancy Schuldt Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa Environmental Department Designated Uses: Highest Attainable Use We support EPA's proposed requirement to the existing Use Attainability Analysis (UAA) rules that a state/authorized tribe must protect to the highest attainable use, when proposing to weaken protection for a water body.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section A 

# Comment ID 0192-A1.001.004
Author Name: Reeder Thomas Organization: North Carolina Department of Environment and Natural Resources 2) Distinction of appropriate "use" Although EPA notes in the preamble that "states and tribes are not required to develop new use categories or subcategories to meet the HAU requirement", NC DWR is concerned that the proposed text is unclear regarding how this concept should/could be implemented. Development of unique water quality criteria for, as yet undefined, HAU categories may have unintended consequences such as preventing us from conducting UAAs in an effective manner. NC DWR requests that EPA clarify what is required to adopt an attainable use and also to clarify that the requirement to identify the HAU is exclusively tied to the UAA process and not to other requirements of the WQS program.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 

# Comment ID 0194-A1.001.006

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Author Name: Stonestreet Robert Organization: West Virginia Chamber of Commerce Implementation of the proposed revisions, as detailed in §131.10, is nothing more than EPA unilaterally federalizing the decision making process regarding designated uses. It is the states' responsibility to adopt water quality standards to protect public health or welfare, enhance the quality of water, and serve the purposes of the Clean Water Act and, as defined in §§ 101(a)(2) and 303(c) of the CWA, this means that the water quality standards should: (i) provide, wherever attainable, water quality for the protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water ("fishable/swimmable"), and (ii) consider the use and value of state waters for public water supplies, propagation of fish and wildlife, recreation, agriculture and industrial purposes, and navigation. Therefore, in setting use designations of their waters, the states are to consider the "use and value" of the waters (CWA §303(2)(A)) and the states must have flexibility to manage both their water bodies and their land use and the flexibility to designate some water bodies for agriculture or industrial purposes if those uses best reflect their use and value. The effect of the proposed revisions would be to preclude the states from performing this duty. The CWA does not prohibit non-fishable uses. Instead the CWA provides the states with the authority to set water quality standards that consider the use and value of the waters for other uses than fishable/swimmable, i.e., the use for navigation or agriculture or industrial. For example, a state may have a good reason to encourage development in some watersheds, such as watersheds that have waters that are impaired or hydrologically modified or support agriculture or industrial uses, or waters with a high capacity to assimilate pollutants, while, on the other hand, the state may want to discourage development in watersheds that are truly high-quality and can be more easily protected. The important point is that the states must maintain the flexibility to designate their water uses, as Congress intended. As discussed, EPA's proposed revisions requiring the states to adopt the HAU for every water body segment would basically prohibit the states from considering the waters' "use and value" as envisioned by Congress and required by the CWA. The implementation of this prohibition is accomplished by requiring the state, when determining the HAU, to use only the six reasons in § 131.10(g) for removing a use (see 78 Fed. Reg. 54,523). Other reasons, like the "use and value" of a water) would not be acceptable. Therefore, with the proposed revisions, the EPA is, in effect, replacing the statutory consideration of "use and value" which was not the intent of the CWA.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 5.f.i: Section F 

# Comment ID 0195-A1.001.008
Author Name: Norton Ken

08/04/2015 05:01 PM EDT 2-329Chapter 2 - Comment Documents Designated Uses Organization: National Tribal Water Council Designated Uses: Highest Attainable Use EPA's proposed requirement that a state/authorized tribe must protect to the highest attainable use, when proposing to weaken protection for a water body based upon a Use Attainability Analysis (UAA), is an improvement to the existing UAA framework and the NTWC supports this requirement.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section A 

# Comment ID 0199-A1.001.005
Author Name: Rogers Gilbert Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] However, we request that EPA add a clarification to its proposed change at 40 CFR §131.10(g) regarding whether states must create new use categories or subcategories. The following edit (underlined) should be made: "To meet this requirement, States may at their discretion, utilize their current use categories or subcategories [begin new text] if they adequately describe the highest attainable use [end new text], develop new use categories or subcategories, or adopt another use which may include a location-specific use." If a state's existing designated use categories or subcategories are insufficient to protect the HAU, then the state should be required to adopt a location-specific use or develop new categories.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 

# Comment ID 0203-A1.001.009
Author Name: Christman Jim

08/04/2015 05:01 PM EDT 2-330Chapter 2 - Comment Documents Designated Uses Organization: Hunton & Williams on behalf of Utility Water Act Group 3. The Proposal Requires Designated Uses to Be More Finely Divided EPA proposes three ways of "articulating" the HAU (78 Fed. Reg. 54,524 col. 1). The state may use an existing subcategory of fishable or swimmable uses. It may enact a new regulation with subcategories. Or it may apply a use to a specific location. EPA insists that the states have "flexibility" in how specific they must be in designing use categories.
But the effect of the proposed rule changes is quite clearly to press the states for more finely divided subcategories. To make this even more burdensome, EPA recommends that states consider every HAU every three years during the triennial review. The effect of all this is to separate "uses" into smaller and more specialized subcategories, multiplying the amount of work to review and modify them, all on an unreasonably short three-year schedule, repeated infinitely.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 5.f.i: Section F 

# Comment ID 0208-A1.001.008
Author Name: Foster Wade Organization: The Fertilizer Institute III. Ambiguity and Vagueness of the "Highest Attainable Use" Requirement The proposal that regulators "shall" select the "highest attainable use" ("HAU") that is "closest" to the uses Specified in section 101(a)(2) of the CWA following a use attainability analysis not only is inflexible, it is vague and ambiguous. The Proposed Rule would alter 40 C.F.R. § 131.10(g) to require WQS regulators to adopt the HAU when adopting new or revised water quality standards through a UAA.[FN12] Thus, even though the CWA merely requires that designated uses be attainable, the Proposed Rule would subdivide "the aquatic life, wildlife, and/or recreation" use (or uses) listed together in the CWA as goals [FN13] to require states to select the one, or several, "highest" and "closest" uses to section 101(a)(2) that are demonstrably attainable or potentially attainable in a specific water body. This proposed creation of HAUs from the aspirational goals of the CWA, that would be distinct from factually "attainable" uses (which regulators would be forced to explore and identify based on factual circumstances, their own lists of uses for particular water bodies, and water-body-specific UAA information), would require a new, joint analysis of both objective and subjective information whenever regulators establish WQS. This required analysis of objective and

08/04/2015 05:01 PM EDT 2-331Chapter 2 - Comment Documents Designated Uses subjective information to arrive solely at an HAU from section 101(a) (but not section 303(c)) likely will delay WQS decisions at the state and tribal levels, consume valuable agency resources, and burden regulated entities that require CWA authorizations to operate their facilities. Moreover, requiring regulators to select the "closest" use (or uses) to the uses set forth in section 101(a)(2) could create substantial vagueness and ambiguity in practice, and invite excessive litigation by interested parties. In turn, disputes over the "closest" uses to those in section 101(a)(2) would cause delays, or other impacts, to regulated entities that depend upon a timely and accurate section of uses and criteria that will impact their CWA authorizations via new or revised WQS. For instance: it is unclear which of the "agricultural" and "industrial" uses noted in section 303(c)(2)(A) of the CWA would be "closest" to the "wildlife" use set forth in section 101(a)(2) as just one subjective goal. In the preamble to the Proposed Rule, EPA states: States and tribes have broad discretion to determine the appropriate level of specificity to use in identifying and defining designated uses, and nothing in this proposal is intended to narrow that discretion. However, the EPA has found that the clearer, more accurate, and refined the designated uses are in describing the state's or tribe's objective for a water body, the more effective those use designations can be in driving the management actions necessary to restore and protect water quality.[FN14] However, the proposed amendment to 40 C.F.R. § 131.10(g), in conjunction with the definition of an HAU, strips the states of the very discretion EPA references and the Clean Water Act mandates and makes an already onerous UAA process more complicated and burdensome and less likely to result in a state ever obtaining a credible and defensible change of designated use under § 131.10(g). The proposed amendments perpetuate a policy of discouraging designated use changes, regardless of how credible and defensible. [FN12] 78 Fed. Reg. at 54,522, 54,534, 54,543. [FN13] 33 U.S.C. § 1251(a)(2) (setting a "goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water," rather than separate goals that subdivide these uses) (emphasis added). Importantly, Congress did not describe its aspirational goals in section 101 of the CWA as "and/or" propositions. This point cuts strongly against EPA's use of section 101(a)(2) as a list of preferred and/or presumptively attainable uses, instead of aspirational goals. [FN14] 78 Fed. Reg. at 54,522-23 (emphasis added).
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section B 5.f.i: Section E

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# Comment ID 0208-A1.001.010
Author Name: Foster Wade Organization: The Fertilizer Institute An example provided in the preamble to the Proposed Rule illustrates the impossibly burdensome demonstration that would be necessary should the proposed provision and definition become final: For example, as part of the UAA process, a state or tribe may be able to demonstrate that a use supporting a particular class of aquatic life is not attainable. However, if some less sensitive aquatic organisms are able to survive at the site under current or attainable future conditions, the goals of the CWA are not served by simply removing the aquatic life use designation and applicable criteria without determining whether there is some alternate 101(a)(2) use or subcategory of such a use that is feasible to attain. The UAA process can be used to identify the highest aquatic life use that is attainable (i.e., highest attainable use). Under this proposal, the state or tribe would be required to designate that highest attainable use. However, as noted above, states and tribes have broad discretion to determine the appropriate level of specificity to use in identifying and defining designated uses, and nothing in this proposal is intended to narrow that discretion.[FN15] This language advises the states that a UAA must now be taken to the species level and must project what conditions that may support those species in the future. The preamble both mandates an intricate level of specificity necessary in establishing the HAU, stripping the states of virtually all discretion, and then asserts that state discretion remains untouched. Thus, in addition to the revisions set forth in the ANPC comments (which comments, as noted previously, are incorporated by reference), EPA should revise the Proposed Rule to focus its clarifications upon the CWA's language of objectively attainable uses, rather than "highest" or "closest" attainable uses to those articulated in section 101(a). [FN15] Id. at 54,523 (emphasis added).
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section B 5.f.i: Section C 5.f.i: Section E 1.c 

# Comment ID 0212-A1.001.008
Author Name: Norton Kelly

08/04/2015 05:01 PM EDT 2-333Chapter 2 - Comment Documents Designated Uses Organization: Arizona Mining Association Aspects of proposal with which AMA has concerns or questions Highest attainable use (proposed § 131.10(g)): EPA proposes that if a state adopts new or revised water quality standards after a use attainability analysis, then the state must adopt the "highest attainable use and the criteria to protect that use." The proposed rule goes on to provide that states may utilize existing use categories and sub
categories when doing this. The AMA has no objection to this concept in principle. However, preamble language encourages states to consider adoption of new aquatic and wildlife ("A&W") use sub-categories if "some less sensitive aquatic organisms are able to survive at the site under current or attainable future conditions." See 78 Fed. Reg. 54523. The AMA is concerned that this approach could create pressure to generate endless additional sub-categories: so long as any species could survive, it appears that EPA will insist on an aquatic use designation. Given that it may be possible to find some species that can survive in almost any water quality condition, this preamble language appears to suggest that it will never be appropriate to eliminate the aquatic and wildlife use altogether, even if one of the factors listed in 40 C.F.R. § 131.10(g) is present. In some cases (albeit relatively few), removal of all aquatic and wildlife use in fact may be justified for a particular stream segment. The AMA believes that EPA should clarify that the "highest attainable use" language, if adopted, does not prevent removal of a use entirely, so long as the appropriate showing under 40 C.F.R. § 131.10(g) is made.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 5.e 

# Comment ID 0217-A2.001.008
Author Name: Hale Michelle Organization: Alaska Department of Environmental Conservation EPA should clarify in any final rule its expectations for states in terms of what would be required to adopt an attainable use. These expectations should address commonly encountered situations such as adoption of a mid-range aquatic life use or other designation that is degraded from a "101(a)(2)" condition, but is not a totally absent use. The preamble indicates that states will have "broad discretion to determine the level of specificity to use in identifying and defining designated uses." However, in practice state-defined use subcategories and the waters assigned to these subcategories are likely to be challenged by both EPA and the public based on past experience such as when Washington redefined its designated uses in 2003 to include tiered aquatic life uses and EPA subsequently (2006) disapproved the aquatic life subcategory use designations for many streams.

08/04/2015 05:01 PM EDT 2-3345.f.i Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s):
5.f.i: Section C 

# Comment ID 0217-A2.001.010
Author Name: Hale Michelle Organization: Alaska Department of Environmental Conservation
a. Tiered aquatic life uses The paucity of water quality data and aquatic life information in Alaska makes it infeasible to assign tiered aquatic life uses. Alaska encompasses a variety of climatic, hydrogeological and biological regimes, such that the potential for subcategories of aquatic life uses could be significant. Significant data collection on aquatic species and waterbody characteristics would be needed even for developing a location specific HAU and criteria. Should states voluntarily decide to use subcategories of aquatic life uses, those subcategories should not be assumed to have a hierarchical relationship such that one subcategory is inherently "higher" than another. For example, wetlands are frequently ecologically valuable with high biodiversity, but do not necessarily meet all water quality criteria. Rather than creating a system of higher and lower uses, a UAA or use designation should evaluate the most appropriate and attainable aquatic life use consistent with the local ecosystem. b. Harvesting for consumption use CWA § 304(a) criteria include human health criteria for consumption of water and aquatic organisms (or aquatic organisms only in marine waters). EPA should clarify when uses associated with human health criteria are considered 101(a) uses and how use attainability analysis and any subcategories of this 101(a) use voluntarily adopted by the states should be evaluated. ADEC is evaluating state-specific factors, such as Alaskan fish consumption rates, that may be considered in revising human health criteria. The concept of the "highest attainable" use may not work for 101(a) uses such as uses for fish and shellfish for consumption and their associated human health criteria. Potential subcategories for human health uses, if voluntarily adopted by a state, should be appropriate to the affected populations and should not be intended to imply that criteria protecting the highest attainable consumption rates provide the most appropriate designated use. It is important to keep in mind that consumption rates for some subpopulations can differ by as much as two orders of magnitude and subpopulations may be geographically separated.

c. Future uses The preamble indicated that states should consider what uses may be attainable in the future. ADEC is concerned that

08/04/2015 05:01 PM EDT 2-335Chapter 2 - Comment Documents Designated Uses this may lead to a disapproval of designated use changes based on speculation rather than concrete evidence. Alaska requests clarification or striking said language from the preamble. d. Review of HAU during triennial reviews ADEC is opposed to a mandatory review of HAUs during triennial reviews. In general, limited resources and workload necessitate that ADEC needs to be able to make (and abide) by decisions made based on "reasonableness" of reclassified uses at the time of initial adoption in regulation. It is not feasible to revisit past decisions at each Triennial Review unless a new UAA is submitted for consideration.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section B 5.f.i: Section C 5.f.i: Section F

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# Comment ID 0222-A1.001.011
Author Name: Modeer David Organization: Western Urban Water Coalition 2. The proposed rule at section 131.3(m) defines HAU, and the Preamble indicates that "with this definition, the EPA recognizes and affirms the primary role accorded to the states and tribes under the CWA" in designating and assigning uses. However, this "primary role" appears, in fact, to be undermined by EPA mandates. The Proposed Rule requires a UAA every time an HAU needs to be identified, and although EPA indicates in the Preamble that "states and tribes are not required to develop new use categories or subcategories to meet the HAU requirement," states and tribes will be in a Catch-22 situation if they do not develop such categories. In other words, they either retain the general categories they now have and face the prospect of numerous "non-attaining" water bodies, or face the prospect of numerous costly UAAs in order to establish and defend a gradation of subcategories. Such a result will be a disincentive to the development of refined designated uses. One option would be to allow states and tribes to establish subcategories and treat their initial application as a designated use "for a water body for the first time," which EPA concedes does not require a UAA. At the very least, the second sentence of section 131.10(g) should be modified to allow states flexibility in defining the HAU: "...If a state adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the use that it determines, based upon its evaluation of the facts of record, is the highest attainable."
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section B 5.f.i: Section C 

# Comment ID 0224-A1.001.007
Author Name: Ternieden Claudio Organization: Water Environment Federation WEF Comments: EPA's proposal stems from the concern that a UAA would completely eliminate the use even if, at the existing conditions, the use is or could at least be partially attained. The question is, "would the concept of HAU reduce the regulatory burden associated with lowering uses?" EPA goes on to state that the state or tribe would be required to designate the HAU as part of the UAA and reminds us of the broad discretion that they have. The explicit authorization to states to develop and use new categories, sub
categories and location-specific uses has the potential to allow for much needed flexibility that is particularly important

08/04/2015 05:01 PM EDT 2-337Chapter 2 - Comment Documents Designated Uses for urban waters and in regulatory approaches to nutrient criteria development and interpretation. Section 131.6(a) requires that each state's or tribe's WQS submittal include FAL, wildlife and recreation [101(a)(2)] plus public water supply, industry, agriculture and navigation [303(c)(2)(A)] DUs. Thus, under the proposal, a State/Tribe must select one or more of these or other promulgated DUs as the HAU for a water undergoing a UAA. EPA's opinion is, that by identifying and protecting an HAU when conducting a UAA, the goals of CWA 101(a)(2) are furthered. WEF believes that it is not absolutely clear that the CWA requires HAU protection, but it isn't inconsistent with the goals of the Act. The proposed revision would not require states and tribes to develop new use categories or subcategories. WEF believes that, if implemented appropriately, this approach could be used to define realistic and attainable uses for urban waters. EPA regions such as Region 4 have considered the idea of "restoration potential" for impaired waters. The analysis described in the proposal for HAU determination as:

• identifying the current condition for a water body;

•determining the expected condition for a water body;

•evaluating the effectiveness of best management practices (BMPs) and associated water quality improvements;

•examining the efficacy of treatment technology from engineering studies; and

• using water quality models, loading calculations, and other predictive tools is very similar to the elements that determine a water body's restoration potential as an alternative to traditional TMDLs in Region 4. WEF believes that this approach may be a reasonable way to address nutrient impaired waters that takes into consideration both point and nonpoint source contributions. EPA is also recommending that states and tribes consider the HAU during a triennial review in order to use any new information that indicates that a different level of HAU is appropriate. This would not obligate states to review HAUs during the triennial review, but if they choose to do so, that would be the most appropriate time.
Response For response to this comment, see the following response essay(s):
5.f.i: Section A 

# Comment ID 0230-A1.001.007

08/04/2015 05:01 PM EDT 5.f.i

2-338Chapter 2 - Comment Documents Designated Uses
Author Name: Ettinger Albert Organization: One of the counsel for the Environmental Law and Policy Center et al. Designated Uses Highest Attainable Use (78 FR 54522 4) EPA's proposed clarification makes more explicit what should already be obvious. Under the proposal, if a state decides after a Use Attainability Analysis ("UAA") is done under 40 C.F.R. §CFR 131.10(g) that a use is not attainable, it must adopt the "highest attainable use." So for example, if a state were to decide that a given body of water had naturally occurring levels of a pollutant that made it impossible to meet criteria needed to protect pollution sensitive fish, but that it could protect pollution tolerant fish, the state must adopt a use designation for the water body of "pollution tolerant aquatic life" and establish criteria to protect that aquatic life. While we doubt the need for this clarification, we support the proposed changes. However, the wording must be clarified. The last sentence of the proposal provides that states are not obligated to create new use categories or subcategories. The language must be altered to require that a state need not create new use categories or subcategories if it can protect the highest attainable use through a sitespecific designation or some other label available to it under its designation scheme, but that the state must create new categories or subcategories if its designation scheme does not allow sitespecific designations. Given Iowa League of Cities v. EPA , 711 F.3d 844 (8th 2013), it is unclear that EPA will be able to straighten out with guidance what it does not spell out clearly in the regulations. Thus, the last sentence of the proposed rules should make clear that states may need to create new categories or subcategories or otherwise change their use nomenclature if it is necessary to protect the highest attainable use. We ask that the last sentence of the proposed rule be modified to state: To meet this requirement, States may at their discretion, utilize their current use categories or subcategories if they are capable of adequately describing the highest attainable use, develop new use categories or subcategories, or adopt another use which may include a locationspecific use.

Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section A 5.f.i: Section C 

# Comment ID 0231-A2.001.015
Author Name: Sanderson Stuart

08/04/2015 05:01 PM EDT 2-339Chapter 2 - Comment Documents Designated Uses Organization: The Colorado Mining Association Many UAAs currently conducted by States use minimal data to determine if use is generally attained or not, and do not necessarily reflect EPA's change that all "attainable uses" must equal "HAU." The requirement to determine the HAU could potentially require a significant amount of additional data, such as evaluation of non-water quality standards parameters (e.g., basin geomorphic processes, landscape assessments, and hydrologic modeling). The HAU envisioned by EPA seems to imply there is always some attainable use, even if certain parameters are not in attainment. With regard to the proposed rule's preamble language devoted to designated uses, the States and Tribes are asked to consider during HAU review what is attainable in the future after achievable gains in water quality. It is stated this prospective analysis may include identifying current and expected conditions, evaluating the effectiveness of best management practices ("BMPs") and examining the efficacy of treatment and technology from engineering use studies using models, loading calculations and other tools. CMA notes this places a nearly impossible burden on States/Tribes and regulated stakeholders, particularly when "future" and "achievable" are not defined in the rule. This language also seems to greatly expand EPA's CWA authority to regulate nonpoint source ("NPS") pollution through evaluation and use of BMPs.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 5.f.i: Section F 

# Comment ID 0234-A2.001.016
Author Name: Andes Fredric Organization: Federal Water Quality Coalition Further, we recommend changing the language of regulatory language in § 131.10(g) as follows: "If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the use that it determines is the highest attainable." By making "highest attainable use" a State determination a judicial challenge to the State's decision would apply an arbitrary and capricious standard of review, rather than a de novo standard that would allow a court to replace the State's judgment with its own.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section B

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# Comment ID 0236-A2.001.008
Author Name: Weigel Brian Organization: Wisconsin Department of Natural Resources p. 54524. The EPA invites comments on other approaches or examples that states/tribes could use when articulating the HAU, or examples of scenarios where the three scenarios may not be appropriate.

•Scenario 1 and 2 are straightforward and clear.

•Scenario 3, adoption of a location-specific use for an individual parameter is a new concept for WDNR. This concept could be useful in cases where the use is modified or limited based on a single parameter, and all other water quality criteria should apply. EPA's document provides a paragraph (p. 54524) describing how location/parameter-specific UAAs should differ from site-specific criteria (SSC); however, it is still somewhat unclear how these two approaches differ, and additional guidance/examples would be very helpful. Wisconsin is currently dealing with creating guidance on both SSCs and UAAs, and the difference between the two in cases where the issue is due to a single pollutant has been a continuing point of confusion.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 

# Comment ID 0240-A2.001.005
Author Name: Turner Jr. James Organization: Murray Energy Corporation 2. Designated Uses Section 131.10 Designation of uses EPA is proposing to amend this section such that when new or revised water quality standards are adopted based on a use-attainability analysis (UAA), they must achieve the highest attainable use (HAU) and include criteria to protect that use. HAU is defined (in section 13.3(m)) as "the aquatic life, wildlife, and/or recreation [use] that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in 131.3(g)." Additionally, EPA is proposing to amend section 131.10(g) to mandate that when a UAA is required by 131.10(j), the factors listed in 131.10(g) must be used.

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a. The revisions in this section and the use of HAU throughout the rule will impose an expensive, significant, and timeconsuming burden on the states, tribes, and regulated stakeholders. The language in this section is unnecessarily broad and vague. For example, the changes to 131.10(g) state: "States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use." Will the states actually be allowed to develop their own categories or subcategories on their own, or will this require discussion with and formal approval by the EPA? How specific do the categories need to be? If the process is truly at the States' discretion, it is not appropriate to incorporate this entire section into the rule. States shou ld have the authority to determine and assign appropriate uses and accompanying water quality standards and not the EPA. States have a better understanding of site-specific factors that limit uses from being attained including, but not limited to, substantial and widespread social and economic impacts.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section B 5.f.i: Section E 5.f.i: Section F 12.a 

# Comment ID 0240-A2.001.008
Author Name: Turner Jr. James Organization: Murray Energy Corporation The requirement to determine the HAU would require a significant amount of additional data, including but not limited to an evaluation of non-water quality standards (WQS) parameters, such as basin geomorphic processes, landscape assessments, and hydrologic modeling.

e. Additionally, it is not clear whether 131.10(g)(3) "human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place" would ever prevent a HAU from being imposed due to the cost or consequences to an existing point source.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 5.f.i: Section D

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# Comment ID 0240-A2.001.010
Author Name: Turner Jr. James Organization: Murray Energy Corporation g. The preamble states that when conducting the HAU review, states and tribes "should consider not only what is currently attained, but what is attainable in the future after achievable gains in water quality." Predicting future conditions, particularly when 'future' and 'achievable' are not defined in the rule, places an impossible burden on the states and tribes and their regulated stakeholders. The preamble then states that this prospective analysis may include identifying current and expected conditions, evaluating the effectiveness of best management practices (BMPs), and examining the efficacy of treatment and technology from engineering studies using models, loading calculations and other tools. Although this section of the proposed rule uses the terms "should" and "may," our experience is that notwithstanding the permissive phraseology, states, tribes, and stakeholders are inevitably required by EPA to undertake such "considerations," "analyses," "models," etc.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 

# Comment ID 0240-A2.001.012
Author Name: Turner Jr. James Organization: Murray Energy Corporation i. The preamble suggests using categories that reflect the "naturally expected aquatic life use for intermittent streams that could be applied to multiple streams in the state." This will be problematic in many instances, particularly when evaluating ephemeral and intermittent headwater habitat streams, where naturally expected populations aren't easily defined, and vary quite widely among seemingly comparable sites. j. The concept of 'highest attainable use' as described in the preamble to address individual uses and parameters, seems to override the classification of water bodies on the 303(d) list that are "impaired." The HAU envisioned by EPA seems to imply that there is always some attainable use, even if certain parameters are not in attainment. This assumption ignores basic ecological concepts, such as "limiting factors" and "bottleneck theory", where there are situations in which aquatic populations are constrained by a factor that is not in attainment regardless of the other water quality parameters. The use of site-specific criteria developed as a result of a UAA that is currently used by states such as Colorado is protective of the HAU concept, and is a more practical alternative to the newly minted HAU. k. The public comments made during the August 24 and 26, 2010 public listening sessions reflect that many (or most) of the commenters were concerned about the identification and implementation of the HAU. The proposed rule does

08/04/2015 05:01 PM EDT 2-343Chapter 2 - Comment Documents Designated Uses little to alleviate those concerns. As the HAU has consistently been a questionable aspect of the proposed rule, its inclusion here seems unnecessary and problematic given existing regulations.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 5.f.i: Section F 

# Comment ID 0244-A2.001.006
Author Name: Loomis Marion Organization: Wyoming Mining Association The requirement to adopt the HAU will also waste State resources since they will likely have to determine if multiple use categories need to be created to account for the different degrees of a designated use. The regulatory language should be modified to require only a single UAA to determine what is not attainable, and allow the State to use the UAA data and best professional judgment to determine the next highest use that is attainable.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section B 5.f.i: Section E 

# Comment ID 0248-A2.001.005
Author Name: Jellerson David Organization: Mosaic Fertilizer LLC Second, the Proposed Rule's provision requiring that states adopt the HAU "whenever a state adopts new or revised water quality standards" could have the unintended consequence of requiring states to adopt drinking water standards
- - or to justify not adopting drinking water standards -- every time that a state revises its water quality standards. Such a federal directive would be inconsistent with, and have potentially draconian consequences for, states that require other administrative procedures before waters are reclassified for potable uses. While the Proposed Rule may be construed to apply only to aquatic, recreational and wildlife uses and not to potable water use, EPA should clarify that the Proposed Rule does not create a requirement that states adopt -- or justify any failure to adopt -- drinking water

08/04/2015 05:01 PM EDT 2-344Chapter 2 - Comment Documents Designated Uses standards when states adopt new or revised water quality standards.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section F 

# Comment ID 0248-A2.001.007
Author Name: Jellerson David Organization: Mosaic Fertilizer LLC Fourth, the scope of the Proposed Rule needs to be clarified. The preamble to the Rule initially suggests that the purpose of the Proposed Rule is to ensure that where some aquatic life uses cannot be supported, a state should use a UAA to determine if some other aquatic life use can be supported rather than removing the aquatic life use altogether. See 78 Fed. Reg. at 54,523. However, the language of the Proposed Rule itself appears to create a sweeping requirement that (a) imposes UAAs and HAUs in any circumstance where either a Section 101 use is being removed or a use is being designated for the first time, see proposed 40 C.F.R. § 131.10, and (b) obligates states to develop an entire new hierarchy of uses in order to accommodate its UAAs. See 78 Fed. Reg. at 54524. The Proposed Rule should be revised to clarify that states are only required to apply a HAU for the purpose of determining whether some sub
category of aquatic or recreational use may be adopted in those circumstances when a State is using a UAA to remove an aquatic or recreational use.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section A 5.f.i: Section C 

# Comment ID 0252-A2.001.013
Author Name: Fry Eric Organization: Peabody Energy On a related note, EPA should explain what its intent is by including the following language - "where uses specified in section 101(a)(2) are unattainable, it is important that states and tribes still strive to attain uses that continue to serve the purposes of the Act and also enhance the quality of the water."

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Response For response to this comment, see the following response essay(s):
5.f.i: Section F 

# Comment ID 0252-A2.001.015
Author Name: Fry Eric Organization: Peabody Energy Many UAAs currently conducted by States use minimal data to determine if use is generally attained or not, and do not necessarily reflect EPA's change that all "attainable uses" must equal "HAU." The requirement to determine the HAU could potentially require a significant amount of additional data, such as evaluation of non-water quality standards parameters (e.g., basin geomorphic processes, landscape assessments, and hydrologic modeling). The HAU envisioned by EPA seems to imply there is always some attainable use, even if certain parameters are not in attainment. Moreover, it does appear that 131.10(g)(3) [FN2] would ever prevent an HAU from being imposed due to the cost or consequences to an existing point source. With regard to the proposed rule's preamble language devoted to designated uses, the States and Tribes are asked to consider during HAU review what is attainable in the future after achievable gains in water quality. It is stated this prospective analysis may [FN3] include identifying current and expected conditions, evaluating the effectiveness of best management practices ("BMPs") and examining the efficacy of treatment and technology from engineering use studies using models, loading calculations and other tools. Peabody notes this places a nearly impossible burden on States/Tribes and regulated stakeholders, particularly when "future" and "achievable" are not defined in the rule. This language also seems to greatly expand EPA's CWA authority to regulate nonpoint source ("NPS") pollution through evaluation and use of BMPs. The preamble also puts forth that States/Tribes may wish to adopt a use category that "reflects the naturally expected aquatic life use for intermittent streams that could be applied to multiple streams in the state." Under many scenarios this would be a problem, but it would especially be a problem where naturally expected populations are not easily defined (e.g., when evaluating ephemeral and intermittent headwater habitat streams). [FN2] "Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause environmental damage to correct than to leave in place[.]" [FN3] Peabody notes the use of "should" and "may" throughout the areas of EPA's proposal detailing this "prospective analysis," which should mean that EPA is not supposed to force States/Tribes and regulated stakeholders to undertake such "considerations," "analyses," "models" or other similar actions.

08/04/2015 05:01 PM EDT 2-346Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 

# Comment ID 0257-A1.001.015
Author Name: Harpole Chad Organization: Kentucky Chamber of Commerce The proposed mandate for states to adopt the HAU and supporting criteria is overly burdensome and unnecessary. As to the burden, establishing water quality criteria to support full uses, such as aquatic life and primary contact recreation, is difficult even with the existence of EPA's recommended criteria. How will states be expected to develop numeric water quality criteria, a scientific undertaking, for a subset of aquatic life or for less than full primary contact recreation use of a receiving water? The requirement to use the "best available data and information" to establish the highest attainable use supporting criteria illustrates this will be a major undertaking and will only serve to dissuade states from attempting to conduct UAAs or to grant variances in situations where they are warranted. This requirement would also likely lead to litigation over whether the highest attainable use was properly selected, as well as whether the criteria for protecting the highest attainable use were properly established as numeric and/or narrative standards. If this proposal is adopted, before removing a use, the state would have to conduct a UAA for the use to be removed and a UAA for the highest attainable use to be determined. The concept of HAU designations is also unnecessary because in the instance where a UAA is based upon a demonstration that attaining a use would result in substantial and widespread economic and social impact, or where a variance is granted on those grounds, states would still impose technology-based limitations since the demonstration to remove or delay attainment of a use cannot be made where cost-effective treatment is available. Similarly, as proposed, a variance would require a specific permittee to meet the numeric effluent limitations that prevent any lowering of current water quality during the variance period.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section A 5.f.i: Section B 5.f.i: Section C 5.f.i: Section E 8.f.iii 

# Comment ID 0262-A2.001.013

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Author Name: Rawlings Laurent Organization: Home Builders Association of Kentucky Regarding the proposed rule's preamble language on designated uses, the States are asked to consider during HAU review what is attainable in the future after achievable gains in water quality. The language states this prospective analysis may include identifying current and expected conditions, evaluating the effectiveness of best management practices (BMP's) and examining the efficacy of treatment and technology from engineering use studies using models, loading calculations and other tools. HBAK notes this places a nearly impossible burden on Kentucky and regulated stakeholders, particularly when "future" and "achievable" are not defined in the rule. This language also appears to greatly expand EPA's CWA authority to regulate nonpoint source (NPS) pollution through evaluation and use of BMP's.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 5.f.i: Section F 

# Comment ID 0264-A2.001.007
Author Name: Chard-McClary Shellie Organization: Association of Clean Water Administrators 2) Level of specificity expected with implementing the highest attainable use concept EPA dedicates a significant amount of the preamble discussion to states' ability to use their own classification system in implementing the concept of ensuring attainable uses are designated. However, as EPA acknowledges, states' use classification systems range from highly specific to more general in nature. [FN5] For states with broad use categories it is unclear what use an analysis of HAU will compel the state to adopt. If a waterbody cannot meet a currently designated use specified in section 101(a)(2) of the Act, but potentially could attain something better than the alternative category, what is the effective requirement? As written, it seems UAAs effectively will need to identify the HAU subcategory that could be supported and, for every pollutant, develop the criteria that would protect that new use. [FN5] Id. at p. 7, col. 1.

Response For response to this comment, see the following response essay(s): 5.f.i

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5.f.i: Section C 5.e 

# Comment ID 0264-A2.001.009
Author Name: Chard-McClary Shellie Organization: Association of Clean Water Administrators At a minimum, EPA should:

•clarify in any final rule the expectations for states in terms of what would be required to adopt an attainable use. These expectations should address commonly encountered situations such as adoption of a mid-range aquatic life use or other designation that is degraded from a "101(a)(2)" use, but where partial support is attainable.

•clarify that the requirement to identify the [highest] attainable use is solely tied to the UAA process and therefore is not an independent requirement outside of the UAA process.

•develop estimated cost burdens for states to implement this requirement to assist states in their allocation of resources and to assist EPA in evaluating the cost- effectiveness of the regulations in achieving CWA 101(a) goals.

Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C 5.f.i: Section E 

# Comment ID 0268-A2.001.008
Author Name: Bell Nina Organization: Northwest Environmental Advocates Adoption of Highest Attainable Use We support EPA's rationale for requiring the adoption of the highest attainable use because aquatic life exists on a continuum, not on or off. It is not just that less sensitive species are able to survive in impaired sites but also that fish species whose populations are impaired are simply less abundant. For example, the fact that salmonids are locally extirpated in some streams in the Pacific Northwest does not mean that other fish and non-fish aquatic species are not still present, requiring protection. However, there is a tendency for regulators to fixate on the commercial and

08/04/2015 05:01 PM EDT 2-349Chapter 2 - Comment Documents Designated Uses recreational species as if they are the only form of aquatic life worth protecting. EPA's proposed rule change correctly precludes that approach when a designated use is being revised. EPA discusses states' discretion to choose their own level of specificity in designating uses. This discretion has led to a great deal of ambiguity. An example can be seen in Oregon's temperature standards which consist of numeric criteria, established to protect recreationally and commercially important salmonids, and various narrative provisions, as well as the uses themselves. In coastal watersheds of Oregon up to 70 percent of the stream network is non-fish bearing. This means that an important narrative provision that protects existing cold water (high quality water for temperature) "where salmon, steelhead or bull trout are present" does not apply to those non-fish bearing streams. See OAR 340-041
- 0028(11)(a). The Oregon rules make clear that the cold water protection criterion does not apply where, inter alia, "[t]there are no threatened or endangered salmonids currently inhabiting the water body" and the cold water is not necessary to achieve compliance with numeric criteria downstream. See OAR 340-041-0028(11)(c). Therefore, in the majority of streams in Oregon's coastal watersheds the protecting cold water provision does not apply. But these streams do support aquatic life that are dependent upon cold water, such as non-salmonid fish and amphibians. These forms of aquatic life are clearly existing uses to the extent they have been present any time since 1975 although Oregon does not have any mechanisms to identify and protect existing uses. They also appear to be designated uses included in the use "Fish & Aquatic Life," see e.g., OAR 340-41-0220 Table 220A, because they are "aquatic life" but they do not receive the same protections as salmonids, as was just shown. And, practically speaking, they have been ignored by the water quality and logging agencies which have provided riparian buffer protection to maintain temperatures (albeit inadequately) to fish-bearing streams and virtually no protection to non-fish bearing streams. In Oregon that means the majority of the stream network in coastal watersheds is subject to massive clear-cuts that likely result in the extirpation of aquatic life contrary to Tier 1 protections. While we are not proposing that EPA should require all states to identify all the aquatic life covered in use designations, we are proposing that EPA should require sufficient clarity about designated uses, in particular those that are not recreationally or commercially important, so that EPA and the public can assess whether numeric and narrative criteria are sufficiently protective and whether water quality standards are being met by sources. With regard to the highest attainable use (HAU), a key aspect to a state's choosing the "attainable" use is its knowing what the existing uses have been, since 1975, facts which may be very much less than clear. EPA's description of choosing the highest attainable use focuses, correctly, on what can be attained, not just what is currently present, and is aspirational, as designated uses should be. But without a clear idea of what the existing use is, a state could very well conclude that it is free to choose a designated use that is below the legal floor. As EPA points out, the choice of a HAU should involve "[i]dentifying the current and expected condition for a waterbody," id. at 54524, yet in failing to mention the role of existing uses and the water quality necessary to support them, EPA implies that a waterbody degraded since 1975 can be evaluated in its present state without regard to its 40-year history. Instead, the "absolute floor" should be determined in advance, before the state engages in what will likely be a balancing act between aspirations and political pressures, between broad use designations that are ambiguous and specificity in identifying existing uses. As it is now, "aquatic life" is a very broad use that includes sensitive fish and amphibians and a variety of smaller non-charismatic species and whose full meaning is honored far more in the breech than in practice. In addition, we strongly urge EPA to include as much detail as possible in the regulations and not leave to guidance or to the whim of states to determine the outcome of these regulations. In contrast, EPA seems to rely on ambiguity. For example, it is not entirely clear why EPA reiterates its position that "states and tribes are not required to develop new use categories or subcategories to meet the HAU requirement." Id. What does this mean in a practical sense? We

08/04/2015 05:01 PM EDT 2-350Chapter 2 - Comment Documents Designated Uses suspect that it pertains to the broad and unclear use designations discussed immediately above with regard to aquatic life. If a state wants to downgrade its designated uses and therefore its applicable criteria, it has already made the decision to have a less sensitive use in its standards. EPA gives three examples of how a state could do this, the first two of which require a state to have or to develop a more refined use structure (i.e., "new use categories or subcategories") and the third of which involves establishing a site-specific new use category or subcategory. In light of these three examples, the only apparent rationale for EPA to continue to insist that states are not required to develop new uses would be states' reliance on current ambiguous use designations. This seems to imply that states can identify – outside of a rulemaking process – which less sensitive uses are contained within a broader use designation and the proceed to choose criteria for those less sensitive uses without having altering the designated uses. But perhaps EPA is instead saying that if states want to be able to downgrade without having to develop new categories they must choose to have a more sophisticated system with more specific categories in the first place. If EPA is suggesting that states can downgrade by choosing new criteria without specifying the new uses, we urge EPA to drop this approach. Instead, EPA should simply be clear: if states seek to downgrade designated uses they must establish the HAU even if that means establishing new use categories. Without this restriction, it is unclear how what EPA is proposing does not undermine its own resolution to require states to adopt HAUs. In the discussion of Approach No. 1 to HAUs, the "next best" attainable use, EPA introduces the idea of a state's having four categories of aquatic use designation, ranging from "exceptional" to "limited." EPA does not mention the fact that this type of categorization, which we would term a form of institutionalized impairment, is not used in every state. Some states, such as Oregon and Washington, use a use-based system rather than locking into their regulatory system the failures of the past. EPA should not assume that all states use the same approach to use designation and should include introductory language that recognizes that fact. In addition, the hypothetical involved in this discussion is a dam that is causing dissolved oxygen problems. The description of this example should clearly state that the dam pre-dates November 28, 1975. The discussion for Approach No. 2, revising the state's structure of designated uses, is ambiguous. It states: "If a state or tribe finds that its only option upon determining that such a general [aquatic life] use category is not attainable is to removed it altogether, a state or tribe may wish to consider revising its current designated use framework to include more refined uses and/or sub-categories[.]" Fed. Reg. at 54524. EPA's use of the phrase "may wish" in this example could be read to suggest that the state might use a different path to ensuring a HAU. But it could also be read to leave it to the state's discretion to not refine its uses and as a result to adopt essentially no aquatic life use because the state's current structure does not allow for it. While the examples of how a state might proceed are helpful, the utility of this example is undermined by EPA's implication that a state might simply disregard the HAU requirement altogether if it determined it was too much effort to choose from one of the three options set out in the notice. EPA should drop its implied encouragement to states, set out in Approach No. 3, to make water quality impairmentsmore or less permanent (e.g., "CSO-impacted use," "minerals limited aquatic life use"). We do not disagree that sitespecific use designation is useful. In fact, we have been instrumental in obtaining so-called "where and when" use designations for salmonid spawning in order that more sensitive life cycle stages and their associated criteria can be applied on a consistent, rather than completely haphazard and discretionary, basis. But identifying designated uses by stating what they are not is not conducive to ensuring that the highest attainable use is clearly identified and protected and it does nothing to put the state on a path towards attainment. We are also concerned that EPA emphasizes the option of institutionalizing impairments without concurrently providing sufficient methods and practices of identifying and protecting existing uses. In our experience states are very quick to conclude that they do not have data and do not have

08/04/2015 05:01 PM EDT 2-351Chapter 2 - Comment Documents Designated Uses to use any anecdotal information about existing uses, thereby dispensing with the requirement to protect existing uses. Without EPA's ensuring that existing uses are identified and protected, the Type No. 3 Approach to ensuring protection of the HAU could result, instead, in a drive to the bottom for many states seeking to be able to justify inadequate pollution controls. Likewise, EPA's choice of the word "should" rather than "must" in describing how a state interacts with new information considered during a triennial review is in error and undermines the intent of the proposed rule. Finally, we are not aware of any states that have engaged in a triennial review that has specifically attended to the provision at 40 C.F.R. § 131.20(a) on which EPA appears to rely nor are we aware of any effort by EPA to make sure that states meet those requirements.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section A 5.f.i: Section C 5.f.i: Section F 

# Comment ID 0273-A1.001.001
Author Name: Dean Ron Organization: NOAA National Marine Fisheries Service We at NOAA Fisheries Protected Resources Headquarters: Interagency Cooperation Division would like to make the following informal comment/suggestion: In the Use Attainability Analysis section, page 54524, middle column in #3 "A state or tribe may determine that a use is unattainable for one particular parameter (e.g., altered pH due to highly mineralized geology, or a combined sewer overflow (CSO)- impacted use) or a suite of parameters in a specific location." In the case of CSOs, it is our opinion that they can be addressed and the impacts stopped and mitigated. For example, San Francisco has spent a long time separating their stormwater and sewer lines to prevent CSOs, resulting in great improvements in San Francisco Bay. This language could benefit by clarifying that such a process is available and in use, or by deleting the CSO example from that discussion. Please feel free to contact me with any questions,
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section F

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# Comment ID 0276-A2.001.006
Author Name: Alves James Organization: Hopping Green & Sams on behalf of Florida Electric Power Coordinating Group, Inc. An example, provided in the preamble to the proposed rule, illustrates the borderline-impossible demonstration that would be necessary should the proposed provision and definition become final: For example, as part of the UAA process, a state or tribe may be able to demonstrate that a use supporting a particular class of aquatic life is not attainable. However, if some less sensitive aquatic organisms are able to survive at the site under current or attainable future conditions, the goals of the CWA are not served by simply removing the aquatic life use designation and applicable criteria without determining whether there is some alternate 101(a)(2) use or subcategory of such a use that is feasible to attain. The UAA process can be used to identify the highest aquatic life use that is attainable (i.e., highest attainable use). Under this proposal, the state or tribe would be required to designate that highest attainable use. However, as noted above, states and tribes have broad discretion to determine the appropriate level of specificity to use in identifying and defining designated uses and nothing in this proposal is intended to narrow that discretion. (Emphasis added.) This language advises the states that a UAA must now be taken to the species level and project what conditions that may support those species - in the future. The preamble mandates an intricate level of specificity in establishing the HAU, stripping the states of virtually all discretion, and then asserts that discretion remains. The UAA process is already so burdensome that it is rarely used, and if a UAA was proposed in support of removing one or more uses, agency approval would be subject to third party legal challenges at both the state and federal levels. In Florida, the Florida Department of Environmental Protection (FDEP) must adopt a formal rule to change its water quality standards whether changing a designated use or a water quality criterion. Under Florida law, FDEP rules may be challenged, resulting in formal evidentiary hearing before an administrative law judge (AU) provided by Florida's Division of Administrative Hearings (DOAH). If the All were to issue a final order approving the rule (which removed one or more uses), that final order could be appealed to the state appeals court. If FDEP ultimately prevailed and its rule changing the designated use (or uses) ultimately survived challenges at the state level, the rule would then have to be forwarded to EPA for review as a change to Florida water quality standards. Should EPA approve the change to Florida standards, EPA's decision could be challenged under the federal Administrative Procedures Act as final agency action in the U.S. District Court. In sum, the proposed amendments mandate an additional layer of process and analysis complicating a process that is already extremely burdensome. The amendments take away the very discretion (of the states) that EPA claims it has no intention of affecting. The proposed amendments are contrary to Director King's 2006 memorandum reinforcing the importance of EPA working with state and tribal partners "to make the UAA process operate more effectively."
Response For response to this comment, see the following response essay(s):

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5.f.i 5.f.i: Section C 5.f.i: Section D 5.f.i: Section E 5.f.i: Section F 12.a 

# Comment ID 0277-A2.001.002
Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation 1) Proposed amendment to Sec. 131.10(g) "to provide that where a use specified in Sec. 101 (a)(2) of the Act or a subcategory of such a use is not attainable, the highest attainable use (HAU) and criteria to protect that use shall be adopted in its place." Comment: MassDOT suggests that EPA provide more detailed technical guidance on how the highest attainable use (HAU) is determined, particularly with respect to small intermittent streams. Intermittent streams are often considered to have insufficient volume of water or stream flow to support such designated uses as swimming, secondary recreation and drinking water but are generally considered to support the aquatic life use designation. As such, aquatic life support often turns out to be the highest designated use for intermittent streams even though this support is also limited by the fact that these streams are dry (and/or frozen) for certain times of the year. At what point or threshold, is the designated use of supporting aquatic life considered "unattainable" similar to the other designated uses due to insufficient flow or volume? If other designated uses such as swimming, secondary recreation and drinking water can be deemed "unattainable" based on physical constraints or inadequate supply of water, shouldn't a similar or expanded set of physical criteria be used for determining aquatic life support especially if the stream is typically dry (and/or frozen) for certain portions of the year? Other physical and biological stressors such as the length of hydro-period, flow conditions, presence and types of aquatic species, and connectivity to downstream waters (among others) should be considered, in addition to meeting water quality standards, in determining whether an intermittent stream can fully support aquatic life as a designated use. Is there a defined length of time during the year where flow (i.e., aquatic habitat) must be considered present in order for the designated use of supporting aquatic life to be considered attainable? In particular, since aquatic life is likely to be its highest designated use? In the spirit of these regulatory revisions, MassDOT suggests that EPA provide greater clarity as to the factors that should be considered in determining whether aquatic life support can be reasonably attained as the highest designated use in intermittent streams.
Response For response to this comment, see the following response essay(s): 5.f.i

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5.f.i: Section C 

# Comment ID 0278-A2.001.006
Author Name: Hornback Chris Organization: National Association of Clean Water Agencies NACWA understands that EPA intended the proposed highest attainable use provisions to clarify the flexibility available to states in establishing designated uses. Unfortunately, many states may not have the more refined uses or sub
categories EPA envisions. In the absence of these refined uses, NACWA is aware that some states are interpreting the proposed clarification as in fact limiting their flexibility to remove an unattainable use and/or as mandating additional controls to make incremental improvements toward a §101(a)(2) use, even though it is not attainable. Any final rule should clearly state that this is not EPA's intent. EPA suggests that these states consider revising their designated use frameworks to include more refined uses, but this is unlikely to happen given the current budget realities for many states. Accordingly, any final rule must also clearly call out and preserve state authority and flexibility to choose how best to articulate its designated uses and determine attainability.
Response For response to this comment, see the following response essay(s): 5.f.i 5.f.i: Section C


# 5.F.II - DU - CRITERIA FOR HAU Comment ID 0133-A2.001.004
Author Name: Phillips Sanford Organization: Louisiana Department of Environmental Quality b. In regard to Highest attainable use versus criterion: States should set criteria to be protective of uses and not necessarily highest attainable use. Highest attainable use approach will be very limiting to states and their ability to run their programs.
Response For response to this comment, see the following response essay(s): 5.f.ii

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# Comment ID 0198-A1.001.005
Author Name: Card Bethany Organization: Massachusetts Department of Environmental Protection Designation of uses EPA's proposed language states, in part, that: "If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use and the criteria to protect that use." Relative to the issue of criteria and a combined sewer overflow (CSO) related use designation (Massachusetts Class SB(CSO) or B(CSO)), which constitute downgrading a primary contact recreational use, MassDEP has not to date adopted associated criteria into its WQS. Instead, MassDEP has referenced in the state WQS the approved, applicable Long Term CSO Control Plans. Neither the SB(CSO) or B(CSO) designation nor the approved Long Term CSO Control Plans include numeric bacteria criteria for the affected CSO receiving waters. It is unclear whether MassDEP's approach would continue to be acceptable to EPA under the new regulatory language, or whether EPA's proposed language would require states to adopt numeric criteria for any future or even for continued CSO related use designations. Accordingly, MassDEP requests EPA to clarify its proposed language on this issue.
Response For response to this comment, see the following response essay(s): 5.f.ii 

# Comment ID 0236-A2.001.007
Author Name: Weigel Brian Organization: Wisconsin Department of Natural Resources

•EPA is stipulating that when adopting the HAU, the state must also adopt criteria to protect that use. WDNR agrees that this is necessary and appropriate, and it is in line with WDNR's proposal to update its designated uses and associated water quality criteria. WDNR also recognizes this is likely to take a significant level of staff time to develop/revise water quality criteria for uses, especially if done for a gradient of categories such as "exceptional, high, modified, and limited", but is looking into adopting this approach and has workplanned time for this effort.
Response For response to this comment, see the following response essay(s): 5.f.ii

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# Comment ID 0264-A2.001.008
Author Name: Chard-McClary Shellie Organization: Association of Clean Water Administrators ACWA is concerned if the resulting requirements for states in implementing these provisions have the effect of requiring states to develop many new use categories as well as associated water quality criteria. The proposed text is unclear regarding how this concept should be implemented. As EPA is aware, development of water quality criteria is an extraordinarily resource-intensive effort, and for most states, the implicit requirement to develop "special" water quality criteria for each use change will effectively prevent states from conducting UAAs in all but the direst of circumstances.
Response For response to this comment, see the following response essay(s): 5.f.ii 5.e 

# 5.G - DU - CLARIFY 131.10 G, J, K Comment ID 0128-A1.001.004
Author Name: Boon Richard Organization: California Stormwater Quality Association CASQA also supports the modifications to 131.10 (j) that clarify when a UAA is necessary. CASQA appreciates the clarification that UAAs are not necessary for beneficial uses that are not specified in section 101(a)(2) of the Clean Water Act (e.g., uses not related to aquatic life or recreation) as this has been a challenge to beneficial use modifications in California. Finally, CASQA supports the modifications to 131.10(g) that clarify the ability of States to designate subcategories of beneficial uses, create new subcategories, and define location-specific uses. We believe that these clarifications will allow for beneficial uses that more clearly reflect the actual uses of the water body and the associated water quality necessary to protect those uses to be defined without raising concerns that existing uses are not being protected. Recommendation: Modify the definition of UAAs in 40 C.F.R §131.3(g) to provide flexibility in the level of effort and analysis required for the assessment to justify the UAA, possibly by removing the requirement for a formal structured scientific assessment to be conducted for all UAAs. Maintain the changes that clarify when a UAA is necessary and support use subcategorizations.
Response

08/04/2015 05:01 PM EDT 2-357Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0134-A1.001.007
Author Name: Shea III Quinlan Organization: Edison Electric Institute Use attainability analysis (UAA) - EPA is proposing to amend 40 C.F.R. § 131.10(j) to specify that a State must perform a UAA only when designating a use for the first time that does not include a CWA § 101(a)(2) use or is removing an existing CWA § 101(a)(2) use. Section 101(a)(2) sets a general interim policy goal under the CWA of protecting fish, wildlife, and recreation "wherever attainable." Accordingly, such uses should be adopted for particular water bodies only after EPA or state water quality agencies have demonstrated that the uses can be attained in practice, through a UAA.
Response For response to this comment, see the following response essay(s): 5.g 5.j 

# Comment ID 0145-A2.001.007
Author Name: Shea III Quinlan Organization: Edison Electric Institute Use attainability analysis (UAA) - EPA is proposing to amend 40 C.F.R. § 131.10(j) to specify that a State must perform a UAA only when designating a use for the first time that does not include a CWA § 101(a)(2) use or is removing an existing CWA § 101(a)(2) use. Section 101(a)(2) sets a general interim policy goal under the CWA of protecting fish, wildlife, and recreation "wherever attainable." Accordingly, such uses should be adopted for particular water bodies only after EPA or state water quality agencies have demonstrated that the uses can be attained in practice, through a UAA.
Response For response to this comment, see the following response essay(s): 5.g 5.j 

# Comment ID 0147-A2.001.003

08/04/2015 05:01 PM EDT 2-358Chapter 2 - Comment Documents Designated Uses
Author Name: Gaskin David Organization: Nevada Division of Environmental Protection [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] § 131.10(g) Pursuant to § 131.10(j), States may designate or remove a use or a subcategory of a use as long as the action does not remove protection for an existing use, and the State can demonstrate that attaining the use is not feasible because of one of the six factors in this paragraph. If a State adopts new or revised WQS based on a use attainability analysis, the State shall [begin new text] ensure those standards include and/or protect all [end new text] [begin strikeout] also adopt the highest [end strikeout] attainable use [begin new text] s [end new text] and the criteria to protect those [begin new text] uses [end new text]. To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0150-A1.001.006
Author Name: Heisig-Mitchell Jamie Organization: Hampton Roads Sanitation District HRSD also supports clarifications as to when a Use Attainability Analysis (UAA) is and is not required. Though the Preamble 78 Fed. Reg. at 54524 indicates that EPA intends for the state to have flexibility in how it articulates the HAU in water quality standards regulations, the proposed language in section 131.10(g) could be interpreted to limit state flexibility to the provided examples ("...utilize their current use categories or subcategories, develop new use categories or sub-categories, or adopt another use which may include a location-specific use"). To avoid this misinterpretation, HRSD recommends that the regulation in section 131.10(g) specifically refer to these approaches as "non-exclusive" in order to allow the states to handle possible designated use changes as effectively as possible. Given the importance of providing an appropriate level of protection for a designated use, it is critical that the designated use be accurately assigned. UAAs are an underutilized tool in identifying the "correct" use for a waterbody and its corresponding water quality standard. EPA must use this opportunity to emphasize the utility of UAAs in the water quality standards program and clarify that it is a required element whenever the attainability of a use is questioned. Some states currently operate Total Maximum Daily Load (TMDL) programs with the belief that a UAA cannot be initiated until after the TMDL has been developed and implemented. In situations where the appropriateness of the designated use comes into question before the TMDL is even developed, this practice clearly diverts limited

08/04/2015 05:01 PM EDT 2-359Chapter 2 - Comment Documents Designated Uses resources away from more effective watershed protection efforts.
Response For response to this comment, see the following response essay(s): 5.g 5.j 

# Comment ID 0156-A1.001.005
Author Name: Jackie Kepke Adam Link Organization: California Association of Sanitation Agencies and Tri-TAC However, we remain concerned about the lack of detail surrounding the requirements of a Use Attainability Analysis (UAA). This uncertainty can make the UAA process difficult for States to undertake, and thus make States reluctant to change designated uses even when there is a wealth of evidence it would be appropriate to do so. Achieving greater clarity in the process and requirements surrounding regulatory tools such as UAAs was one of the focus areas of a recent effort of the California State Water Resources Control Board (State Water Board). While we intend to work withthe State and Region IX to develop a common understanding of these parameters under existing rules, CASA and TriTAC request that USEPA directly clarify the process and requirements for an acceptable UAA as part of these WQS clarifications.
Response For response to this comment, see the following response essay(s): 5.g 5.j 

# Comment ID 0156-A1.001.007
Author Name: Jackie Kepke Adam Link Organization: California Association of Sanitation Agencies and Tri-TAC Finally, CASA and Tri-TAC appreciate that the proposal is responsive to an issue of significant concern to POTWs: properly delineating circumstances where a UAA is not required. Specifically, CASA and Tri-TAC had previously requested improvements to the process for redefining or subcategorizing beneficial uses, noting that the adoption of subcategories of a particular use should not require a full UAA and should not require a demonstration of one of the factors required for downgrading a use, but rather should be allowed as a clarification to reflect the actual uses of the waterbody. Consistent with this request, the rule has been revised to state that:

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"...a UAA is not required when a state or authorized tribe designates or has designated uses specified in section 101(a)(2) of the act for a water body for the first time, removes a designated use that is not specified in section 102(a)(2) of the Act, or adopts a subcategory that requires criteria as stringent as the previously applicable criteria." (FR 54525, revised section 131.10(k).) This approach is consistent with previous and existing USEPA policy and is critically important given that numerous states have inappropriately designated all waters categorically and without data or analysis as fishable/swimmable or as municipal and domestic drinking water supply sources, and then require a UAA to later remove these broad "blanket" designations. This has, at least in EPA Region IX, been subject to differing interpretations and often involves the expenditure of significant financial resources to attempt to remove designated uses that are not mandated under federal law (i.e. those not in section 102(a)(2) of the CWA). This clarification should help address the unnecessary perceived mandate of performing a UAA when not required under the regulations, saving significant time and public resources.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0161-A2.001.003
Author Name: Ehm William Organization: Iowa Department of Natural Resources 2. Section §131.10(k)(2) states that a state is not required to conduct a use attainability analysis whenever "The State wishes to remove a designated use that is not specified in section 101(a)(2) of the Act, or designate a sub-category of a use specified in section 101(a)(2) of the Act which requires criteria at least as stringent as previously applicable."

•There needs to be more specificity on this rule, as it can be read in any number of ways, resulting in different questions or concerns depending on how it is clarified. For example, regarding the first half of the statement about removing a use not specified in 101(a)(2), does this mean removing uses such as drinking water uses, livestock feeding, etc without a UAA? If so, the rule should specifically address the ability to remove drinking water uses.

•This leads to the question, "Is it possible to remove a designated use even though it has never reached the existing use standard or is no longer used for that use?" An example of this might be our state's Class C, Drinking Water Classification applied at a drinking water intake. Wells move occasionally, but does that drinking water designation still have to be maintained, even though the use is no longer there? While it may have more stringent criteria associated with it, the A1, B(WW-1) criteria would provide the highest level of 101(a)(2) protection.
Response

08/04/2015 05:01 PM EDT 2-361Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.g 5.d 5.h 

# Comment ID 0165-A2.001.006
Author Name: Gunderson Steven Organization: Colorado Department of Public Health and Environment 5. Designated Uses - When Use Attainability Analysis ("UAA") is Not Required Colorado supports EPA's proposal to clarify that UAA's are only required when removing or downgrading a 101(a)(2) use.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0167-A1.001.008
Author Name: Anderson Paul Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District Finally, to further clarify the discussion of when a UAA is not required (p. 54525, first column) the District suggests that EPA consider specifying in Section 131.10(k)(2) that a UAA is not required to remove a use not specified in CWA §303(c)(2)(A) such that it would read: The State wishes to remove a designated use that is not specified in sections 101(a)(2) or 303(c)(2)(A) of the Act, ...
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0168-A1.001.011
Author Name: Walker Roger

08/04/2015 05:01 PM EDT 2-362Chapter 2 - Comment Documents Designated Uses Organization: Regulatory Environmental Group for Missouri Several water quality standards regulations currently codified at 40 CFR §131.10 are unlawful and are an incorrect interpretation of the Clean Water Act and therefore should be revised or deleted. Among other sections affected, §131.10(j)(1) establishes a national policy that at a minimum, all waters of the United States must be fishable and swimmable unless a structured scientific assessment, approved by the EPA, proves otherwise. The Clean Water Act does not include such a minimum use classification. There are several arguments that support this position, including the following presented below. The relevant language of the Clean Water Act section 101(a) provides: (a)The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter - (CWA section 101(a) emphasis added) (a)(2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983 (CWA section 101(a)(2) emphasis added) First, the plain language of the above-cited law establishes that EPA pursue the "goal" of section 101(a)(2) while being consistent with all the provisions of this chapter of the Clean Water Act. EPA must, therefore, pursue section 101(a)(2)'s goal by complying with the express directive of section 303(c)(2)(A) which requires States to make use designations. Accordingly, section 101(a) must be read together in harmony with section 303(c)(2)(A) so that neither section is rendered a nullity and so that both sections are given full effect. Consequently, it is not permissible for the EPA to ignore section 303(c)(2)(A) and make a minimum use designation for a water body, as done in §131.10(j)(1), since that authority is only afforded to the States. Second, Congress clearly indicated that the national goal of fishable and swimmable be achieved "wherever attainable." Congress therefore acknowledged that the goal might not be attainable in every water body of the State. Congress did not create a minimum use presumption of attainability and place the burden on State's to prove otherwise. Third, EPA's overreaching proposal reflects the agency's intent to entirely rewrite the WQS through veiled "clarifications" that impact the entire regulation. In doing so, Part 131, as a whole, is subject to comment. Nothing in the plain and unambiguous language of the Clean Water Act entitles the agency to create a minimum use presumption of attainability. Accordingly, anything to the contrary schemed by the agency, whether now proposed or currently existing, cannot withstand scrutiny and is not supported by the plain language of the Congress. As part of this rulemaking EPA should therefore delete §131.10(j)(1) from Part 131 water quality standards.
Response For response to this comment, see the following response essay(s): 5.g

08/04/2015 05:01 PM EDT 5.i

2-363Chapter 2 - Comment Documents Designated Uses
5.k 

# Comment ID 0169-A1.001.008
Author Name: Letient Henri Organization: Teck Alaska Incorporated Most notably, Teck supports EPA's proposed clarification on when a use attainability analysis is required, as current regulations are indeed unclear on that point. EPA's proposed language at 40 CFR 131.10(g) allows states to use their discretion to "utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use." Teck supports the addition of this language that provides states with flexibility in defining more specific CWA Section 101(a)(2) designated uses when scientific data support such alternative use designations.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0169-A1.001.011
Author Name: Letient Henri Organization: Teck Alaska Incorporated

•When a Use Attainability Analysis is Required oTeck agrees with EPA's proposed changes clarifying (1) that the six factors at 40 CFR 131.10(g) are only required to be considered when 131.10(j) requires a use attainability analysis (UAA); and (2) when states and authorized tribes are or are not required by regulation to conduct a UAA based upon a proposed addition or removal of a use specified in CWA Section 101 (a)(2). Thank you for this opportunity to comment on these proposals.
Response For response to this comment, see the following response essay(s): 5.g

08/04/2015 05:01 PM EDT 2-364Chapter 2 - Comment Documents Designated Uses 

# Comment ID 0172-A2.001.003
Author Name: Foster Tad Organization: Tad S. Foster Attorney at Law on behalf of three small municipal dischargers [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] DESIGNATION OF USES: At § 131.10 (g), amend the proposal as follows: ...demonstrate that attaining the use is not feasible because of one of six [begin new text] INDEPENDENT [end new text] factors in this paragraph. [begin new text] EACH FACTOR IS INDEPENDENT AND THE SIXTH IS NOT A PRECONDITION NOR CONDITION SUBSEQUENT TO ANY OF THE OTHERS. [end new text] Experience with current 131.10(g)'s six factors has had regulators requiring both the sixth factor ("widespread, substantial economic impacts") and one of the other five factors so as to justify downgrading or variances etc. The economic factor can preclude this approach.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0175-A1.001.005
Author Name: Canton Steven Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. b. This section also includes requirements for conducting UAAs in cases where they were not previously required. This will place a huge financial burden on the states, tribes, and regulated community depending on the (as yet undefined) nature and quantity of data that EPA would require for use-determination decisions/approval. The requirement for doing UAAs when assigning uses to water bodies can be very time-consuming and expensive.

c. The statement in the preamble that a state need not perform a UAA when first designating (or upgrading) uses if the uses include those specified in 101(a)(2) is not appropriate. The same degree of analysis should be conducted to demonstrate that such a designation or upgrade is actually attainable.
Response

08/04/2015 05:01 PM EDT 2-365Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.g 12.a 

# Comment ID 0176-A2.001.005
Author Name: Lazarus Jay Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM) DPNM proposes the following additions to EPA's proposed language changes to §131.10(g): "To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use. EPA shall not limit the State's ability to adopt its current established use categories and states shall not be required to adopt the HAU."
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0177-A2.001.003
Author Name: Klotz Mark Organization: New York State Department of Environmental Conservation (2)Designated Uses EPA proposes to amend 131.10(g) to clarify when a Use Attainability Analysis (UAA) is, and is not needed, and to provide that where a use cannot be attained, the Highest Attainable Use (HAU) and criteria to protect that use shall be adopted in its place. NYSDEC supports this change because it both clarifies and strengthens our ability to protect water quality where a use cannot be attained.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0178-A2.001.002

08/04/2015 05:01 PM EDT 2-366Chapter 2 - Comment Documents Designated Uses
Author Name: Burnell Barry Organization: Idaho Department of Environmental Quality I. Designation of Uses The clarifications on when a use attainability analysis (UAA) must be conducted and when a UAA is not needed are helpful.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0180-A2.001.013
Author Name: Hobson Chris Organization: Southern Company B. UAAs Southern Company believes that this rulemaking provides EPA with an invaluable opportunity to clarify not just the different outcomes of the UAA process (i.e., highest attainable uses) but also the different predicates for undertaking a UAA in the first instance. Despite increased attention on the value and importance of UAAs, they remain underutilized. As the National Research Council first recognized in its landmark report on EPA's TMDL program: Water quality standards are the benchmark for establishing whether a waterbody is impaired; if the standards are flawed (as many are), all subsequent steps in the TMDL process will be affected. Although there is a need to make designated use and criteria decisions on a waterbody and watershed-specific basis, most states have adopted highly general use designations commensurate with the federal statutory definitions. However, an appropriate water quality standard must be defined before a TMDL is developed. Within the framework of the Clean Water Act (CWA), there is an opportunity for such analysis, termed use attainability analysis (UAA). National Academy of Sciences, National Research Council, Assessing the TMDL Approach to Water Quality Management (2001). We recommend that EPA clarify in 40 CFR §131.10 that a state may conduct a UAA whenever the attainability of a designated use is called into question. Importantly, this should be allowed at any time, whether before, during or after a TMDL has been established under 40 CFR §131.7(c).
Response

08/04/2015 05:01 PM EDT 2-367Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.g 5.j 

# Comment ID 0181-A2.001.006
Author Name: Sims Shaun Organization: Wyoming Association of Conservation Districts Page 54525 – C. Designated Uses: Revisions To Clarify When a UAA Is and Is Not Required: Specifically, $131.10(k) is revised to articulate that a UAA is not required when a state or authorized tribe designates or had designated uses specified in section 101(a)(2) of the Act for a water body for the first time, removes a designated use that is not specified in section 101(a)(2) of the Act, or adopts a subcategory that requires criteria as stringent as the previously applicable criteria. The current structure of 131.10(j)(2) and 131.10(k) could result in situations where a UAA is not required by 131.10(k) but is required by 131.10(j)(2) thus leading to confusion. The EPA intends to eliminate this confusion by restructuring 131.10(k) as proposed. COMMENT: WACD commends EPA for clarifying sections 131.10(j) and 131.10(k). The proposed language is more specific and clear which will benefit states in determining when a UAA is required and when it is not.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0182-A2.001.006
Author Name: Hahn Martha Organization: The Colorado Wastewater Utility Council [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] We also support the development of "refined" sub-categories of uses through a Use Attainability Analysis, e.g., where full attainment of a § 101(a)(2) use has been determined to be unlikely. As such, states also should be able to establish refined uses when new or revised water quality standards are being considered for the first time. Accordingly, we recommend that § 131.10(j)(2) be revised as follows (proposed deleted language is shown as strikethrough and additional language is shown as underlined): (2)The State wishes to remove a designated use that is specified in section 101(a)(2) of the Act, to remove a sub
08/04/2015 05:01 PM EDT 2-368Chapter 2 - Comment Documents Designated Uses category of such a use, or to designate a sub-category of such a use which requires criteria less stringent than [begin strikeout] previously applicable [end strikeout] [begin new text] would be required under section 101(a)(2) of the Act [end new text].
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0183-A1.001.004
Author Name: Rich Eric Organization: Navajo Nation Environmental Protection Agency Designated Uses This amends 40 CFR Part 131.10 to require that when a tribe or state adopts new or revised water quality standards based on a use attainability analysis (UAA), it must adopt the highest attainable use (HAU). States and tribes must also adopt criteria, as specified in 131.11(a) to protect for that use. NNEPA Water Quality/NPDES Program Comment: The Navajo Nation Surface Water Quality Standards have adopted the designated uses required in the Clean Water Act 101(a)(2) to provide for propagation of fish, shellfish, and wildlife and for recreation in and on the water, and supporting criteria approved by USEPA to support those uses. We have never been required by USEPA to conduct a UAA since we have never proposed changing designated uses. This should not affect the Navajo Nation Surface Water Quality Standards.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0185-A1.001.004
Author Name: Poltak Ronald Organization: New England Interstate Water Pollution Control Commission Also, in the proposed amendment to §131.10(j) a state must conduct a UAA when "the State designates uses for a waterbody for the first time." The NEIWPCC states are seeking clarification on what is meant by the phrase "for a

08/04/2015 05:01 PM EDT 2-369Chapter 2 - Comment Documents Designated Uses waterbody for the first time."
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0185-A1.001.006
Author Name: Poltak Ronald Organization: New England Interstate Water Pollution Control Commission The NEIWPCC states request that no UAA be required when an existing use is refined, that is, replaced by a more specific version of the use by final rule.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0186-A1.001.019
Author Name: Claff Roger Organization: American Petroleum Institute API supports EPA's provision clarifying when a use can be removed or changed without performing a use attainability analysis. Proposed language at 40 CFR 131.10(k) clarifies that a use attainability analysis (UAA) as prescribed in 40 CFR 131.10(g) is not required for removing and/or changing designated uses that are not CWA Section 101(a)(2) uses.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0188-A2.001.003

08/04/2015 05:01 PM EDT 2-370Chapter 2 - Comment Documents Designated Uses
Author Name: Ehm William Organization: Iowa Department of Natural Resources 2. Section §131.10(k)(2) states that a state is not required to conduct a use attainability analysis whenever "The State wishes to remove a designated use that is not specified in section 101(a)(2) of the Act, or designate a sub-category of a use specified in section 101(a)(2) of the Act which requires criteria at least as stringent as previously applicable."

•There needs to be more specificity on this rule, as it can be read in any number of ways, resulting in different questions or concerns depending on how it is clarified. For example, regarding the first half of the statement about removing a use not specified in 101(a)(2), does this mean removing uses such as drinking water uses, livestock feeding, etc without a UAA? If so, the rule should specifically address the ability to remove drinking water uses.

•This leads to the question, "Is it possible to remove a designated use even though it has never reached the existing use standard or is no longer used for that use?" An example of this might be our state's Class C, Drinking Water Classification applied at a drinking water intake. Wells move occasionally, but does that drinking water designation still have to be maintained, even though the use is no longer there? While it may have more stringent criteria associated with it, the A1, B(WW-1) criteria would provide the highest level of 101(a)(2) protection.
Response For response to this comment, see the following response essay(s): 5.g 5.d 5.h 

# Comment ID 0189-A1.001.008
Author Name: Margaret Watkins Nancy Schuldt Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa Environmental Department However, using a UAA to circumvent wastewater discharge requirements is a very serious implementation problem that is not currently addressed by the proposed rule. Therefore, we recommend EPA allow UAAs only in very limited circumstances. Original conditions (defined in the existing regulations) for a state using a UAA to weaken water quality protections should have been known at the time the state was establishing their designating uses, 40 years ago. For example, natural low oxygen conditions should by now have long been identified (e.g. in some wetlands or headwater stream reaches.) Severe hydromodifications of water bodies (channelization, dams) have existed since before the CWA. If a state claims a water body is now not meeting uses and is "unable" to meet uses, that should be a red flag that the state has not been adequately and properly implementing the CWA; it should not be an excuse for the state to now protect lesser water quality.

08/04/2015 05:01 PM EDT 2-371Chapter 2 - Comment Documents Designated Uses Realizing the purposes, intent, and requirements of the CWA and fact that UAAs should have outlived their utility in most cases, we recommend EPA make the UAA requirements more restrictive. EPA regulation provides that a state/authorized tribe may not remove an existing use unless they demonstrate one or more of six specific factors. The third, fifth, and sixth factors are of particular concern; they should no longer be allowed as excuses to sacrifice waters to weaker protections. The third factor allows for the sacrifice due to "human-caused conditions or sources of pollution" that cannot be remedied. A state proposing to write off a water body based on this factor is essentially admitting that it has allowed human-caused factors to degrade a water body since its initial designation shortly after passage of the CWA. This is unacceptable; it provides the wrong incentive to states and polluters. And, it leaves Tribally approved WQS programs without the tools to remedy water quality issues that were not created by the Tribes. Specifically, Tribes do not have Treatment as a Sovereign for CWA 303(d) and therefore must rely on the State to identify impaired waters, and on EPA and the State to ensure an adequate TMDL is developed and implemented. The fifth factor makes no sense; it suggests that "natural" physical conditions unrelated to water quality may preclude attainment of aquatic life uses. It doesn't differentiate between what might actually be natural conditions and what could be human-caused conditions such as poor substrate from erosion (potentially because of inadequate stormwater controls and/or land uses such as clear cut logging), lack of adequate riparian cover (could be attributed to uncontrolled development or agricultural or logging practices) or inadequate flow or depth (in the west this could be due to water policies and development practices). This factor must be eliminated because it will enable further degradation. The sixth factor requires much more detail to avoid exploitation. This factor provides an excuse for a state to avoid applying controls necessary to meet WQS and weakens protections for the water body, if the controls necessary to achieve WQS result in "substantial and widespread economic and social impact." After 40 years of CWA implementation, states should be employing controls necessary to meet WQS, at a minimum for point sources. Without more guidance, the sixth factor becomes a defense of "it costs too much", and the EPA should not continue to allow it. Tightening these loopholes for states will substantially reduce the weakening of WQS and protections through the use of UAAs. UAAs are generally inconsistent with the intent and purpose of the CWA and should be limited.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0189-A1.001.009
Author Name: Margaret Watkins Nancy Schuldt Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa Environmental Department When a UAA is not required The Bands have specific concerns about what protections will be weakened for non-101(a)(2) uses) exemptions proposed in this rule. Many of the beneficial uses most important to the Bands' subsistence and cultural traditions,

08/04/2015 05:01 PM EDT 2-372Chapter 2 - Comment Documents Designated Uses including the protection of wild rice and ceremonial use, do not fall under 101(a)(2). EPA's proposed rule to "clarify" that the UAA requirements do not apply to uses other than CWA 101(a)(2) goals will allow additional degradation and loss of treaty-reserved resources. For example, if the state chooses to weaken protections for a water body that had been designated a wild rice water, it does not have to perform a UAA in order to weaken protections for the existing wild rice water use, because protection of wild rice is not a 101(a)(2) "fishable/swimmable" use. Currently, the rules maintain that a UAA is required for uses listed in 101(a)(2), but they do not excuse a state from doing a UAA for removing other uses. By explicitly exempting the downgrading of uses other than 101(a)(2) from the need for a UAA, EPA is weakening the existing rule. Clearly, this is a threat to sustaining resources important to the Bands if the state decides to weaken protections for a water body either through a UAA, or without even having to conduct one.
Response For response to this comment, see the following response essay(s): 5.g 5.h 

# Comment ID 0190-A1.001.006
Author Name: Wagener Fritz Organization: NA [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 131.10(k)(1): "A State is not required to conduct a use attainability analysis under this regulation whenever designating uses which include those specified in section 101(a)(2) of the Act: (1)The State designates [begin strikeout] or has designated used for a water body for the first time that include the [end strikeout] uses specified in section 101(a)(2) of the Act, or ..." The current version of 131.10(k) states, "A State is not required to conduct a use attainability analysis under this regulation whenever designating uses which include those specified in section 101(a)(2) of the Act." It is not clear why the proposed 131.10(k)(1) provision addresses only situations where a state designates 101(a)(2) uses for the first time. Notwithstanding the provision of 101(a)(2) that establishes a national goal of 101(a)(2) uses "wherever attainable" 303(c)(2)(A) gives states significant flexibility in assigning designated uses for its waters "(w)henever the State revises or adopts a new standard" by considering "their use and value for public water supplies, propagation of fish and wildlife, recreational purposes", even in the absence of a UAA demonstrate that 101(a)(2) uses are immediately attainable.
Response For response to this comment, see the following response essay(s): 5.g

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# Comment ID 0191-A2.001.007
Author Name: Hirst Barbara Organization: New Jersey Department of Environmental Protection [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] § 131.10(g) Pursuant to § 131.10(j), States may designate or remove a use or a subcategory of a use as long as the action does not remove protection for an existing use, and the State can demonstrate that attaining the use is not feasible because of one of the six factors in this paragraph. If a State adopts new or revised WQS based on a use attainability analysis, the State shall [begin new text] ensure those standards include and/or protect all [end new text] [begin strikeout] also adopt the highest [end strikeout] attainable use [begin new text] s [end new text] and the criteria to protect those [begin new text] uses [end new text]. To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0193-A2.001.005
Author Name: Biggs Barbara Organization: Metro Wastewater Reclamation District [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] Use Attainability Analysis – §131.10(j)(2): With increasingly restrictive water quality standards being adopted nationwide, it is inappropriate to assume that § 101(a)(2) uses are always attainable, i.e., even with zero discharges from regulated point sources and implementation of nonpoint best management practices, an underlying water quality standard may not be achievable in a water body or watershed. As such, we recommend that an attainability demonstration be conducted before any § 101(a)(2) uses and associated water quality standards are adopted. In addition, such an analysis would be beneficial before a Total Maximum Daily Load (TMDL) is developed to make certain that a proposed water quality goal is actually attainable, thus ensuring that scarce state resources are spent wisely. We also support the development of "refined" sub-categories of uses through a Use Attainability Analysis, e.g., where full attainment of a § 101(a)(2) use has been determined to be unlikely. As such, states also should be able to establish refined uses when new or revised water quality standards are being considered for the first time. Accordingly, we

08/04/2015 05:01 PM EDT 2-374Chapter 2 - Comment Documents Designated Uses recommend that § 131.10(j)(2) be revised as follows (proposed deleted language is shown as strikethrough and additional language is shown as underlined): (2)The State wishes to remove a designated use that is specified in section 101(a)(2) of the Act, to remove a sub
category of such a use, or to designate a sub-category of such a use which requires criteria less stringent than [begin strikeout] previously applicable [end strikeout] [begin new text] would be required under section 101(a)(2) of the Act. [end new text]
Response For response to this comment, see the following response essay(s): 5.g 5.j 

# Comment ID 0194-A1.001.007
Author Name: Stonestreet Robert Organization: West Virginia Chamber of Commerce The Chamber does not agree that a basis exists for revising the current designated use and use attainability regulations. Like other states, West Virginia adheres to its in-place regulatory scheme when setting water quality standards and designated uses of its water bodies and this regulatory process has worked and continues to work. The Chamber does not agree that the system is not working and needs such clarification and revisions. Therefore the changes to 40 CFR § 131.10 are unnecessary and, if implemented, will place an unnecessary burden, in both costs and the use of limited resources, on the states.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0195-A1.001.009
Author Name: Norton Ken Organization: National Tribal Water Council However, we have observed far more serious problems with the use of UAAs that should also be addressed by EPA during this rulemaking. UAAs should only be allowed in very limited circumstances. The CWA requires that states/authorized tribes designate uses and water quality criteria necessary to protect and attain those uses. States are to strictly regulate point source discharges of pollutants for eventual elimination and, at a minimum, ensure that WQS

08/04/2015 05:01 PM EDT 2-375Chapter 2 - Comment Documents Designated Uses are met. For waters that are cleaner than standards, states/authorized tribes are required to implement antidegradation requirements to ensure that the high quality is maintained. These requirements of the CWA are now over 40 years old. The use of UAAs should at this point be almost nonexistent because the original conditions defined in the existing regulations for a state using a UAA to weaken water quality protections were known long ago, at the time the state was establishing their designating uses. For example, natural low oxygen conditions should by now have long been identified (e.g. in some wetlands or headwater stream reaches.) Severe hydromodifications of water bodies (channelization, dams) have existed since before the CWA. If a state claims a water body is now not meeting uses and is "unable" to meet uses, that should be a red flag that the state has not been adequately and properly implementing the CWA; it should not be an excuse for the state to now protect lesser water quality. At this point in time, UAAs should be virtually obsolete. Realizing the purposes, intent, and requirements of the CWA and fact that UAAs have largely outlived their utility, EPA should be making the UAA requirements more restrictive. EPA regulation provides that a state/authorized tribe may not remove an existing use unless they demonstrate one or more of six specific factors. The third, fifth, and sixth factors are of particular concern; they should no longer be allowed as excuses to sacrifice waters to weaker protections. The third factor allows for the sacrifice due to "human-caused conditions or sources of pollution" that cannot be remedied. A state proposing to write off a water body based on this factor is essentially admitting that it has allowed human-caused factors to degrade a water body since its initial designation shortly after passage of the CWA. This is unacceptable; it provides the wrong incentive to states and polluters. The fifth factor makes no sense; it suggests that "natural" physical conditions unrelated to water quality may preclude attainment of aquatic life uses. It doesn't differentiate between what might actually be natural conditions and what could be human-caused conditions such as poor substrate from erosion (potentially because of inadequate stormwater controls and/or land uses such as clear cut logging), lack of adequate riparian cover (could be attributed to uncontrolled development or agricultural or logging practices) or inadequate flow or depth (in the west this could be due to water policies and development practices). This factor must be eliminated because it will enable further degradation. The sixth factor also has outlived its usefulness, or at least requires much more detail to avoid abuse. This factor provides an excuse for a state to avoid applying controls necessary to meet WQS and to weaken protections for the water body, if the controls necessary to achieve WQS result in "substantial and widespread economic and social impact." After 40 years of CWA implementation, states should be employing controls necessary to meet WQS, at a minimum for point sources. Without more guidance, the sixth factor becomes a defense of "it costs too much", and the EPA should not continue to allow it. Tightening these loopholes for states will substantially reduce the weakening of WQS and protections through the use of UAAs. UAAs are generally inconsistent with the intent and purpose of the CWA and should be limited.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0195-A1.001.010

08/04/2015 05:01 PM EDT 2-376Chapter 2 - Comment Documents Designated Uses
Author Name: Norton Ken Organization: National Tribal Water Council When a UAA is not required This element of EPA's proposed rule is a clear step backward and a weakening of CWA requirements. EPA proposes to "clarify" that the UAA requirements do not apply to uses that do not fall within CWA 101(a)(2) goals, which establishes the national goal that water quality "provides for the protection and propagation of fish, shellfish and wildlife and provides for recreation in and on the water" (fishable/swimmable). That would mean, for example, that a state choosing to weaken protections for a water body that had been designated a drinking water source, does not have to perform a UAA in order to weaken protections for the drinking water use, because drinking water is not a 101(a)(2) "fishable/swimmable" use. Currently, the rules maintain that a UAA is required for uses listed in 101(a) (2), but they do not excuse a state from doing a UAA for removing other uses. By explicitly exempting the downgrading of uses other than 101(a) (2) from the need for a UAA, EPA is weakening the existing rule. The NTWC has specific concerns about what protections will also be weakened for other non-101(a) (2) uses) by this explicit exemption. Many of the beneficial uses that are most important to tribal subsistence and cultural traditions do not fall under 101(a) (2), and for tribes who do not have authorization to protect their waters through a federal WQS program, there is a clear threat to sustaining these resources if a state decides to weaken protections for a water body either through a UAA, or without even having to conduct one.
Response For response to this comment, see the following response essay(s): 5.g 5.h 

# Comment ID 0197-A1.001.006
Author Name: Garrison Naoh Organization: Natural Resources Defense Council [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] The Proposed Changes Regarding Use Attainability Analyses Must Be Revised to Ensure the Highest Attainable Use is Met and Protection for Uses not Enumerated in 33 U.S.C. § 1251(a)(2). NRDC supports EPA's effort to make clear that where a state determines, through a use attainability analysis ("UAA") under 40 C.F.R. § 131.10(g), that a particular use is not attainable, the state must adopt the "highest attainable use." (78 Fed. Reg. at 54,522.) However, the proposed language for this section is unclear and could create a loophole that would allow states to evade responsibility for ensuring the highest attainable use is required or met.

08/04/2015 05:01 PM EDT 2-377Chapter 2 - Comment Documents Designated Uses The Proposed Rule would alter section 131.10(g) to state: If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use and the criteria to protect that use. To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use. (78 Fed. Reg. 54,523.) This language could be interpreted as stating that, in the event that the highest attainable use is not covered by an existing or current category or subcategory, the state may nevertheless use an existing or current category, even if that category is insufficient to properly adopt the highest attainable use. In order to ensure that no gap is created between the highest attainable use that can be met and the protection that will be offered by a state's current categories, the following language should be added to the proposed section 131.10(g), such that it states: shall also adopt the highest attainable use and the criteria to protect that use. To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories [begin new text] where sufficient to describe and protect the highest attainable use [end new text], develop new use categories or subcategories. . . .
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0199-A1.001.006
Author Name: Rogers Gilbert Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network We also have concerns regarding the proposal to clarify when a UAA is not required. In general, removing designated uses should be strongly discouraged and rarely allowed. EPA should ensure that states are not abusing the UAA process in order to remove waters from their 303(d) list because they are unwilling to address ongoing or chronic water quality problems. As proposed, EPA's revisions will specify that a UAA is only required for removing uses listed in CWA § 101(a)(2), which states the goal of "provid[ing] for the protection and propagation of fish, shellfish and wildlife and provides for recreation in and on the water." EPA does not currently limit the UAA analysis to only those uses, and it should not change that position with this rulemaking.
Response For response to this comment, see the following response essay(s): 5.g 5.h

08/04/2015 05:01 PM EDT 2-378Chapter 2 - Comment Documents Designated Uses 

# Comment ID 0201-A1.001.012
Author Name: Godfrey Mike Organization: Alabama Power Separately, but subject to the preceding comments, Alabama Power supports EPA's proposed changes to § 113.10(g), (k)and (j) inasmuch as the revisions clarify that a UAA is not required in all instances and, instead, is only required when a State is attempting to demonstrate that a use specified in Section 101(a)(2) of the CWA is not attainable.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0202-A2.001.004
Author Name: Frederick Kevin Organization: Wyoming Department of Environmental Quality/Water Quality Division When A UAA Is and Is Not Required The WDEQ/WQD supports the portions of the revision to 131.10(k) that clarifies that a UAA is not required to remove a designated use that is not specified in section 101(a)(2) of the Act. To clarify this point further, WDEQ/WQD recommends that the EPA modify the definition of use attainability analysis at 131.3(g) to include only the 101(a)(2) uses. A modified definition would read: "Use attainability analysis is a structured scientific assessment of the factors affecting the attainment of the aquatic life or recreation use which may include physical, chemical, biological, and economic factors as described in §131.10(g)." The WDEQ/WQD also suggests that additional clarification be included within the regulation so that a UAA is not required when a state revises a designated use to a more accurate reflection of existing and naturally attainable uses such as aquatic life designated uses (e.g., cold water fishery, warm water fishery, etc.). Such revisions do not result in removing uses, but instead apply more appropriate designated uses and water quality criteria to waters. The currentand proposed language in 131.10(g) does not make a distinction between removing a 101(a)(2) use and adopting subcategories of uses that are still fully protective of 101(a)(2) uses, but are more accurate descriptions of the 101(a)(2) uses. This distinction would allow states much needed flexibility to set appropriate designated uses and water quality criteria for their waters without the requirement to conduct a UAA. In addition, the WDEQ/WQD requests that the EPA take this opportunity to further evaluate the UAA process as well as the 131.10(g) factors. Wyoming currently has many waters where uses have been designated and retained, even when the designated uses are not existing or attainable, due to the resources required to conduct a UAA. Historically, designated uses were assigned in a simplified manner in Wyoming, with little evaluation of whether the uses were

08/04/2015 05:01 PM EDT 2-379Chapter 2 - Comment Documents Designated Uses existing or attainable on a particular water body. This has resulted in reluctance by the state to apply some surface water standards. Neither the current regulations nor the proposed revisions give states sufficient flexibility to change designated uses. For example, the regulations could be revised to limit the need for a UAA to instances when States wish to modify aquatic life and recreation uses due to anthropogenic activities (131.10(g)(3), 131.10(g)(4), 131.10(g)(6)) rather than natural conditions (131.10(g)(1), 131.10(g)(2), 131.10(g)(5)). The 131.10(g) factors should also be modified to allow states to adopt sub-categories of recreation designated uses when a water body is simply not used for primary contact recreation (e.g., the water body is not publicly accessible, primary contact recreation is prohibited, etc.), rather than requiring the state to demonstrate that the use is not "attainable" due to one of the existing six factors.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0202-A2.001.008
Author Name: Frederick Kevin Organization: Wyoming Department of Environmental Quality/Water Quality Division Furthermore, if the EPA does define the 101(a)(2) uses as including consumption of aquatic organisms, the EPA needs to modify the regulations so as to not require a UAA to remove the aquatic organism consumption use simply because organisms that are commonly consumed do not naturally occur in a water body.
Response For response to this comment, see the following response essay(s): 5.g 5.j 

# Comment ID 0207-A1.001.005
Author Name: Bodine Susan Organization: American Farm Bureau Federation et al.

• Use attainability analysis - EPA should encourage more, not fewer, UAAs. Specifically, EPA should remove the presumption that a section 101(a)(2) use is an attainable use that should be adopted. Instead, EPA should require a UAA before any new use, or change in use, is adopted. To facilitate the adoption of UAA's, EPA should provide additional guidance to EPA regions to encourage them to work with states on UAAs.

08/04/2015 05:01 PM EDT 2-380Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.g 5.j 

# Comment ID 0207-A1.001.021
Author Name: Bodine Susan Organization: American Farm Bureau Federation et al. 2. When a UAA is required. EPA is proposing to amend 40 C.F.R. § 131.10(j) to specify that a state must perform a UAA only when designating a use for the first time that does not include a CWA § 101(a)(2) use or is removing an existing CWA § 101(a)(2) use. While a UAA may be appropriate in this circumstance, a UAA also should be performed when other new uses are adopted or if no UAA has ever been conducted for the water body. First, it is important to note that the uses identified in in § 101(a)(2) are goals. There is nothing in the CWA to suggest that the "goals" of the Act create independent requirements. In fact, §101(a) makes it clear that the goals are to be implemented "consistent with the provisions of this Act." Thus, the actual establishment of water quality uses must occur in accordance with a specific statutory authority. That authority is found in § 303(c), which expressly gives states the authority to establish uses for waters, "taking into consideration their use and value" for a variety of purposes specified in the Act. Second, it is important to note that before a use identified in § 101(a)(2) becomes even a goal, it must be attainable. The statute reads as follows: wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water [shall be achieved] (emphasis added). In its water quality standards regulation, EPA proposes to create a presumption that the § 101(a)(2) uses are attainable. As noted above, this interpretation is not supported by the statute. This interpretation also imposes a significant burden on municipalities, industries, and other land owners across the United States. The problem created by this interpretation of the Act is particularly acute because many states adopted fishable, swimmable uses without recognizing that meeting those uses could impose an unreasonable burden, indeed significant and widespread social and economic impacts, on American families.
Response For response to this comment, see the following response essay(s):

08/04/2015 05:01 PM EDT 2-3815.i Chapter 2 - Comment Documents Designated Uses 5.g 5.j 

# Comment ID 0212-A1.001.004
Author Name: Norton Kelly Organization: Arizona Mining Association Aspects of proposal that AMA generally supports Clarification that a use attainability analysis is not needed to remove a designated use that is not a "fishable, swimmable" use (proposed § 131.10(k)(2)): It is reasonable not to require the expenditure of scarce state agency resources to perform a formal use attainability analysis in order to remove a use that is not specified in Section 101(a)(2) of the CWA (i.e., that is not a fishable/swimmable use). In Arizona, there are several such use classifications, including two agricultural uses (agricultural irrigation and agricultural livestock watering). By not including such uses in Section 101(a)(2), the Act left the decision to designate or remove them to the discretion of the states. The states, and not EPA, therefore should be the ones to determine what procedures are needed to remove such uses, and those procedures should not be the same as are mandated in 40 C.F.R. § 131.10 for the fishable/swimmable uses specified in the Act. The proposed clarification in 40 C.F.R. § 131.10(k) is consistent with the focus of the Act on fishable/swimmable uses, and with the recognition of the primary role of state in determining appropriate uses of water resources (CWA Section 101(b)).
Response For response to this comment, see the following response essay(s): 5.g 5.h 

# Comment ID 0217-A2.001.006
Author Name: Hale Michelle Organization: Alaska Department of Environmental Conservation 2. Designated Uses EPA has proposed a change to 40 CFR 131.10 suggesting that states develop "sub-classes for the uses defined in CWA 5 101(a)(2)," either on a statewide or location specific basis, and requiring states to ensure that the "highest attainable use" (HAU) and the criteria to protect it are identified in a use attainability analysis (UAA) that proposes to remove or modify a designated use. ADEC requests that EPA refrain from adopting this new requirement or at a

08/04/2015 05:01 PM EDT 2-382Chapter 2 - Comment Documents Designated Uses minimum, make identification of HAU an option - at the state's discretion. ADEC is concerned that implementation of HAU will have significant workload impacts that will slow any adjustment of designated uses. Alaska has designated uses that apply broadly to all waters except for a small number (i.e. 25 waters presently) that have been reclassified to remove some uses. Response For response to this comment, see the following response essay(s): 5.g 5.f.i 

# Comment ID 0217-A2.001.009
Author Name: Hale Michelle Organization: Alaska Department of Environmental Conservation ADEC supports the clarification that UAA justification and the associated review based on the factors in § 131.10(g) is only required for § 101(a)(2) uses and is not required for other uses defined by a state under CWA 5 303(c)(2)(A). Although much of the same analysis would be required for changes to other use designations, this modification will give states the flexibility to consider other factors and/or seasonal limitations for other uses. EPA should clarify that the requirement to identify the [highest] attainable use is solely tied to the UAA process and therefore is not an independent requirement outside of the UAA process.
Response For response to this comment, see the following response essay(s): 5.g 5.h 

# Comment ID 0217-A2.001.012
Author Name: Hale Michelle Organization: Alaska Department of Environmental Conservation [This excerpt contains red-line/strike-out text. Refer to the original document for recommended edits.]

e. Suggested revision: § 131.10(g) Pursuant to § 131.10(j), States may designate or remove a use or a subcategory of a use as long as the

08/04/2015 05:01 PM EDT 2-383Chapter 2 - Comment Documents Designated Uses action does not remove protection for an existing use, and the State can demonstrate that attaining the use is not feasible because of one of the six factors in this paragraph. If a State adopts new or revised WQS based on a use attainability analysis, the State shall [begin new text] ensure those standards include [end new text] [begin strikeout] also adopt the highest [end strikeout] attainable uses and the criteria to protect those use[begin new text]s[end new text] and the criteria to protect those [begin new text] uses [end new text]. To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0220-A2.001.008
Author Name: Anderson Paul Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District Finally, to further clarify the discussion of when a UAA is not required (p. 54525, first column) the District suggests that EPA consider specifying in Section 131.10(k)(2) that a UAA is not required to remove a use not specified in CWA §303(c)(2)(A) such that it would read: The State wishes to remove a designated use that is not specified in sections 101(a)(2) or 303(c)(2)(A) of the Act, ...

Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0222-A1.001.008
Author Name: Modeer David Organization: Western Urban Water Coalition 3. The proposed language for section 131.10(g) should be clarified. The first sentence is a stand-alone concept that addresses the removal of a designated use. However, this sentence adds, for the first time, a reference to "designating," in addition to removing, a use. The sentence then ends with the phrase "and the state can demonstrate the use is not feasible...." The addition of the word "designate" creates confusion because a state would not "designate" a use if "attaining the use is not feasible." The provision then goes on to a second sentence which embodies an entirely

08/04/2015 05:01 PM EDT 2-384Chapter 2 - Comment Documents Designated Uses different concept, i.e., adopting new or revised WQSs based on a UAA. This concept needs its own section. Finally, the current third sentence begins with "to meet this requirement" without any clear indication of what "requirement" is being referenced. One assumes it is the requirement to adopt the HAU. If this is the intended meaning, clarification should be provided. EPA should use separate subsections to describe the addition and removal of a designated use and make clear that the requirement referred to is the requirement to adopt the HAU.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0222-A1.001.010
Author Name: Modeer David Organization: Western Urban Water Coalition 1. Under the proposed language for section 131.10(j)(2), a UAA must be performed to remove a sub-category. This seems unnecessary. EPA should either delete this provision or explain why it is needed.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0224-A1.001.004
Author Name: Ternieden Claudio Organization: Water Environment Federation Second, EPA is making appropriate edits to § 131.10(g) to be clear that the factors listed in § 131.10(g) must be used when a UAA is required by § 131.10(j), and is restructuring § 131.10(k) to clearly articulate when a UAA is not required. EPA intends to clarify requirements for states when adopting and/or removing statutory uses (fish and aquatic life (FAL), wildlife and recreation) or sub-categories of those uses, to avoid conflicting interpretations and inconsistent case
by-case decision-making.
Response For response to this comment, see the following response essay(s):

08/04/2015 05:01 PM EDT 2-385Chapter 2 - Comment Documents Designated Uses 5.g 

# Comment ID 0224-A1.001.008
Author Name: Ternieden Claudio Organization: Water Environment Federation With regard to the proposed revisions to 131.10(g) and (j), EPA intends to add language to these two provisions and then to clarify their relationship and requires that the resultant UAA address both CWA sections 101(a)(2) and 303(c)(2)(A). WEF believes that this change is potentially problematic since the uses described in 303(c)(2)(A) tend to be very location-specific, don't lend themselves well to gradation and require less protection than the uses described in 101(a)(2). Additional clarity to the HAUs process is necessary so to provide transparency to EPA's decision making. The burden associated with performing a UAA with the associated HAU determination for changes to the 303(c)(2)(A) uses would greatly outweigh benefits to water quality, if any such exist. WEF requests that EPA reduce the burden to ensure that benefits outweigh costs.
Response For response to this comment, see the following response essay(s): 5.g 12.a 12.e 

# Comment ID 0225-A1.001.003
Author Name: Blackham Leonard Organization: Utah Department of Agriculture and Food 131.10Designation of Uses (g) The language changed and added to 131.10(g) does more than just clarify the existing rule. In the addition of the word 'designate' to the rule, the EPA has given itself a new level of oversight. This will encumber the states and tribes with unnecessary paper work which will have to be given to the EPA to review and approve. There is no reason to include the word 'designate' as the states and tribes already have the authority to designate waters uses inside their boundaries. The only purpose of the addition is to give addition oversight to the EPA. Oversight which is not necessary and will lead to increased labor on the part of the states and tribes.

08/04/2015 05:01 PM EDT 2-386Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.g 12.a 

# Comment ID 0225-A1.001.005
Author Name: Blackham Leonard Organization: Utah Department of Agriculture and Food (j)(1) The new language would require the state or tribe to conduct a use attainability analysis when designating a water body for the first time. A use attainability analysis is time and labor intensive. The addition of this language would place an increased burden on the states and tribes. The burden, in many cases, would be unnecessary and take time and resources that could be better spent on impaired or at risk waters. UAA's should not be mandated by EPA when designating a use(s) for the first time if not necessary. There would be no reason to conduct a UAA analysis when stake holders and the public have been involved in the process and agree with the use.
Response For response to this comment, see the following response essay(s): 5.g 12.a

08/04/2015 05:01 PM EDT 2-387Chapter 2 - Comment Documents Designated Uses 

# Comment ID 0229-A2.001.004
Author Name: Tillison Naomi Organization: Bad River Band of Lake Superior Tribe of Chippewa Indians Designated Uses The Tribe does not support the proposed revision clarifying when a Use Attainability Analysis (UAA) is not required to be completed by a state or authorized tribe. A state or authorized tribe should not be able to remove a designated use that is not specified in section 101(a)(2) of the CWA without completing a UAA or similar type of analysis based on scientifically-sound data and methodology. For example, harvesting wild rice, an aquatic macrophyte, is one of the cultural and subsistence practices the Tribe depends upon. The protection of wild rice is not a use specified in section 101(a)(2) of the CWA. The proposed rule would weaken the current regulation, which does not explicitly allow a state or authorized tribe to remove a non-101(a)(2) use without first completing a UAA. The proposed revisions would allow a state to reduce and eliminate protections of wild rice waters (along with other non-101( a)(2) uses), which threatens the Tribe's treaty rights and is not aligned with the goal of the CWA to promote the maintenance of higher quality waters and restoration of waters not currently meeting WQS.
Response For response to this comment, see the following response essay(s): 5.g 5.h 

# Comment ID 0230-A1.001.008
Author Name: Ettinger Albert Organization: One of the counsel for the Environmental Law and Policy Center et al. When a UAA is not required (78 FR at 54224 - 5) The proposed changes to 40 C.F.R. 131.10(k) set forth when a UAA is not required. Most notably, a state need not perform a UAA when removing a use designation not among those listed in Clean Water Act Section 101(a)(2) which establishes the national goal that water quality be such that it "provides for the protection and propagation of fish, shellfish and wildlife and provides for recreation in and on the water." This proposal is unclear. If a state (e.g. Wisconsin or Ohio) has a special use designation for cold water fish (trout), can it eliminate that use in a water body without doing a UAA? We do not believe that was intended and believe that to capture the apparent intent of the proposed change the proposed rule language of proposed 131.10(k)(2) should be revised to state:

08/04/2015 05:01 PM EDT 2-388Chapter 2 - Comment Documents Designated Uses The State wishes to remove a use that is not related to protection or propagation of fish, shellfish, or to recreation in or on the water.

Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0231-A2.001.010
Author Name: Sanderson Stuart Organization: The Colorado Mining Association [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] Furthermore, in s. 131.10(g), "highest attainable use" should be a State determination, and the regulatory language should be changed in the following manner: "If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the [begin strikeout] highest attainable [end strikeout] use [begin new text] that it determines is the highest attainable [end new text]." Additionally, EPA proposes to change s. 131.10(g) to clarify that when a UAA is required by s. 131.10(j) the factors listed in s. 131.10(g) must be used, and s. 131.10(k) describes when a UAA is not required. This requirement is problematic for many reasons. Primarily, it is problematic because many of these "criteria" may be difficult to prove. Regarding EPA's proposal to amend s. 131.10(j) to specify that a State must perform a UAA only when designating a use for the first time that does not include CWA s. 101(0(2) use ("fishable/swimmable") or is removing an existing CWA s. 101(a)(2) use:

•Even though this is apparently an EPA policy that has never been codified, the CWA does not support the policy.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0231-A2.001.014
Author Name: Sanderson Stuart

08/04/2015 05:01 PM EDT 2-389Chapter 2 - Comment Documents Designated Uses Organization: The Colorado Mining Association

•Whenever a State amends a WQS based on CWA s. 101(0(2), the State must first ensure the use is attainable through a UAA. Additionally, this proposed section includes requirements for conducting UAAs in cases where they were not previously required. Requiring additional UAAs could place a large financial burden on States depending on what and how much data would be required for use-determination. The requirement for doing UAAs when assigning uses to waterbodies can be very time-consuming and expensive.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0234-A2.001.018
Author Name: Andes Fredric Organization: Federal Water Quality Coalition We recommend that EPA adhere to the language of § 101(a)(2), and require a demonstration of attainability before a § 101(a)(2) use is adopted.
Response For response to this comment, see the following response essay(s): 5.g 5.j 

# Comment ID 0234-A2.001.020
Author Name: Andes Fredric Organization: Federal Water Quality Coalition To further this effort, we suggest that EPA amend § 131.10 to require a UAA, if none has been performed for a WQS, before a State adopts a total maximum daily load to implement the standard, as recommended by the National Research Council of the National Academy of Sciences in 2001. [FN5] Alternatively, as noted below, the WQS regulation could require an evaluation of the attainability of all designated uses under the triennial review process.

08/04/2015 05:01 PM EDT 2-390Chapter 2 - Comment Documents Designated Uses [FN5] National Academy of Sciences', National Research Council, Assessing the TMDL Approach to Water Quality Management (2001) ("States should develop appropriate use designations for waterbodies in advance of assessment and refine these use designations prior to TMDL development."), http://www.nap.edu/catalog/10146.html
Response For response to this comment, see the following response essay(s): 5.g 5.j 

# Comment ID 0236-A2.001.009
Author Name: Weigel Brian Organization: Wisconsin Department of Natural Resources [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] Revisions to clarify when a UAA is and is not required WDNR supports the following clarifications:

•When a UAA and one of the "6 factors" in 131.10(g) are required for modifying uses.

•When a UAA is not required. Recommended changes:

•WDNR strongly recommends an addition to the cases in which a UAA is not required. We recommend that EPA differentiate between use corrections versus use modifications. Use corrections should not require a UAA, while use modifications should. Many states, including Wisconsin, give all waters a ‘default' set of uses if no data from the site are available to determine the appropriate uses. Wisconsin has > 150,000 assessment units on >88,000 miles of streams so it is not possible to have data on each assessment, making a default category appealing. When data do become available and a use correction is needed to move the waterbody from a default use to an appropriate use category, a UAA should not be required. In these cases, the state is simply assigning the appropriate use that a waterbody should be attaining in its natural state. A use modification, however, is meant for cases where the waterbody cannot attain its natural uses and are being assigned a ‘lower' use, and a UAA should be required for such a modification. Another potential way to assign terminology to this concept may be that a "Use Analysis" (UA) is done to determine the appropriate natural use categories, whereas a "Use Attainability Analysis" (UAA) is done to determine whether a natural use is attainable or not, and whether it should be replaced with a Modified or Limited use. EPA's proposal states that when a CWA use is being assigned for the first time, a UAA is not required. However, in discussions with EPA staff, it appears that they do not interpret this as including a change from a default use to a

08/04/2015 05:01 PM EDT 2-391Chapter 2 - Comment Documents Designated Uses corrected, field-verified use, though we would assert that this is essentially assigning the use for the first time. We recommend adding the following language (3) under 131.10(k): 131.10(k) A State is not required to conduct a use attainability analysis whenever: (3) The State deems it appropriate to correct a ‘default' or other use that was previously assigned to a waterbody with no/insufficient/non-representative* data, and in its place assign an appropriate use category based on new or refined scientific data. This option is only applicable if the use being assigned represents the use that is appropriate for the waterbody in its natural state. If the use is to be Modified or Limited, a UAA is required.

*Examples of non-representative data may be data that were not collected in a way that was appropriate for assigning uses, or uses assigned based on protocols that have since been significantly improved.

•WDNR supports the clarification stated in the Rationale for Revision that if a use is not fully attainable, the use should not necessarily be removed; instead a modification of the use should be implemented that supports the components or level of the use that are attainable. However, in the actual regulatory language, EPA continues to use the term "remove" a use, when in almost all cases this is not the only or best solution. The following language changes are recommended:
o 131.10(j)(2) The State wishes to remove [begin new text], revise, or modify [end new text] a designated use that is specified in section 101(a)(2) of Act [begin strikeout],[end strikeout] or [begin strikeout] to remove [end strikeout] a subcategory of such a use... [note that this also applies ‘revise or modify' to the subcategories] o 131.10(k)(2) The State wishes to remove[begin new text], revise or modify [end new text] a designated use... o WDNR also recommends checking other language in this section to make any other parallel changes needed. Perhaps the confusion or potential conflict on the topic is at the sub-category level. For example, the fish and aquatic life use category has several subcategories and almost all changes are modifications from one subcategory to another, not a removal of the FAL use altogether.

•WDNR suggests a modification to how EPA constructs its "six factors" for conducting a UAA. This change is beyond those currently proposed in EPA's revisions, but we feel it would be complimentary to EPA's current rulemaking efforts and could be included within the scope of changes. WDNR recommends differentiating between those "factors" that are naturally occurring conditions (for instance, naturally low flow or certain natural physical features) and those that are anthropogenically-induced, and treating them differently for purposes of assigning uses and conducting UAAs. o Natural factors should be used to place a waterbody into an appropriate, initial natural use category, which should not be considered a "Modified" or "Limited" use. A Use Attainability Analysis should not be required to place a waterbody in a use category that reflects its natural conditions. EPA could set an expectation that States/Tribes structure their designated use categories in such a way that covers the range of natural conditions. Because these natural conditions are accounted for in setting the initial use, those of the "six factors" dealing with natural conditions should then be removed from the UAA factors. If a change of use category is needed based on natural conditions, it should be treated as a "correction", as discussed above, rather than as a modification requiring a UAA.

08/04/2015 05:01 PM EDT 2-392Chapter 2 - Comment Documents Designated Uses o A UAA should only be used to designated the use as "Modified" or "Limited" if the waterbody's use is impacted significantly enough by human-caused conditions (the remaining of the six factors) that it cannot meet its natural potential. Natural factors should not be used as a basis for a UAA, and should be removed from the list of "six factors"- provided that there is a way to incorporate those natural factors into the initial designated uses. WDNR recognizes that this is a significant change to the current structure, but feels it would be a significant improvement. WDNR is open to discussing/exploring this idea further with EPA if EPA is interested in the concept.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0237-A2.001.007
Author Name: Tucker James Organization: Idaho Power Company [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.]
4. The State of Idaho has a water quality rule that presumes most state waters will support cold water aquatic life so that an undesignated waterbody is designated for cold water aquatic life by default. In instances like this, where a waterbody has a default beneficial use that is later determined to be inappropriate, the designation of the previously undesignated stream segment should be treated as a first time designation, rather than requiring an UAA. Therefore, a subsection three (3) should be added to EPA's proposed revisions at 40 CFR 131.10(k), as follows: (k)A State is not required to conduct a use attainability analysis under this regulation whenever: (1)The State designates or has designated uses for a water body for the first time that include the uses specified in section 101(a)(2) of the Act, or (2)The State wishes to remove a designated use that is not specified in section 101(a)(2) of the Act, or designate a sub-category of a use specified in section 101(a)(2) of the Act which requires criteria at least as stringent as previously applicable, or [begin new text] (3) The State wishes to designate a beneficial use for an undesignated waterbody that has a default beneficial use applied to it. [end new text]

Response

08/04/2015 05:01 PM EDT 2-393Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0240-A2.001.006
Author Name: Turner Jr. James Organization: Murray Energy Corporation [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] b. This section also includes requirements for conducting UAAs in cases where they were not previously required. This will place a huge financial burden on the states, tribes, and regulated community depending on the (as yet undefined) nature and quality of data that EPA would require for use determination decisions/approval. The requirement for doing UAAs when assigning uses to water bodies can be very time-consuming and expensive.

c. The statement in the preamble that a state need not perform a UAA when first designating (or upgrading) uses if the uses include those specified in 101(a)(2) is not appropriate. What's sauce for the goose is sauce for the gander. The same degree of analysis should be conducted to demonstrate that such a designation or upgrade is [begin new text] actually [end new text] attainable.
Response For response to this comment, see the following response essay(s): 5.g 12.a 

# Comment ID 0241-A2.001.003
Author Name: Licata Angela Organization: New York City Department of Environmental Protection Comments on Proposed Rule EPA proposes to amend 40 C.F.R. § 131.10(g) in part to require that "[i]f a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use and the criteria to protect that use" and to add a definition of "highest attainable use." [FN1] The proposed rule would also amend 131.10 (j)and (k) to state that a UAA is required only when (i) a state wishes to designate uses for a water body for the first time that do not include the uses specified in section 101(a)(2) of the Act, or (2) a state wishes to remove a designated use that is specified in section 101(a)(2) of the Act.

08/04/2015 05:01 PM EDT 2-394Chapter 2 - Comment Documents Designated Uses The 2012 recommended criteria for Enterococcus do not apply to water bodies that are currently designated for secondary contact recreation. In setting water quality standards, EPA should encourage states to take into account the difference in risk between primary and secondary contact activities. For example, EPA's 2012 recommended recreational water quality criteria are intended for use by states to adopt water quality standards to protect the designated use of coastal recreation waters, consistent with the BEACH Act. However, many coastal states, including New York, do not have secondary contact recreational criteria for Enterococcus. The lack of specific criteria established by EPA for secondary contact recreation, as well as the lack of epidemiological studies to evaluate the risk associated with secondary contact activities, places the burden to undertake such studies on states which have few resources to undertake such an intensive and time-consuming effort. As a result, states may short circuit the application of properly adopted use classifications, and simply seek to apply EPA's recommended recreational water quality criteria to all water bodies, regardless of use. This approach, in turn, shifts the burden on municipalities, whose resources are already stretched, to conduct UAA analyses for individual water body segments, including conducting any necessary epidemiological studies in an attempt to encourage the relevant governing state authority to establish appropriate site specific criteria for secondary contact recreation based on sound science. Even where municipalities take on this costly and labor intensive work, NYCDEP is concerned that states may seek to use this rule as a basis to simply impose recreational water quality criteria as the default benchmark for all water bodies regardless of best use, and regardless of whether those criteria are actually attainable. [FN1] EPA, Supplemental Information for Water Quality Standards Regulatory Clarifications Proposed Rule (August 2013) available at http://water.epa.gov/scitech/swguidance/upload/Supplemental-Information-Comparison-of-Existing
Rule-Language-and-Proposed-Rule-Language.pdf (emphasis added).
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0244-A2.001.008
Author Name: Loomis Marion Organization: Wyoming Mining Association The proposal also specifies when the State must perform a UAA at 131.10(j). The two situations are 1) when the State designates or has designated uses for a water body for the first time that do not include the 101(a)(2) (fishable / swimmable) uses and 2) when removing a 101(a)(2) (fishable / swimmable) designated use.
Response For response to this comment, see the following response essay(s): 5.g

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# Comment ID 0249-A2.001.006
Author Name: Calamita F. Paul Organization: General Counsel on behalf of The Wet Weather Partnership et al. 2. Designated Uses We understand EPA's proposed modifications concerning designated uses to primarily address (1) the inclusion of a specific requirement to identify and require the Highest Available Use (HAU), a defined term, whenever a state considers the removal of a designated use or a use sub-category; and (2) clarifications as to when a Use Attainability Analysis (UAA) is and is not required.In identifying the HAU the proposed change specifies that the state may either utilize its current use categories or subcategories, develop new use categories or sub-categories, or adopt another location-specific or other available use. From the Preamble, we understand these options to be non-exclusive, 78 Fed. Reg. at 54524, and that the states are free to use other approaches. We recommend that the regulation itself in section 131.10(g) specifically refer to these approaches as "non-exclusive" in order to permit the states to handle possible designated use changes as effectively as possible.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0251-A2.001.010
Author Name: Wigal Jennifer Organization: Oregon Department of Environmental Quality Conducting Use Attainability Analyses DEQ supports EPA's proposed revisions to 40 CFR 131.10(k) to clarify that a UAA is not needed for uses not specified in CWA section 101(a). DEQ supports ACWA's comments on this topic.
Response For response to this comment, see the following response essay(s):

08/04/2015 05:01 PM EDT 2-396Chapter 2 - Comment Documents Designated Uses 5.g 

# Comment ID 0252-A2.001.008
Author Name: Fry Eric Organization: Peabody Energy Additionally, EPA proposes to change s. 131.10(g) to clarify that when a UAA is required by s. 131.10(j) the factors listed in s. 131.10(g) must be used, and s. 131.10(k) describes when a UAA is not required. This requirement is problematic for many reasons. Primarily, it is problematic because many of these "criteria" may be difficult to prove. Regarding EPA's proposal to amend s. 131.10(j) to specify that a State must perform a UAA only when designating a use for the first time that does not include CWA s. 101(a)(2) use ("fishable/swimmable") or is removing an existing CWA s. 101(a)(2) use:

•Even though this is apparently an EPA policy that has never been codified, the CWA does not support the policy.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0252-A2.001.012
Author Name: Fry Eric Organization: Peabody Energy

•Whenever a State amends a WQS based on CWA s. 101(a)(2), the State must first ensure the use is attainable through a UAA.
Response For response to this comment, see the following response essay(s): 5.g 5.j 

# Comment ID 0252-A2.001.014
Author Name: Fry Eric

08/04/2015 05:01 PM EDT 2-397Chapter 2 - Comment Documents Designated Uses Organization: Peabody Energy Additionally, this proposed section includes requirements for conducting UAAs in cases where they were not previously required. Requiring additional UAAs could place a large financial burden on States depending on what and how much data would be required for use-determination. The requirement for doing UAAs when assigning uses to waterbodies can be very time-consuming and expensive.
Response For response to this comment, see the following response essay(s): 5.g 12.a 

# Comment ID 0255-A2.001.005
Author Name: Quaempts Eric Organization: Confederated Tribes of the Umatilla Indian Reservation Use Attainability Analyses Use Attainability Analyses (UAAs) should be employed very infrequently, in very limited circumstances. Any claims that a water body is unable to meet designated uses should be treated very cautiously. The burden of proving that standards and uses cannot be met should be a high one; downgrading criteria should be avoided in all but the rarest situations. UAAs should not be a convenient excuse for a state to pander to powerful political interests or otherwise fail to live up to its duties as a sound steward of natural resources and the public welfare. Accepting poor water quality because of "human-caused conditions or sources of pollution" that cannot be remedied should be examined closely as a possible indicator of weak state-level implementation or enforcement.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0260-A2.001.004
Author Name: Drazowski Barry Organization: Izaak Walton League Minnesota Division et al. B. EPA Must Modify its Proposal to Narrow the Scope of Use Attainment Assessments.

08/04/2015 05:01 PM EDT 2-398Chapter 2 - Comment Documents Designated Uses
Minnesota Clean Water Groups also strongly object to EPA's proposal to "clarify" that use attainability analysis ("UAA") requirements need not be met when standards enacted in industrial, agricultural or drinking water sections of a rule are proposed to be changed. This part of EPA's proposed rule is another step backward that weakens Clean Water Act requirements. Current rules expressly state that a UAA is required for uses listed in 101(a)(2), but they do not excuse a state from doing a UAA for removing other uses. 40 C.F.R. § 131.10(j). By explicitly exempting and downgrading other uses from the need for a UAA, EPA is weakening the existing rule. The UAA provides an assurance that dischargers will not be exempted from compliance with WQS and standards will not be weakened when compliance with standards is feasible and existing uses can be attained. C. Water Quality Standards Must Be Maintained to Protect Fish, Aquatic Life, Wildlife and Human Health. Minnesota Clean Water Groups would request that the EPA reconsider its proposed rule and use this rulemaking as an opportunity to clarify that the Clean Water Act disfavors removal of state standards and intends that both the factors contained in 40 C.F.R. §131.10(g) and UAA requirements be used to enhance compliance with state standards, not to make it easier for states to circumvent their own rules.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0261-A2.001.007
Author Name: Bartlett Drew Organization: Florida Department of Environmental Protection Ill. Proposed Revisions to § 131.10 (Designation of uses). While we support EPA's attempt to clarify when a UAA is required, the proposed revisions only partially attain this goal. The Department suggests § 131.10(g) be reworded as follows: States may adopt new or revised designated uses that do not protect the uses specified in section 101(a)(2) of the Act, only when consistent with the other provisions of § 131.10 and if the State can demonstrate that attaining the 101(a)(2) use is not feasible because of one of the six factors in this paragraph. In adopting new or revised designated uses that do not protect the uses in section 101(a)(2) of the Clean Water Act, States must adopt the use most similar to the uses in section 101(a)(2) of the Act. This subsection is not applicable to refinements in the designated use that still protect the 101(a)(2) uses. The Department further suggests that EPA clarify that the revisions to § 131.10 are prospective in nature and will not require States to revisit designated uses already adopted and in effect. EPA proposes to make this clarification for variances in § 131.14, and is strongly encouraged to do so in § 131.10 as well.

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Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0262-A2.001.008
Author Name: Rawlings Laurent Organization: Home Builders Association of Kentucky Furthermore, EPA proposes to change Section 131.10(g) to clarify that when a UAA is required by Section 131.10(j) the factors listed in Section 131.10(g) must be used, and Section 131.10(k) describes when a UAA is not required. This requirement is problematic for many reasons. Primarily, because many of these "criteria" may be difficult to prove. As to EPA's proposal to amend Section 131.10(j) to specify that a State must perform a UAA only when designating a use for the first time that does not include CWA Section 101(a)(2) use ("fishable/swimmable") or is removing an existing CWA Section 101(a)(2) use:

• Although this is evidently an EPA policy that has not been codified, the CWA does not support this policy
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0262-A2.001.012
Author Name: Rawlings Laurent Organization: Home Builders Association of Kentucky

•Whenever a State amends a WQS based on CWA Section 101(a)(2), the State must first ensure the use is attainable through a UAA Furthermore, this proposed section includes requirements for conducting UAAs in cases where they were not previously required. Requiring additional UAAs could place a large financial burden on Kentucky depending on what and how much data would be required for use-determination. The requirement for doing UAAs when assigning uses to waterbodies can be very time-consuming and costly.

08/04/2015 05:01 PM EDT 2-400Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0263-A2.001.004
Author Name: Gretchen Watkins Larry Wawronowicz Organization: Lac du Flambeau Band of Lake Superior Tribe of Chippewa Indians Designated Uses The Tribe does not support the proposed revision clarifying when a Use Attainability Analysis (UAA) is not required to be completed by a state or authorized tribe. A state or authorized tribe should not be able to remove a designated use that is not specified in section 101(a)(2) of the CWA without completing a UAA or similar type of analysis based on scientifically-sound data and methodology. Harvesting wild rice, an aquatic macrophyte, is one of the cultural and subsistence practices the Tribe depends upon. The protection of wild rice is not a use specified in section 101(a)(2) of the CWA. The proposed rule would weaken the current regulation, which does not explicitly allow a state or authorized tribe to remove a non-101(a)(2) use without first completing a UAA. The proposed revisions would allow a state to reduce and eliminate protections of wild rice waters (along with other non-101(a)(2) uses), which threatens the Tribe's treaty rights and is not aligned with the goal of the CWA to promote the maintenance of higher quality waters and restoration of waters not currently meeting WQS.
Response For response to this comment, see the following response essay(s): 5.g 5.h 

# Comment ID 0264-A2.001.006
Author Name: Chard-McClary Shellie Organization: Association of Clean Water Administrators [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] § 131.10(g) Pursuant to § 131.10(j), States may designate or remove a use or a subcategory of a use as long as the action does not remove protection for an existing use, and the State can demonstrate that attaining the designated use is not feasible because of one of the six factors in this paragraph. If a State adopts new or revised WQS based on a use attainability analysis, the State shall [begin new text] ensure those standards include and/or protect [end new text]

08/04/2015 05:01 PM EDT 2-401Chapter 2 - Comment Documents Designated Uses [begin strikeout] also adopt the highest [end strikeout] attainable use [begin new text] s [end new text] and the criteria to protect those [begin new text] uses [end new text]. To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use.

Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0264-A2.001.011
Author Name: Chard-McClary Shellie Organization: Association of Clean Water Administrators 4) Revisions to clarify when a UAA is and is not required ACWA supports EPA's proposed clarifications regarding specifying that a UAA is only required when demonstrating that a use specified in section 101(a)(2) of the Act is not attainable. States have observed that this interpretation has not been consistent among EPA actions on state WQS in the past and this revision will assist in providing clarity to the states and others interested in state revisions to WQS and provide needed consistency in EPA actions. This revision could be further improved by also clarifying in any final rule that replacing a use specified in section 101(a)(2) of the Act with a more specific version of that use is considered a refinement of a use and does not require a UAA. An example of such an action is replacing a general aquatic life use with a use that is specific to an aquatic life community or life stage (e.g., cold water fishery use or use targeting fish spawning). EPA should provide guidance or clarification on what information is needed for such an action.

Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0268-A2.001.009
Author Name: Bell Nina Organization: Northwest Environmental Advocates

08/04/2015 05:01 PM EDT 2-402Chapter 2 - Comment Documents Designated Uses Revisions to Clarify When a UAA is and is Not Required We are disheartened to see that EPA is proposing to revise the regulations to more readily allow downgrades of uses by narrowing when a UAA is required. EPA has not provided an explanation of why it has taken a position that is different from that taken in 1998 in the ANPRM. It merely states here that "EPA has implemented the CWA to focus on uses specified in § 101(a)(2) and now believes that the better interpretation [is the one proposed today]." This statement does not explain how it is that EPA has purportedly focused on the § 101(a)(2) uses such that it now makes sense for EPA to not seek to use the CWA to the maximum extent possible to prevent private dischargers and private land owners from causing pollution, risk, and expense to public water treatment facilities and their customers. This is short
sighted and puts the emphasis on using drinking water treatment and medical treatments to solve human health problems rather than pollution control technologies, changing who should pay and likely costing more economically, and certainly emotionally. It is not enough for EPA to explain such a poor public policy in one sentence. In addition, it is clearly a policy choice because EPA is not saying that its previous interpretation of the statute and regulations was wrong, only that it now chooses to view the rules differently. It's now a "better" interpretation, id. at 54524, but why precisely it's better is left to the reader's imagination.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0268-A2.001.046
Author Name: Bell Nina Organization: Northwest Environmental Advocates [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.]
5. Amend § 131.10 by revising paragraph (g) introductory text and paragraphs (j), and (k) to read as follows: (g)Pursuant to § 131.10(j), States may designate or remove a use or a sub-category of a use as long as the action does not remove protection for an existing use, and the State can demonstrate that attaining the use is not feasible because of one of the six factors in this paragraph. If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use and the criteria to protect that use. To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories, [begin new text] if such subcategories identify the highest attainable use, [end new text] develop new use categories or subcategories, or adopt another use which may include a location-specific use. We support the changes proposed by EPA to subsection (g) as modified to ensure that states do not fail to provide protection by using existing inadequately tailored use designations. (j)A State must conduct a use attainability analysis as described in § 131.3(g), and § 131.10(g), whenever:

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(1)The State designates or has designated uses for a water body for the first time that do not include the uses specified in section 101(a)(2) of the Act, or (2)The State wishes to remove a designated use [begin strikeout] that is specified in section 101(a)(2) of the Act [end strikeout], to remove a sub-category of such a use, [begin strikeout] or [end strikeout] to designate a sub-category of such a use which requires criteria less stringent than previously applicable [begin new text] , or to remove a use that may provide protections for an existing use [end new text] . We support the changes proposed by EPA to subsection (j) with the added language in redline edits above to provide additional clarity and consistency. While a state may not conduct a UAA to remove an existing use, it may not see the connection between the uses it seeks to remove or downgrade and existing uses and their protections. Because most states do not consider existing uses in their regulatory actions they are prone to forgetting they require protection. By adding this language, the rules remind states, EPA, and the public that protections for designated uses provide protections for unidentified existing uses that must be evaluated in the UAA process. This corresponds with the language change proposed by EPA in subsection (g). (k)A State is not required to conduct a use attainability analysis whenever: (1)The State designates or has designated uses for a water body for the first time that include the uses specified in section 101(a)(2) of the Act, or [begin strikeout] (2) The State wishes to remove a designated use that is not specified in section 101(a)(2) of the Act, or designate a sub-category of a use specified in section 101(a)(2) of the Act which requires criteria at least as stringent as previously applicable. [end strikeout] We urge EPA to not eliminate protections for drinking water by accepting the redlined edits above. In addition, the test of whether a UAA is required should not be the stringency of current criteria. As EPA well knows, criteria change over time whereas the uses are intended to be more permanent.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0269-A2.001.003
Author Name: Klotz Mark Organization: New York State Department of Environmental Conservation (2)Designated Uses

08/04/2015 05:01 PM EDT 2-404Chapter 2 - Comment Documents Designated Uses EPA proposes to amend 131.10(g) to clarify when a Use Attainability Analysis (UAA) is, and is not needed, and to provide that where a use cannot be attained, the Highest Attainable Use (HAU) and criteria to protect that use shall be adopted in its place. NYSDEC supports this change because it both clarifies and strengthens our ability to protect water quality where a use cannot be attained.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0271-A1.001.004
Author Name: Montoya Victor Organization: Pueblo of Sandia 3. Edits to § 131.10 (g). The Pueblo of Sandia agrees with the edits and hopes these will better define the factors needed when a use attainability analysis (UAA) is required:
4. Edits to § 131.10 (k). The Pueblo of Sandia agrees with the edits and clarifications. Hopefully these will better define when a use attainability analysis (UAA) is not required.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0272-A2.001.009
Author Name: Jennifer Chavez Janette Brimmer Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 II. USE ATTAINABILITY ANALYSES ("UAA") A. The Proposed Rule Requiring Highest Attainable Use Is Consistent With And In Furtherance Of The Clean Water Act But Fails To Address The Larger Problem With UAAs. While the Water Protection Groups support EPA's proposal to make clear that the highest attainable use always be protected, see 78 Fed. Reg. 54,522, there are far more serious problems with the use of UAAs that should also be addressed by EPA in this rulemaking.

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1. Provisions Allowing UAAs Must Be Narrowed. UAAs should rarely be a valid option under the Clean Water, allowed in only the most limited circumstances. Again, the Clean Water Act requires that states designate uses and water quality criteria necessary to protect and attain those uses. States are to strictly regulate point source discharges of pollutants for eventual elimination and to, at a minimum, ensure that water quality standards are met. For waters that are cleaner than standards, states are required to implement antidegradation requirement to ensure that the high quality is maintained. At this point, these requirements of the Clean Water Act are 40 years old. States have designated uses and those uses should either be met, or conditions should be improving (or at least not degrading) such that they will be met. Given the passage of time, the use of UAAs should at this point be almost nonexistent because the conditions enumerated in the existing regulations for a state using a UAA to lessen water quality protections were long ago known at the time the state was designating uses. For example, natural low oxygen or high nutrient conditions should by now have been identified (e.g. in some wetlands.) Severely-altered situations such as the channelized and concrete-lined Los Angeles River have been that way since before the Clean Water Act. This is the case as well with large dams. If a state claims a water body is now allegedly not meeting uses and is "unable" to meet uses, then that is a red flag that the state has not been adequately and properly implementing the Clean Water Act; it should not be an excuse for the state to now downgrade its water quality standards. 40 years into the Clean Water Act, UAAs-the permanent dumbing-down of standards for a particular water body--should for the most part be obsolete. Given the purposes, intent, and requirements of the Clean Water Act and fact that UAAs have largely outlived their usefulness or valid application, EPA should be tightening the UAA requirements in this rulemaking. The current EPA regulation provides that a state may not remove an existing use unless the state demonstrates one or more of six specific factors. 40 C.F.R. § 131.10(g). The third, fifth, and sixth factors are of particular concern. Those three are so broadly drawn as to allow for mischief and they should no longer be allowed as excuses to sacrifice waters to lesser protections. The third factor allows water quality to be sacrificed due to "human-caused conditions or sources of pollution" that cannot be remedied. A state proposing to write off a water body based on this factor is admitting that it has allowed human-caused factors to degrade a water body since its initial designation shortly after passage of the Clean Water Act. This is unacceptable under the Clean Water Act and should be unacceptable to EPA. It provides the wrong incentive to states and polluters. The fifth factor makes no sense. It purports to provide that "natural" physical conditions unrelated to water quality may preclude attainment of aquatic life uses. It appears to mix what might actually be natural conditions with what could just as readily be human-caused conditions such as lack of proper substrate from erosive scouring (due to inadequate stormwater controls and/or land uses such as clear cut logging that also bury substrates in sediment), lack of adequate cover (again, could readily be due to uncontrolled development or agricultural or logging practices) or inadequate flow or depth, (again in the west this could be due to water policies and development practices). This factor must simply be eliminated as it will encourage further degradation. It makes no sense that a state would have designated a particular use that is incompatible with natural conditions in the first instance, and it should not be allowed to use human-caused conditions as an excuse to downgrade waters now. The sixth factor again has outlived its usefulness or at least requires much more detail to avoid abuse. This factor provides an excuse for a state to avoid applying controls necessary to meet water quality standards and to lessen protections for the water body, if the controls necessary to achieve water quality standards result in "substantial and widespread economic and social impact." Again, at this point in the Clean Water Act's history, states should be

08/04/2015 05:01 PM EDT 2-406Chapter 2 - Comment Documents Designated Uses employing controls necessary to meet water quality standards, at a minimum for point sources. 40 C.F.R. § 122.44(d). Presumably then, the sixth factor should be read to address only non-point sources of pollutants, primarily agriculture. Given that states rarely, if ever, regulate nonpoint agricultural pollution, it seems that the sixth factor should have no application. At a minimum, without more guidance, the sixth factor amounts to the defense of "it costs too much," an excuse hopefully not contemplated by EPA as acceptable for lessening protection for waters. Tightening and narrowing these loopholes for states will substantially reduce the lessening of water quality standards and protections through the use of UAAs. UAAs are generally inconsistent with the intent, purpose, and functioning of the Clean Water Act and should be limited such that they are very rare occurrences.
Response For response to this comment, see the following response essay(s): 5.g 

# Comment ID 0283-A1.001.006
Author Name: Thorme Melissa Organization: Downey Brand Attorneys LLP on behalf of several clients Determining that a use is unattainable may not require a formal structured scientific assessment. For example, where a channel is concrete-lined, a State should be able to determine, without expensive studies and reports, that section131.10(g)(4) applies and hydrologic modifications prevent the attainment of a full suite of aquatic life uses and to reassign a sub-category of aquatic life that can survive in the highly modified environment of a concrete-lined channel. Similarly, where other conditions, such as low flow or improper substrate exist, a State should be able to merely present those facts with supporting evidence and rely on section 131.10(g)(2) or (g)(5) without the need for a complicated scientific study. Similarly, if the only water available in a channel is treated effluent, the use should be able to be easily modified to adopt an effluent dominated waterway designation or limited aquatic life use that can support aquatic life, but may not be able to meet all national water quality criteria due to the quality of the water available. In such cases, adopting criteria based on less sensitive species or on a different cancer risk factor (e.g., 10^-5 instead of 10^-6) for those waters may provide the needed flexibility so long as these actions are not classified as "less stringent." This type of flexibility and these types of adjustments should be discussed and encouraged. The triennial review process would then be used to upgrade uses in the future if the underlying reasons for the use modification no longer existed (e.g., concrete channel or effluent removed).
Response For response to this comment, see the following response essay(s): 5.g 6.g

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# 5.H - DU - REM NON-101(A)(2) USES Comment ID 0147-A2.001.004
Author Name: Gaskin David Organization: Nevada Division of Environmental Protection Nevada supports language changes clarifying that Use Attainability Analyses are not needed when removing uses not specified in section 101(a)(2). The current regulation has led to confusion and uncertainty regarding appropriate actions needed to remove non-101(a)(2) uses.
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section A 

# Comment ID 0196-A1.001.008
Author Name: Bostic Jason Organization: West Virginia Coal Association WVCA does, however, support EPA's proposal to clarify that a use not specified in Sec. 101(a)(2) may be removed without a UAA, but suggests that additional language be added requiring that, whenever a state amends a WQS based on Sec. 101(a)(2), a UAA must be performed to ensure the attainability of the use. Furthermore, EPA should not require states to look at future attainable uses based on things such as the potential effectiveness of best management practices. Again, rather than provide clarity, such language merely increases uncertainty.
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section A 5.h: Section D 5.h: Section E 

# Comment ID 0197-A1.001.007
Author Name: Garrison Naoh

08/04/2015 05:01 PM EDT 2-408Chapter 2 - Comment Documents Designated Uses Organization: Natural Resources Defense Council The Proposed Rule also includes changes to 40 C.F.R. § 131.10(k) setting forth that a UAA is not required when a state removes a use designation that is not enumerated under 33 U.S.C. § 1251(a)(2) (i.e., "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water"). (78 Fed. Reg. at 54,524-55.) The current requirements for removing uses under 40 C.F.R. § 131.10(j) do not limit requirements to perform a UAA to only those uses listed under section 1251(a)(2), and this proposal would represent a significant weakening of the existing rule-one that would affect protections for drinking water and a number of other potential uses. We strongly urge EPA to eliminate this proposed change, and to maintain the current rule's protections for non-fish, shellfish, wildlife, and recreation uses.
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section B 5.g 

# Comment ID 0206-A1.001.007
Author Name: Foster Kelly Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] II. Designated Uses (78 Fed. Reg. 54,522-5) With these proposed revisions to 40 C.F.R. §§131.1 and 131.10, EPA is proposing a radical change to long-standing interpretations of the CWA and water quality standards requirements. According to 40 C.F.R. §131.2: A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria necessary to protect the uses. States adopt water quality standards to protect public health or welfare, enhance the quality of water and serve the purposes of the Clean Water Act (the Act). ‘‘Serve the purposes of the Act'' (as defined in sections 101(a)(2) and 303(c) of the Act) means that water quality standards should, wherever attainable, provide water quality for the protection and propagation of fish, shellfish and wildlife and for recreation in and on the water and take into consideration their use and value of public water supplies, propagation of fish, shellfish, and wildlife, recreation in and on the water, and agricultural, industrial, and other purposes including navigation. [emphasis added] The CWA, EPA's implementing regulations, and EPA's Water Quality Standards Handbook have long required protection of both 101(a)(2) uses (protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water) and 303(c)(2) uses (public water supplies, propagation of fish and wildlife, recreation, agriculture and industrial

08/04/2015 05:01 PM EDT 2-409Chapter 2 - Comment Documents Designated Uses purposes, and navigation). [FN1] CWA Section 101(a)(2) provides that "it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife andprovides for recreation in and on the water be achieved by July 1, 1983." CWA Section 303(c)(2) establishes a longerterm requirement that water quality "standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation." States are required to adopt "[u]se designations consistent with the provisions of sections 101(a)(2) and 303(c)(2) of the Act." 40 C.F.R. §131.6 (a). Further, 40 C.F.R. § 131.10(a) similarly requires that "[e]ach State must specify appropriate water uses to be achieved and protected. The classification of the waters of the State must take into consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes including navigation." Once a use has been designated, the use cannot be removed if it is an existing use unless a use requiring more stringent criteria is added, and other designated uses cannot be removed unless the use is demonstrated not be to attainable and the requirements in 40 C.F.R. §131.10(g) are satisfied. Section 101(a)(2) uses are presumed attainable unless a state or tribe affirmatively demonstrates through a UAA that 101(a)(2) uses are not attainable as provided by one of six regulatory factors at Section 131.10(g). All uses are deemed to be "attainable, at a minimum, if the uses can be achieved (1) when effluent limitations under section 301(b)(1)(A) and (B) and section 306 are imposed on point source dischargers, and (2) when cost-effective and reasonable best management practices are imposed on nonpoint source dischargers." 40 C.F.R. § 131.10(d). Under the existing 40 C.F.R. §131.10(j), states "must conduct a use attainability analysis ["UAA"]. . .whenever: (1) the State designates or has designated uses that do not include the uses specified in section 101(a)(2) of the Act; or (2) the State wishes to remove a designated use that is specified in section 101(a)(2) of the Act or adopt subcategories of uses specified in section 101(a)(2) that require less stringent criteria." [emphasis added]. A UAA is "a structured scientific assessment of the factors affecting the attainment of the use which may include physical, chemical, biological, and economic factors as described in § 131.10(g)." 40 C.F.R. §131.3(g). The only existing exception to the UAA requirement is for designation of 101(a)(2) uses. 40 C.F.R. §131.10(k). In sum, designated uses, such as public water supply, recreation, and fish and wildlife propagation, are essential components of water quality standards. Wherever attainable, the water quality standards must provide water quality protection for all of the uses listed in 40 C.F.R. §131.2. Once a use of a waterbody has been designated, states develop criteria to protect those uses, which then serve as the fundamental basis for protecting, maintaining and improving state water quality under the CWA. These designated uses cannot be removed from the states' water quality standards except in limited circumstances set forth in the existing EPA water quality regulations, including the requirements for UAAs. For example, states may not remove any designated use without conducting the analysis described in 40 C.F.R. § 131.10(g). While it is not apparent from the rulemaking notice, the current proposal amends existing regulations in 40 C.F.R. §§131.3 and 131.10 in a manner that limits the requirements for removal of designated uses, even existing uses, to only uses specified in CWA Section 101(a)(2). The Proposed Rule does this by limiting the application of Section 131.10(g) to actions requiring a UAA in the revised Section 131.10(j). The revised Section 131.10(j) deletes the language requiring UAAs for removal of uses not listed in Section 101(a)(2), and Section 131.10(k) expressly states that UAAs

08/04/2015 05:01 PM EDT 2-410Chapter 2 - Comment Documents Designated Uses are not required in order to "remove a designated use that is not specified in section 101(a)(2) of the Act . . .." This is contrary to other existing EPA regulations. Since "Tier One" of the antidegradation regulations provides a "floor" of water quality protection by requiring the maintenance of existing uses, this policy basically requires that uses which were attained as of November 28, 1975 cannot be eliminated. 40 C.F.R. §§131.12(a)(1), 131.3(e), and 131.10(h)(1). Thus, EPA's regulations provide that "[w]here existing water quality standards specify designated uses less than those which are presently being attained, the State shall revise its standards to reflect the uses actually being attained." 40 C.F.R. §131.10(i). This new language in the Proposed Rule would allow states to remove designated uses for public water supplies, agriculture and industrial purposes, and navigation from their water quality standards without conducting a UAA and without protecting the highest attainable use. Under the proposed rule, if a state decides after a UAA is performed under 40 C.F.R. §131.10(g) that a CWA Section 101(a)(2) use is not attainable, it must adopt the "highest attainable use" ("HAU"). This requirement would not apply to uses that are not listed in Section 101(a)(2). The proposal is contrary to the Section 303(c)(2) of the CWA, other EPA regulations, and longstanding interpretations of the CWA set forth in EPA guidance such as the Water Quality Standards Handbook. The uses specified in CWA Section 101(a)(2) represent an interim goal for the CWA that was supposed to be achieved by 1983, and do not represent the totality of the goals for the CWA and requirements for EPA and the states. EPA should be acting to limit the circumstances under which states can remove any designated use. Designated uses are the backbone of CWA protections for human health and the environment, and should have been attained long ago. Any revisions to the UAA requirements should prevent the states from circumventing the CWA's core requirements through removal of designated uses. Instead, EPA is now proposing to remove essential CWA protections for crucial water uses like public water supply, and allow states to simply remove that use from their water quality standards for any reason, including if they just don't want to regulate pollution sources. It is difficult to imagine how EPA could reasonably propose this amendment. For example, public health is very obviously dependent on clean water for public water supplies, and these water supplies are required to be protected in water quality standards wherever attainable, yet EPA is proposing to allow states to remove this use from water quality standards without regard to any of the CWA requirements. Allowing states to remove a use like public water supply without any demonstration under 40 C.F.R. §131.10(g) or any other reasoned basis is not sound public policy, is prohibited by the CWA and EPA's other regulations, and will endanger human health and the environment. The rulemaking notice provides little in terms of justification for removal of uses not listed in CWA Section 101(a)(2) and no justification for failing to extend the HAU protections to uses not listed in CWA Section 101(a)(2). The notice indicates that EPA believes the existing requirements are somehow ambiguous. While noting that "EPA's 1998 ANPRM stated that the EPA's position, at the time, was that a UAA is not limited to actions addressed in § 131.10(j)," the rulemaking notice states that EPA simply "now believes that the better interpretation of its regulations is that the factors in 131.10(g) are only required to be considered when a state or tribe is demonstrating that a use specified in §101(a)(2) or a subcategory of such a use is not attainable through a UAA." 78 Federal Register 54,524. However, the interpretation leading to EPA's finding of ambiguity is focused solely on selected provisions of 40 C.F.R. §§ 131.3(g) and 131.10. As set forth in detail above, there is no ambiguity when the CWA, 40 C.F.R. Part 131, and EPA guidance are read together. Frankly, the fact that states should not be allowed to arbitrarily remove designated uses from their

08/04/2015 05:01 PM EDT 2-411Chapter 2 - Comment Documents Designated Uses water quality standards is apparent solely from a plain reading of CWA Section 303(c)(2). Although EPA has now decided to "focus on uses specified in § 101(a)(2)," the CWA is focused on protection of public health and welfare, which is dependent on clean water for more than fishing, wildlife and recreation. We object to the proposed amendment to the extent that it allows removal of designated uses that are not included in CWA Section 101(a)(2) without completion of a UAA under sections 131.10(g) and (j), and to the extent that it limits the requirement for adoption of the "highest attainable use" to designated uses under CWA Section 101(a)(2). We propose that the regulation be modified to address these concerns, and to clarify that if a state's existing categories do not protect a waterway's highest attainable use, then states are explicitly required to adopt a new category or subcategory of use in order to protect the highest attainable use. To address these concerns, we request that the proposed rule be modified to as follows: §131.3(m) Highest attainable use is the aquatic life, wildlife, [begin strikeout] and/or [end strikeout] recreation, [begin new text] public water supply, or other [end new text] use that is both closest to the uses specified in section [begin new text] s [end new text] 101(a)(2) [begin new text] and 303(c)(2) [end new text] of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g). § 131.10 Designation of uses. * * ** * (g) [begin strikeout] Pursuant to § 131.10(j), [end strikeout] States may designate or remove a [begin new text] designated [end new text] use or a sub-category of a use as long as the action does not remove protection for an existing use, [begin new text] as defined in §131.3 [end new text], and the State can demonstrate that attaining the use is not feasible because of one of the six factors in this paragraph. If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use and the criteria to protect that use. To meet this requirement, States may, at their discretion, utilize their current-use categories or subcategories [begin new text] as long as they are capable of protecting the highest attainable use [end new text], develop new use categories or subcategories, or adopt another use which may include a location-specific use. * * ** * (j) A State must conduct a use attainability analysis as described in § 131.3(g), and §131.10(g), whenever: (1) The State designates or has designated uses for a water body [begin strikeout] for the first time [end strikeout] that do not include the uses specified in section 101(a)(2) of the Act, or(2) The State wishes to remove a designated use that is specified in section 101(a)(2) of the Act, to remove a subcategory of such a use, or to designate a sub-category of such a use which requires criteria less stringent than previously applicable. (k) A State is not required to conduct a use attainability analysis under this regulation whenever designating uses which include those specified in section 101(a)(2) of the Act: [begin strikeout] (1) The State designates or has designated uses for a water body for the first time that include the uses specified in section 101(a)(2) of the Act, or [end strikeout]

08/04/2015 05:01 PM EDT 2-412Chapter 2 - Comment Documents Designated Uses [begin strikeout] (2) The State wishes to remove a designated use that is not specified in section 101(a)(2) of the Act, or designate a sub-category of a use specified in section 101(a)(2) of the Act which requires criteria at least as stringent as previously applicable. [end strikeout] This language will accomplish EPA's goals of clarifying the regulation and protecting HAUs, while ensuring that all attainable and existing uses continue to be protected in accordance with the requirements of the CWA. [FN1] http://water.epa.gov/scitech/swguidance/standards/handbook / Chapters 1.2 and 2.1.
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section B 5.h: Section C 5.h: Section D 5.g 

# Comment ID 0215-A1.001.007
Author Name: Callaway Casi Organization: Mobile Baykeeper [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] II. Designated Uses (78 Fed. Reg. 54,522-5) With these proposed revisions to 40 CFR §§131.1 and 131.10, EPA is proposing a radical change to long-standing interpretations of the CWA and water quality standards requirements. According to 40 CFR §131.2: A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria necessary to protect the uses. States adopt water quality standards to protect public health or welfare, enhance the quality of water and serve the purposes of the Clean Water Act (the Act). "Serve the purposes of the Act" (as defined in sections 101(a)(2) and 303(c) of the Act) means that water quality standards should, wherever attainable, provide water quality for the protection and propagation of fish, shellfish and wildlife and for recreation in and on the water and take into consideration their use and value of public water supplies, propagation of fish, shellfish, and wildlife, recreation in and on the water, and agricultural, industrial, and other purposes including navigation. [emphasis added] The CWA, EPA's implementing regulations, and EPA's Water Quality Standards Handbook have long required protection of both 101(a)(2) uses (protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water) and 303(c)(2) uses (public water supplies, propagation of fish and wildlife, recreation, agriculture and industrial

08/04/2015 05:01 PM EDT 2-413Chapter 2 - Comment Documents Designated Uses purposes, and navigation). [FN1] CWA Section 101(a)(2) provides that "it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife andprovides for recreation in and on the water be achieved by July 1, 1983." CWA Section 303(c)(2) establishes a longerterm requirement that water quality "standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation." States are required to adopt "[u]se designations consistent with the provisions of sections 101(a)(2) and 303(c)(2) of the Act." 40 CFR. §131.6 (a). Further, 40 C.F.R. § 131.10(a) similarly requires that "[e]ach State must specify appropriate water uses to be achieved and protected. The classification of the waters of the State must take into consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes including navigation." Once uses have been designated, the use cannot be removed if it is an existing use unless a use requiring more stringent criteria is added, and other designated uses cannot be removed unless the use is demonstrated not be to attainable and the requirements in 40 CFR §131.10(g) are satisfied. Section 101(a)(2) uses are presumed attainable unless a state or tribe affirmatively demonstrates through a UAA that 101(a)(2) uses are not attainable as provided by one of six regulatory factors at Section 131.10(g). All uses are deemed to be "attainable, at a minimum, if the uses can be achieved (1) when effluent limitations under section 301(b)(1)(A) and (B) and section 306 are imposed on point source dischargers, and (2) when cost-effective and reasonable best management practices are imposed on nonpoint source dischargers." 40 CFR § 131.10(d). Under the existing 40 CFR §131.10(j), states "must conduct a use attainability analysis ["UAA"]. . .whenever: (1) the State designates or has designated uses that do not include the uses specified in section 101(a)(2) of the Act; or (2) the State wishes to remove a designated use that is specified in section 101(a)(2) of the Act or adopt subcategories of uses specified in section 101(a)(2) that require less stringent criteria." [emphasis added]. A UAA is "a structured scientific assessment of the factors affecting the attainment of the use which may include physical, chemical, biological, and economic factors as described in § 131.10(g)." 40 CFR §131.3(g). The only existing exception to the UAA requirement is for designation of 101(a)(2) uses. 40 CFR §131.10(k). In sum, designated uses, such as public water supply, recreation, and fish and wildlife propagation, are essential components of water quality standards. Wherever attainable, the water quality standards must provide water quality protection for all of the uses listed in 40 CFR §131.2. Once a use of a waterbody has been designated, states develop criteria to protect those uses, which then serve as the fundamental basis for protecting, maintaining and improving state water quality under the CWA. These designated uses cannot be removed from the states' water quality standards except in limited circumstances set forth in the existing EPA water quality regulations, including the requirements for UAAs. For example, states may not remove any designated use without conducting the analysis described in 40 C.F.R. § 131.10(g). While it is not apparent from the rulemaking notice, the current proposal amends existing regulations in 40 CFR §§131.3 and 131.10 in a manner that limits the requirements for removal of designated uses, even existing uses, to only uses specified in CWA Section 101(a)(2). The Proposed Rule does this by limiting the application of Section 131.10(g) to actions requiring a UAA in the revised Section 131.10(j). The revised Section 131.10(j) deletes the language requiring UAAs for removal of uses not listed in Section 101(a)(2), and Section 131.10(k) expressly states that UAAs

08/04/2015 05:01 PM EDT 2-414Chapter 2 - Comment Documents Designated Uses are not required in order to "remove a designated use that is not specified in section 101(a)(2) of the Act . . .." This is contrary to other existing EPA regulations. Since "Tier One" of the antidegradation regulations provides a "floor" of water quality protection by requiring the maintenance of existing uses, this policy basically requires that uses which were attained as of November 28, 1975 cannot be eliminated. 40 CFR §§131.12(a)(1), 131.3(e), and 131.10(h)(1). Thus, EPA's regulations provide that "[w]here existing water quality standards specify designated uses less than those which are presently being attained, the State shall revise its standards to reflect the uses actually being attained." 40 CFR §131.10(i). This new language in the Proposed Rule would allow states to remove designated uses for public water supplies, agriculture and industrial purposes, and navigation from their water quality standards without conducting a UAA and without protecting the highest attainable use. Under the proposed rule, if a state decides after a UAA is performed under 40 CFR §131.10(g) that a CWA Section 101(a)(2) use is not attainable, it must adopt the "highest attainable use" ("HAU"). This requirement would not apply to uses that are not listed in Section 101(a)(2). The proposal is contrary to the Section 303(c)(2) of the CWA, other EPA regulations, and long-standing interpretations of the CWA set forth in EPA guidance such as the Water Quality Standards Handbook. The uses specified in CWA Section 101(a)(2) represent an interim goal for the CWA that was supposed to be achieved by 1983, and do not represent the totality of the goals for the CWA and requirements for EPA and the states. EPA should be acting to limit the circumstances under which states can remove any designated use. Designated uses are the backbone of CWA protections for human health and the environment, and should have been attained long ago. Any revisions to the UAA requirements should prevent the states from circumventing the CWA's core requirements through removal of designated uses. Instead, EPA is now proposing to remove essential CWA protections for crucial water uses like public water supply, and allow states to simply remove that use from their water quality standards for any reason, including if they just don't want to regulate pollution sources. It is difficult to imagine how EPA could reasonably propose this amendment. For example, public health is very obviously dependent on clean water for public water supplies, and these water supplies are required to be protected in water quality standards wherever attainable, yet EPA is proposing to allow states to remove this use from water quality standards without regard to any of the CWA requirements. Allowing states to remove a use like public water supply without any demonstration under 40 C.F.R. §131.10(g) or any other reasoned basis is not sound public policy, is prohibited by the CWA and EPA's other regulations, and will endanger human health and the environment. The rulemaking notice provides little in terms of justification for removal of uses not listed in CWA Section 101(a)(2) and no justification for failing to extend the HAU protections to uses not listed in CWA Section 101(a)(2). The notice indicates that it believes the existing requirements are somehow ambiguous. While noting that "EPA's 1998 ANPRM stated that the EPA's position, at the time, was that a UAA is not limited to actions addressed in § 131.10(j)," the rulemaking notice states that EPA simply "now believes that the better interpretation of its regulations is that the factors in 131.10(g) are only required to be considered when a state or tribe is demonstrating that a use specified in §101(a)(2) or a subcategory of such a use is not attainable through a UAA." 78 Federal Register 54,524. However, the interpretation leading to EPA's finding of ambiguity is focused solely on selected provisions of 40 CFR §§ 131.3(g) and 131.10. As set forth in detail above, there is no ambiguity when the CWA, 40 C.F.R. Part 131, and EPA guidance are read together. Frankly, the fact that states should not be allowed to arbitrarily remove designated uses from their water

08/04/2015 05:01 PM EDT 2-415Chapter 2 - Comment Documents Designated Uses quality standards is apparent solely from a plain reading of CWA Section 303(c)(2). Although EPA has now decided to "focus on uses specified in § 101(a)(2)," the CWA is focused on protection of public health and welfare, which is dependent on clean water for more than fishing, wildlife and recreation. We object to the proposed amendment to the extent that it allows removal of designated uses that are not included in CWA Section 101(a)(2) without completion of a UAA under sections 131.10(g) and (j), and to the extent that it limits the requirement for adoption of the "highest attainable use" to designated uses under CWA Section 101(a)(2). We propose that the regulation be modified to address these concerns, and to clarify that if a state's existing categories do not protect a waterway's highest attainable use, then states are explicitly required to adopt a new category or subcategory of use in order to protect the highest attainable use. To address these concerns, we request that the proposed rule be modified to as follows: §131.3(m) Highest attainable use is the aquatic life, wildlife, [begin strikeout] and/or [end strikeout] recreation, [begin new text] public water supply, or other [end new text] use that is both closest to the uses specified in section [begin new text] s [end new text] 101(a)(2) [begin new text] and 303(c)(2) [end new text] of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g). § 131.10 Designation of uses. * * ** * (g) [begin strikeout] Pursuant to § 131.10(j), [end strikeout] States may designate or remove a [begin new text] designated [end new text] use or a sub-category of a use as long as the action does not remove protection for an existing use, [begin new text] as defined in §131.3 [end new text] , and the State can demonstrate that attaining the use is not feasible because of one of the six factors in this paragraph. If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use and the criteria to protect that use. To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories [begin new text] as long as they are capable of protecting the highest attainable use [end new text] , develop new use categories or subcategories, or adopt another use which may include a location-specific use. * * ** * (j)A State must conduct a use attainability analysis as described in § 131.3(g), and §131.10(g), whenever: (1)The State designates or has designated uses for a water body [begin strikeout] for the first time [end strikeout] that do not include the uses specified in section 101(a)(2) of the Act, or(2) The State wishes to remove a designated use that is specified in section 101(a)(2) of the Act, to remove a subcategory of such a use, or to designate a sub-category of such a use which requires criteria less stringent than previously applicable. (k)A State is not required to conduct a use attainability analysis under this regulation whenever designating uses which include those specified in section 101(a)(2) of the Act: [begin strikeout] (1) The State designates or has designated uses for a water body for the first time that include the uses specified in section 101(a)(2) of the Act, or [end strikeout] [begin strikeout] (2) The State wishes to remove a designated use that is not specified in section 101(a)(2) of the Act, or

08/04/2015 05:01 PM EDT 2-416Chapter 2 - Comment Documents Designated Uses designate a sub-category of a use specified in section 101(a)(2) of the Act which requires criteria at least as stringent as previously applicable. [end strikeout] This language will accomplish EPA's goals of clarifying the regulation and protecting HAUs, while ensuring that all attainable and existing uses continue to be protected in accordance with the requirements of the CWA. [FN1] http://water.epa.gov/scitech/swguidance/standards/handbook / Chapters 1.2 and 2.1.
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section B 5.h: Section C 5.h: Section D 5.g 

# Comment ID 0222-A1.001.012
Author Name: Modeer David Organization: Western Urban Water Coalition 3. The Final Rule should clarify whether a state or tribe is free to remove a drinking water use or an agricultural use without resorting to a UAA. These are NOT 101(a)(2) uses. We recommend that EPA make clear that a drinking water use or agricultural use may be removed without the requirement for a UAA.
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section D 

# Comment ID 0228-A2.001.008
Author Name: Conn Rachel Organization: Amigos Bravos Designated Uses

08/04/2015 05:01 PM EDT 2-417Chapter 2 - Comment Documents Designated Uses While we are generally supportive of EPA's efforts to protect the highest attainable use, EPA's proposal is too narrow in its focus on the 101(a)(2) uses (aquatic life and recreation uses). Other uses are deserving of UAA protection and removal of them would most likely would result in lowering of water quality that would have an impact on 101(a)(2) uses. New Mexico, when making UAA decisions focuses almost entirely on the hydrology of a stream. The UAA process outlined by the state depends almost entirely on the NM Hydrology Protocol (NM HP). A major flaw with the NM HP is that it confuses determination of the hydrological status of a stream (perennial, intermittent or ephemeral) with 101(a)(2) uses. This confusion is demonstrated in the language of the HP itself. For example, the first sentence in the summary of the HP states, "The Hydrology Protocol provides a methodology for distinguishing among ephemeral, intermittent and perennial streams and rivers in New Mexico". However, the first line of the second paragraph of the summary states, "The Hydrology Protocol was specifically developed to generate documentation of the uses supported by the hydrology of a given stream or river." While the HP does a fair job with directing the gathering of data to help determine whether a stream is ephemeral, intermittent or perennial, the HP makes broad determinations about 101(a)(2) uses and even whether these uses can be supported, without any data. The HP does not direct gathering data that would allow determinations regarding 101(a)(2) uses. The NM HP very clearly outlines a process for determining only the physical characteristics of a stream, not to determine whether the stream can attain existing uses. Amigos Bravos is very concerned about the explicit and implicit assumption made in both the NM HP and the associated Expedited UAA Sheet that if a stream is identified as being ephemeral that it then therefore does not support 101(a)(2) uses. The NM HP and the Expedited UAA Sheet both refer to 40 CFR 131.10(g)(2) as a justification for this assumption. Yet 40 CFR 131.10(g)(2) simply states that uses can be removed if the State can demonstrate that "attaining the designated use is not feasible because natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use." Clearly the regulations are not stating that 101(a)(2) uses cannot be met in ephemeral, intermittent, or low flow conditions, rather the regulations are stating that various low flow conditions could be a cause of non attainment of 101(a)(2) uses.

Response For response to this comment, see the following response essay(s): 5.h 5.h: Section E 

# Comment ID 0230-A1.001.009
Author Name: Ettinger Albert Organization: One of the counsel for the Environmental Law and Policy Center et al. More critically, under the proposed rule a state potentially could remove a use designation unrelated to fish, shellfish or recreation (e.g. use as a drinking water source) without any requirement to perform a UAA. There is no apparent legal basis for limiting the need for proof that a use is not attainable to CWA Section 101(a)(2) uses. The portion of the Act that actually requires states to adopt and revise standards, Section 303(c)(2)(A), does not limit its scope to 101(a)(2) but explicitly states that states shall take into consideration "public water supplies, propagation of fish and wildlife,

08/04/2015 05:01 PM EDT 2-418Chapter 2 - Comment Documents Designated Uses recreational purposes, and agricultural, industrial and other purposes ..." 33 USC §1313(c)(2)(A).
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section B 5.h: Section D 

# Comment ID 0231-A2.001.016
Author Name: Sanderson Stuart Organization: The Colorado Mining Association It is also worth pointing out that overall, the concept of HAU as described in the preamble to address individual uses and parameters seems to override the classification of waterbodies on the 303(d) list that are "impaired."
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section C 

# Comment ID 0234-A2.001.021
Author Name: Andes Fredric Organization: Federal Water Quality Coalition We agree with EPA's proposal to clarify that a use that is not specified in §101(a)(2) may be removed without a UAA.
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section A 

# Comment ID 0252-A2.001.016

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Author Name: Fry Eric Organization: Peabody Energy It is also worth pointing out that overall, the concept of HAU as described in the preamble to address individual uses and parameters seems to override the classification of waterbodies on the 303(d) list that are "impaired."
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section C 

# Comment ID 0260-A2.001.003
Author Name: Drazowski Barry Organization: Izaak Walton League Minnesota Division et al. A. EPA Must Not Allow States to Remove Standards without Demonstrating that Attaining the Standards Is Not Feasible. EPA proposes in its new section 40 C.F.R. §131.14 to eliminate the requirement that a state demonstrate that compliance with water quality standards is not feasible pursuant to 40 C.F.R. §131.10(g) if the water quality standard has been promulgated in a section of state rules that does not explicitly pertain to Clean Water Act Section 101(a)(2) uses. This part of EPA's proposal is a very significant weakening of Clean Water Act requirements that will have serious impacts on fish, aquatic plants and wildlife. Although many states have in place standards that limit chlorides, sulfates, hardness, specific conductance or total dissolved salts under rules that pertain to designated uses for agriculture or industry, virtually no states have adopted such standards in sections of the rules that explicitly pertain to section 101(a)(2) uses. In Minnesota and in many other states, water quality standards for non-101(a)(2) designated uses may provide the only clear limitation on discharge that impacts fish, aquatic plants and wildlife. EPA research in Eastern States where coal mining is prevalent has confirmed that concentrations of specific conductance and other parameters can cause severe aquatic life impacts. Preliminary data in Minnesota correlates aquatic life impairments with high concentrations of these parameters. Mining companies in Minnesota and in other states have sought and will continue to seek variances to exempt their discharge from compliance with these standards. EPA's removal of the 40 C.F.R. §131.10(g) feasibility factors for non-101(a)(2) designated uses could be interpreted to allow a state to grant a variance or weaken a standard even if the WQS limits parameters that are known to cause toxicity and even if compliance with the standard is feasible. Minnesota Clean Water Groups are also concerned about the effect of removing the section 40 C.F.R. §131.10(g) factors for standards that protect drinking water, which is also not a 101(a)(2) use. If state water quality standards for toxic pollutants were set to protect public health, rather than to protect fish, states would have the discretion to change

08/04/2015 05:01 PM EDT 2-420Chapter 2 - Comment Documents Designated Uses them or to allow discharges exceeding those WQS without even requiring proof that compliance would not be feasible.
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section B 5.h: Section E 

# Comment ID 0260-A2.001.005
Author Name: Drazowski Barry Organization: Izaak Walton League Minnesota Division et al. At a minimum, we believe that EPA's proposed rule must be revised to maintain the non-101(a)(2) designated use water quality standards that in our imperfect world actually protect wild rice, fish, aquatic life, wildlife and human health. EPA should only allow states to consider variances for a non-101(a)(2) designated use without meeting the 40 C.F.R. §131.10(g) and 40 C.F.R. §131.10(j) requirements if the discharge that would be allowed by removing or by allowing a variance from the standard is proved to have no potential effect on fish, aquatic life, wildlife or human health. The burden of proof must continue to rest on any state proposing to weaken water quality standards.
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section E 8.g.iv 

# Comment ID 0262-A2.001.014
Author Name: Rawlings Laurent Organization: Home Builders Association of Kentucky Also worthy of note, overall, the concept of HAU as described in the preamble to address individual uses and parameters seems to override the classification of waterbodies on the 303(d) list that are "impaired."
Response For response to this comment, see the following response essay(s):

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5.h 5.h: Section C 

# Comment ID 0272-A2.001.011
Author Name: Jennifer Chavez Janette Brimmer Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 B. When UAA is Not Required. EPA proposes to "clarify" that the UAA requirements do not apply to uses that do not fall within Clean Water Act 101(a)(2) goals - "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." 78 Fed. Reg. at 54,524-25. This part of EPA's proposed rule is a clear step backward and a plain weakening of Clean Water Act requirements. EPA's proposed "clarification" would mean, for example, that a state choosing to lessen protections for a water body that had been designated a drinking water source, does not have to perform a UAA in order to lessen protections for the drinking water use (because drinking water is not a 101(a)(2) "fishable/swimmable" use.) Currently, the rules expressly state that a UAA is required for uses listed in 101(a)(2), but they do not excuse a state from doing a UAA for removing other uses. 40 C.F.R. § 131.10(j). By explicitly exempting the downgrading of other uses from the need for a UAA, EPA is weakening the existing rule. The Water Protection Groups question the necessity of the proposed rule and are concerned about what protections will be weakened for drinking water (or other non- 101(a)(2) uses) by the explicit exemption. At a minimum, EPA should explain how uses that are not described in section 101(a)(2) of the Act will remain fully protected under the proposed rule change.
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section B 

# Comment ID 0274-A2.001.004
Author Name: Yeaton Violet Organization: Region 10 Regional Tribal Operations Committee 2. Designated Uses The Proposed Rule would amend existing EPA regulations to delete the limitations on removal of designated uses, even existing uses, to only uses specified in Clean Water Act § 101(a)(2). This would allow removal of designated uses for public water supplies, agriculture and industrial purposes, and navigation from their water quality standards without

08/04/2015 05:01 PM EDT 2-422Chapter 2 - Comment Documents Designated Uses conducting a Use Attainability Analysis ("UAA") and without protecting the highest attainable use.
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section B 5.h: Section C 

# Comment ID 0280-A2.001.006
Author Name: Aspatore Amanda Organization: National Mining Association NMA does, however, support EPA's proposal to clarify that a use not specified in Sec. 101(a)(2) may be removed without a UAA, but suggests that additional language be added requiring that, whenever a state amends a WQS based on Sec. 101(a)(2), a UAA must be performed to ensure the attainability of the use. Furthermore, EPA should not require states to look at future attainable uses based on aspects such as the potential effectiveness of best management practices. Again, rather than provide clarity, such proposed language merely increases uncertainty and paves the way for unnecessary litigation.
Response For response to this comment, see the following response essay(s): 5.h 5.h: Section A 5.h: Section D 5.h: Section E 

# Comment ID 0283-A1.001.007
Author Name: Thorme Melissa Organization: Downey Brand Attorneys LLP on behalf of several clients We greatly appreciate the clarification that UAAs need not be performed for removing uses not set forth in CWA section 101 (e.g., uses not related to aquatic life or recreation). This is contrary to what EPA Region IX has required in the past, and which created a great deal of work and wasted limited financial resources removing uses that were never mandated under federal law, such as municipal drinking water uses.

08/04/2015 05:01 PM EDT 2-423Chapter 2 - Comment Documents Designated Uses Response For response to this comment, see the following response essay(s): 5.h 5.h: Section A 5.h: Section B 

# 5.I - DESIGNATED USES: EPA’S REGULATIONS AND REBUTTING THE PRESUMPTION OF ATTAINABILITY Comment ID 0123-A1.001.007
Author Name: Chin Ryan Organization: NA Since WQS regulation state requirements that WQS protect uses specified in section 101 (a) (2) of the Act unless these uses are shown to be unattainable, creates a presumption of attainability. Given the overall objective of the CWA is to restore and maintain the waters of the nation, and to achieve the purpose that waters be able to be used in its highest and most beneficial way, the rebuttable presumption expresses that the goal for all waters are to be presumed attainable for those highest uses, unless it can be demonstrated that the uses are not attainable through a UAA. Response For response to this comment, see the following response essay(s): 5.i 

# Comment ID 0123-A1.001.008
Author Name: Chin Ryan Organization: NA The proposal provides states and tribes cannot remove a designated use if it would also therefore remove an existing use, unless a use that is higher (and therefore requires more stringent criteria) is added, and defines existing use as a use that was attained on or after November 28, 1975, and attained being defined as both the use and the water quality necessary to support the use has been achieved. This proposal would thus not allow states and tribes to lower the use of a water body unless it was reasonably justified in doing so, and allowing for an exception that the states and tribes have discretion to determine whether an existing use has been detained if there is no sufficient information or data available. This reinforces the objective of the CWA to achieve the highest use and to not allow further pollution and thereby maintaining the quality. Further, the proposal states its intent is to further the objective of CWA section 101 (a), and therefore allows that the prohibition on removing existing use is not intended to apply to a situation where the state or tribe wishes to remove a use where removal would result in improving the condition of a water body, allowing that

08/04/2015 05:01 PM EDT 2-424Chapter 2 - Comment Documents Designated Uses while the proposal does not unnecessarily bind states or tribes from furthering the objective to restore and maintain the nation's waters.
Response For response to this comment, see the following response essay(s): 5.i 

# Comment ID 0156-A1.001.004
Author Name: Jackie Kepke Adam Link Organization: California Association of Sanitation Agencies and Tri-TAC It is important to emphasize that the rebuttable presumption of fishable/swimmable designated uses currently provided for in the CWA does not restrict the discretion that states have to determine whether fishable/swimmable uses or subcategories of these uses are not, in fact, attainable in a particular case.
Response For response to this comment, see the following response essay(s): 5.i 

# Comment ID 0157-A1.001.013
Author Name: Harpole Chad Organization: Kentucky Chamber of Commerce Finally, in the preamble to the Proposed Rule at page 54522, EPA states that it interprets the national goal in Section 101(a)(2) of the Act of the attainment and protection of fishable/swimmable uses in all waters as establishing a presumption that such uses are attainable unless demonstrated otherwise through a UAA. The plain language of Section 101(a)(2) of the Act, however, states that the national goal is to be achieved "wherever attainable." Therefore, Section 101(a)(2) does not suggest in any way that the attainability of all uses must be presumed. The Chamber's concern is such an interpretation and presumption would necessarily raise the bar on demonstrating through a UAA that a particular use is not attainable. This is further complicated by the fact that many states, such as Kentucky, designated all waters as fishable/swimmable without first evaluating whether all such uses exist or the water quality necessary to support such uses. Accordingly, the Chamber requests that EPA clarify that in conducting a UAA a state will not be faced with an additional burden of a presumption that the use to be removed is attainable.
Response

08/04/2015 05:01 PM EDT 2-425Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.i 

# Comment ID 0168-A1.001.004
Author Name: Walker Roger Organization: Regulatory Environmental Group for Missouri 2. Rebuttable Presumption. For the first time in the more than 40-year history of the Clean Water Act (CWA) and its implementing regulations, EPA is proposing to create by rule a "rebuttable presumption" that all waters of the United States are presumed to be "fishable and swimmable" (currently only a "goal" of the CWA) unless proven otherwise by performing an extensive scientific investigation called a Use Attainability Analysis. EPA's attempt to re-write the CWA under the guise of "clarifying" regulations borders on duplicitous and clearly runs afoul of the plain language of the CWA. The CWA specifically used the word "goal" and the phrase "wherever attainable" to qualify the designated uses supportable under section 101(a)(2). EPA's attempt to codify a "rebuttable presumption" of attainability ignores the clear and unambiguous language of the CWA. Simply put, EPA was not afforded congressional deference in this matter nor allowed to either "clarify" or "gap-fill" such vast changes to the very core of the CWA . If Congress had intended to create a "rebuttable presumption," it would have been easy to do. Instead, the CWA allows States to make these determinations on the basis of site-specific information including the water body's ability to be so designated. Furthermore, had Congress believed in 1972 that all waters were "fishable and swimmable" unless proven otherwise, the very first round of State water designations, which were due 180 days after passage of the 1972 Act, would have been classified as "fishable and swimmable," [or] been required to undergo further assessment to prove that they were not. [FN1] Then, had a State failed to designate a particular water body as "fishable and swimmable," or prove that it should not be so classified, the EPA would have been required to make the designation itself. [FN2] This was never done, of course, because EPA had no such authority under the CWA and still does not. To assume such authority is not only outside the scope of the CWA but violates the principles of federalism imbedded in the CWA that continues to empower the individual States and Tribes to make all use designations for their waters. [FN3] Recommendation: The proposed requirement to adopt a "rebuttable presumption" should not be incorporated into the Final Rule. [FN1] CWA section 303(a)(3)(A) [FN2] CWA section 303(a)(3)(C) [FN3] CWA section 303(c)(2)(A)

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Response For response to this comment, see the following response essay(s): 5.i 

# Comment ID 0171-A2.001.010
Author Name: Borkowski Winston Organization: Hopping Green & Sams on behalf of CF Industries, Inc. EPA's presumption of attainability has always been difficult to overcome and will be even more so should the proposed amendments become final, frustrating any effort on behalf of EPA to work "together with our state and tribal partners to make the UAA process operate more effectively."
Response For response to this comment, see the following response essay(s): 5.i 

# Comment ID 0173-A1.001.010
Author Name: Borkowski Winston Organization: Hopping Green & Sams on behalf of CF Industries, Inc. EPA's presumption of attainability has always been difficult to overcome and will be even more so should the proposed amendments become final, frustrating any effort on behalf of EPA to work "together with our state and tribal partners to make the UAA process operate more effectively."
Response For response to this comment, see the following response essay(s): 5.i 

# Comment ID 0182-A2.001.005
Author Name: Hahn Martha

08/04/2015 05:01 PM EDT 2-427Chapter 2 - Comment Documents Designated Uses Organization: The Colorado Wastewater Utility Council Use Attainability Analysis - §131.10(j)(2): With increasingly restrictive water quality standards being adopted nationwide, it is inappropriate to assume that § 101(a)(2) uses are always attainable, i.e., even with zero discharges from regulated point sources and implementation of nonpoint best management practices, an underlying water quality standard may not be achievable in a water body or watershed. As such, we recommend that an attainability demonstration be conducted before any § 101(a)(2) uses and associated water quality standards are adopted. In addition, such an analysis would be beneficial before a Total Maximum Daily Load (TMDL) is developed to make certain that a proposed water quality goal is actually attainable, thus ensuring that scarce state resources are spent wisely.
Response For response to this comment, see the following response essay(s): 5.i 5.j 

# Comment ID 0196-A1.001.007
Author Name: Bostic Jason Organization: West Virginia Coal Association WVCA also objects to EPA's codification of its presumption that the goals reflected in Sec. 101(a) of waters being "fishable, swimmable" are attainable unless otherwise demonstrated. Under the CWA, use designations are clearly within the purview of the states, which reflects the Congressional recognition that states are in the best position to make decisions about local waterways. By forcing states to prove a negative in the context of designated uses, EPA is placing a tremendous burden on state resources and is creating a de facto "all uses" designation for all state waters unless states - or individual companies - can come up with the resources necessary to complete a UAA and prove the best designated use. This policy, which EPA now seeks to codify, has led to states adopting standards, total maximum daily loads (TMDLs) and permit limits based on a wrongful presumption, for waters that have no capability of meeting a fishable/swimmable use. Importantly, such an outcome contradicts the plain language of Sec. 101(a)(2) of the CWA, which states that "wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish...and provides for recreation...[shall be achieved]" (emphasis added). EPA should therefore delete this inappropriate presumption from its proposal, and instead require a UAA before a Sec. 101(a)(2) use is adopted.
Response For response to this comment, see the following response essay(s): 5.i 5.j

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# Comment ID 0201-A1.001.010
Author Name: Godfrey Mike Organization: Alabama Power II. Designated Uses Section 101(a)(2) of the CWA sets the ambitious national goal that water quality provide for the protection and propagation of fish, shellfish, and wildlife and provide for recreation in and on the water be achieved whenever possible. See 33 U.S.C. § 1251(a)(2). To achieve this goal, Congress enacted Section 303 of the CWA, which obligates States to designate uses for each of the waters within their territorial jurisdiction and secondly set criteria that protect those uses. See 33 U.S.C. § 1313. "Designated uses" are defined in 40 C.F.R. § 131.3(f) as the "uses specified in water quality standards for each water body or segment whether or not they are being attained" and are to be established by taking into consideration the use and value of the waters for public water supplies, propagation of fish and wildlife, recreation, agricultural uses, industrial uses, navigation, and other purposes. See 33 U.S.C. § 1313(c)(2)(A). In the Draft Rule, EPA has proposed a number of suggested changes and/or clarifications to 40 C.F.R. Part 131 relating to designated uses. The most significant of these changes is the agency's intent to codify the supposedly existing EPA policy that designated uses reflecting the goals of Section 101(a)(2) of the CWA (i.e. "fishable and swimmable" uses) are presumed to be attainable unless otherwise demonstrated. For those waters of the United States that do not and cannot achieve this designated use, EPA proposes to require States to undertake a use attainability analysis ("UAA") before they may permissibly designate a lesser use for a given water body. Furthermore, for any such water of the United States designated with a lesser use, EPA is proposing to require States to adopt the highest attainable use ("HAU") (i.e. that use that is both attainable and closest to the uses specified in Section 101(a)(2) of the CWA) for that water body. As set out below, Alabama Power takes issue with EPA's proposed "rebuttable presumption" for designated use determinations for a number of reasons. EPA should have discussed more thoroughly in the Draft Rule its perceived legal authority for establishing this presumption.[FN2] Its failure to do so is telling. EPA's proposed rebuttable presumption is based on Congress' pronouncement that all waters of the Unites States shall be fishable and swimmable wherever attainable, which is merely an aspirational "goal", not a requirement or even a policy requiring more immediate adherence. See 33 U.S.C. § 1251(a)(2). The legislative history of the CWA illustrates that Congress instance, in discussing the national goal enumerated in Section 101(a)(1) that all discharges to the waters of the United States be eliminated by 1985, Senator Buckley stated: [In establishing the 1985 goal], we would not be legislating an absolute requirement to be fully implemented as of a magic date but, rather, that we could be providing, in the language of the report, "the direction and the mandate to direct research efforts toward the development of the technology to apply to the achievement of a no-discharge standard." ... [This] will have the effect of placing the word "1985" in its proper focus as defining a goal, an ideal, but not legislating an end. Senate Comm. on Pub. Works, 93rd Cong., 1st Sess., A Legislative History of the Water Pollution Control Act

08/04/2015 05:01 PM EDT 2-429Chapter 2 - Comment Documents Designated Uses Amendments of 1972, 1300 (Comm. Print 1973) (Leg. Hist.). Unlike Congress, agencies cannot morph a goal into a factual presumption to advance a policy initiative. Instead, agencies may only establish such a presumption when they can adequately demonstrate that there is a sound and rational connection between the proved and inferred facts. See NLRB v. Baptist Hosp., Inc., 442 U.S. 773, 787 (1979); United Scenic Artists, Local 829 v. NLRB, 762 F.3d 1027, 1034 (D.C. Cir. 1985); Atchison, Topeka & Santa Fe Ry. Co. v. ICC, 580 F.2d 623, 629 (D.C. Cir. 1978). A presumption is only appropriate where "proof of one fact renders the existence of another fact ‘so probable that it is sensible and timesaving to assume the truth of [the inferred] fact ... until the adversary disproves it.'" NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 788, 89 (1990). See Chemical Mfrs. Assn. v. Department of Transp., 105 F.3d 702 (D.C. Cir. 1997); cf. American Min. Congress v. U.S. Army Corps of Engineers, 951 F. Supp. 267 (D.C. 1997) (striking down Tullock rule, which created a rebuttable presumption that the Corps had jurisdiction); National Mining Ass'n v. Babbitt, 172 F.3d 906 (D.C. Cir. 1999) (striking down rebuttable presumption because agency did not explain factual basis). Here, EPA has not (and indeed cannot) demonstrate that Congress' stated goal clearly infers that most waters of the United States have achieved a fishable and swimmable designated use. The sheer number of total maximum daily loads ("TMDLs") currently in effect or being developed throughout the country undermines this proposed presumption and renders it flawed and improper. EPA's proposed rebuttable presumption is also contradictory to other provisions of the CWA. Section 303(c)(2)(A) of the CWA empowers States-not EPA-to evaluate the "use and value" of each of its waters in designating their respective uses. See 33. U.S.C. § 1313(c)(2)(A). Congress delegated this primary power to the States because it recognized that they are in the best position to make these decisions for water bodies within their territorial jurisdiction. See 33 U.S.C. § 1313. To effectively do so, States must be afforded flexibility and discretion to weigh a number of competing interests or concerns that inform which designated use is the correct one under the circumstances. The rebuttable presumption advanced by EPA in the Draft Rule would effectivelysupplant the role of States that Congress intended in this designation process and, in its place, permit EPA to mandate default designation procedures based on an abstract "goal" of the CWA that is simply not attainable or realistic for a number of waters of the United States. EPA should not use a "goal" of the CWA to override other, more precise, provisions of the Act. Courts that have considered this issue agree: [A]s any student of the legislative process soon learns, it is one thing for Congress to announce a grand goal, and quite another for it to mandate full implementation of that goal. Read as a whole the Clean Water Act shows not only Congress' determined effort to clean up our polluted lakes and rivers, but also its practical recognition of the economic, technological, and political limits on total elimination of all pollution from all sources. . . . Caution is always advisable in relying on a general declaration of purpose to alter the apparent meaning of a specific provision. National Wildlife Federation v. Gorsuch, 693 F.2d 156, 178 (D.C. Cir. 1982) (also noting that Congress hedged the purposes section of the CWA by making it apply only as "consistent with the provisions of this [Act]."). That EPA is proposing to no longer require States to objectively justify an upgrade to a designated use is proof positive that EPA's proposed revisions to the regulations will, in effect, render meaningless any evaluation by the States of the actual realistic use and value of a water body. In place of this evaluation, EPA is, by and through the Draft Rule,

08/04/2015 05:01 PM EDT 2-430Chapter 2 - Comment Documents Designated Uses encouraging States to arbitrarily inflate the achievable designated uses for water bodies without regard for whether the designated use is attainable or even advisable. It is simply improper for EPA to attempt to convert a "goal" set out by Congress in the CWA into a "rebuttable presumption" as a mean to an end, especially when doing so undercuts the power and flexibility Congress specifically delegated to States to consider the use and value of a water body before designating its realistic and best use classification. A presumption of this kind, if promulgated, would place a significant additional burden on States by requiring them to undertake a costly and time-consuming UAA every time they sought to designate a use other than the uses specified in Section 101(a)(2). With already scarce resources and depleted budgets, many States would likely be forced to forego UAAs for many waters of the United States and live with the consequences.[FN3] These consequences would likely include many States being forced to establish excessively stringent WQS, along with TMDLs and NPDES permit limits based on these standards, as well as dedicating significant dollars and resources to try to meet the standards, despite the fact that these waters can never and will never meet the uses specified in Section 101(a)(2). These consequences, in turn, would also adversely impact NPDES permit holders, such as Alabama Power, who would be forced to attempt to comply with overly burdensome WQS. The overly stringent WQS and associated effluent limitations could stifle economic growth, as well, because companies seeking to construct new facilities will likely look to locate in other States that could better afford undertaking UAAs in order to promulgate more reasonable and achievable discharge limitations.
[FN2] The agency's cursory reference to the Idaho Mining Association, Inc. v. Browner opinion in the Draft Rule is insufficient. See 90 F. Supp. 2d 1078 (D. Idaho 2000). Alabama Power believes that case was wrongly decided inasmuch as the court side-stepped imperative questions as to the rebuttable presumption advanced by EPA by simply yielding to EPA's interpretations of the CWA, pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Furthermore, even if the Idaho Mining case was correctly decided, that decision does not contemplate or support the blanket application of a rebuttable presumption to all waters of the United States, as EPA is attempting to promulgate through this rulemaking. See Associated Indus. of Alabama v. Train, 9 ERC 1561 (N.D. Ala. 1976) (rejecting EPA's attempt to impose a blanket "fish and wildlife" use on Alabama's waters). The court in the Idaho Mining case held only that the rebuttable presumption advanced by EPA was a permissible interpretation of EPA's regulations in that instance. The primary question left unresolved by this decision is, if Congress did in fact intend for such a blanket presumption to exist for all waters of the United States, why did it not explicitly set it out in the CWA. The Idaho Mining court acknowledged this void. Idaho Mining., 90 F. Supp. 2d at 1088 (providing that "the CWA does not itself create a rebuttable presumption that [fishable and swimmable] uses are always attainable"). The fact is, Congress did not have this intention at the time the relevant provisions of the CWA were enacted. Instead, as explained herein, infra, Congress vested States with the primary authority to select appropriate designated uses, and EPA's proposed rebuttable presumption improperly commandeers that authority. [FN3] Requiring States to still adopt HAUs even if they are successful in rebutting EPA's proposed presumption would further deter States from engaging in this process. EPA specifically states in the Draft Rule that its proposed HAU requirement will not affect States' discretion or flexibility to designate, revise and manage uses or the specificity of those uses. However, the proposed HAU standard has the potential to severely restrict States' evaluations of the uses and values of the various water bodies under their jurisdiction and to increase the time and effort States must dedicate to each water body to assess its precise designated use based on the analyses the agency has proposed as a part of this review. States cannot thoroughly consider the use and value of a water body if they are obligated to set all uses at fishable and swimmable unless they can prove nonattainability. Furthermore, EPA's recommendation that, prior to

08/04/2015 05:01 PM EDT 2-431Chapter 2 - Comment Documents Designated Uses downgrading the use of a water body, States generate subcategories within the fishable and swimmable use category foreshadows the amount of meddling EPA will attempt to engage in to persuade States to adopt designated uses that are not attainable and in some cases not necessary to adequately protect water quality if this HAU standard is promulgated.
Response For response to this comment, see the following response essay(s): 5.i 5.c 5.k 12.a 

# Comment ID 0203-A1.001.005
Author Name: Christman Jim Organization: Hunton & Williams on behalf of Utility Water Act Group III. Designated Uses A. Presumption of Attainability EPA says it already has created a "rebuttable presumption" that all waters are potentially "fishable" or "swimmable." See 78 Fed. Reg. 54,522 col. 2. EPA believes the rebuttable presumption follows from the statutory "goal" of fishable, swimmable waters. The presumption of attainability of fishable or swimmable uses in all waters was created in 1983 (as a new § 131.10(j)) with no notice and no real justification. It was not offered for public comment. It was a change from the regulation proposed in 1982 (47 Fed. Reg. 49,234 (Oct. 29, 1982)) and was announced in the preamble to the final regulation in 1983 as a demonstration of EPA's "commitment to the objectives, goals and spirit" of the Clean Water Act. 48 Fed. Reg. 51,400 col. 3 (Nov. 8, 1983). From this somewhat offhand beginning, serious implications have flowed, and yet UWAG submits that the presumption was not well-founded from the beginning.
1. EPA May Not Create a Factual Presumption From a Statutory "Goal" EPA does not have authority to turn a "goal" of Congress into a rebuttable "presumption" that fishable, swimmable uses are attainable everywhere (unless the state proves otherwise). To begin with, Associated Indus. of Ala., Inc. v. Train, 9 ERC 1561 (N.C. Ala. 1976), held that EPA may not impose a blanket "fish and wildlife" use on Alabama's waters. Moreover, it is not appropriate to create a factual presumption out of a Congressional "goal." Unlike a legislative body, which is free to adopt presumptions for "policy" reasons (see United Scenic Artists, Local 829 v. NLRB, 762 F.2d 1027, 1034 (D.C. Cir. 1985)), an agency may establish a presumption only if there is a sound and rational connection between

08/04/2015 05:01 PM EDT 2-432Chapter 2 - Comment Documents Designated Uses the proved and inferred facts. NLRB v. Baptist Hosp., Inc., 442 U.S. 773, 787 (1979); Atchison, Topeka & Santa Fe Ry. Co. v. ICC, 580 F.2d 623, 629 (D.C. Cir. 1978). A presumption is normally appropriate where "proof of one fact renders the existence of another fact ‘so probable that it is sensible and timesaving to assume the truth of [the inferred] fact ... until the adversary disproves it.'" NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 788, 89 (1990); see also Chemical Mfrs. Assn. v. Department of Transp., 105 F.3d 702 (D.C. Cir. 1997); cf. American Min. Congress v. U.S. Army Corps of Engineers, 951 F. Supp. 267 (D.C. 1997) (striking down Tullock rule, which created a rebuttable presumption that the Corps had jurisdiction); National Mining Ass'n v. Babbitt, 172 F.3d 906 (D.C. Cir. 1999) (striking down rebuttable presumption because the agency did not explain its factual basis). The difference between a "goal" and a requirement is emphasized throughout the legislative history of the Clean Water Act. For example, Senator Buckley explained the 1985 "no discharge" goal as follows: [By establishing the 1985 goal] we would not be legislating an absolute requirement to be fully implemented as of a magic date but, rather, that we could be providing, in the language of the report, "the direction and the mandate to direct research efforts toward the development of the technology to apply to the achievement of a no-discharge standard." ... [This] will have the effect of placing the word "1985" in its proper focus as defining a goal, an ideal, but not legislating an end. Senate Comm. on Pub. Works, 93rd Cong., 1st Sess., A Legislative History of the Water Pollution Control Act Amendments of 1972 at 1300 (Comm. Print 1973) (hereinafter "Leg. Hist."). A presumption based on a "goal" (like EPA's fishable, swimmable presumption) is even less defensible than one based on a "policy." Congress intended a "policy" to have more legal force than a "goal." The legislative history shows that the Senate bill was more ambitious than the House bill because it set the no-discharge goal by 1985 as a "policy," whereas the House bill stated it as a "goal." 1 Leg. Hist. 489 (remarks of Congressman Wright during House debate). Courts have agreed that EPA should not use the "goals" of the Clean Water Act to override other provisions. "[A]s any student of the legislative process soon learns, it is one thing for Congress to announce a grand goal, and quite another for it to mandate full implementation of that goal. Read as a whole, the Clean Water Act shows not only Congress' determined effort to clean up our polluted lakes and rivers, but also its practical recognition of the economic, technological, and political limits on total elimination of all pollution from all sources." Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 178 (D.C. Cir. 1982). The court in Gorsuch noted that Congress hedged the "purposes" section by making it apply only as "consistent with the provisions of this [Act]." Id. at 42 (quoting Clean Water Act (CWA) § 101). The court warned that "[c]aution is always advisable in relying on a general declaration of purpose to alter the apparent meaning of a specific provision." Id at 178.
2. The Idaho Mining Decision Does Not Address EPA's Statutory Authority EPA says its rebuttable presumption of fishable, swimmable uses was upheld by Idaho Mining Ass'n, Inc. v. Browner, 90 F. Supp. 2d 1078 (D. Idaho 2000) (78 Fed. Reg. 54,522 n.9). However, the Idaho Mining decision held only that making a rebuttable presumption was a permissible interpretation of

08/04/2015 05:01 PM EDT 2-433Chapter 2 - Comment Documents Designated Uses EPA's regulations. The court never considered whether a rebuttable presumption that every water can be fishable, swimmable (until a state demonstrates otherwise) is an acceptable reading of Congress' "goal" of having fishable, swimmable waters wherever "attainable." In fact, the parties "agree[d] that the CWA does not itself create a rebuttable presumption that such uses are always attainable" (90 F. Supp. at 1088) (emphasis added). 3. It Is Not Rational to Turn a Goal of "Where Attainable" into a Presumption that Something Is Attainable Everywhere Even if it were lawful to base a presumption of fact on a "goal," in this case EPA's reasoning is circular. Congress' "goal" itself is to have fishable, swimmable waters wherever "attainable." This begs the question of where they are attainable. If the goal were to have fishable, swimmable waters everywhere, then the goal might rationally, if not legally, support a presumption that every water is fishable or swimmable. But it is not even minimally rational to take a "goal" of having fishable, swimmable waters where "attainable" and convert it to a presumption that the goal is attainable everywhere. In effect, the presumption reads "wherever attainable" out of the statute.
4. The Presumption Inhibits the States' Ability to Consider the "Use and Value" of Their Water States need flexibility to revise and fine-tune their water quality standards. As noted above, Congress required states to consider the "use and value" of waters when designating uses. Designating the use of a waterbody requires technical information about the level of water quality necessary to protect various uses within some designated level of certainty as well as social and political judgment to balance competing interests. The states are best able to make these judgments, because they understand local conditions and values. Section 305(b) of the Clean Water Act also demonstrates Congress' intent that costs and benefits be considered in working toward the goals of the Act. It requires states to submit biennial reports that include, among other things, estimates of the "economic and social costs" necessary to achieve the objectives of the Act and the "economic and social benefits" of such achievements. Also, the Clean Water Act makes it the policy of Congress to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution" and "to plan the development and use ... of land and water resources...." CWA § 101(b). The proposed rule, on the other hand, works against these provisions of the statute. The proposal says that a state that sets the highest uses will, without more, comply with the statute. And this approach renders meaningless the statutory command to consider the "use and value" of water, because it requires no consideration by the state at all. It simply tells the states that, if they designate uses they wish were attainable and that EPA considers these uses consistent with the goals of the Act, then the states need not consider anything. This effect is magnified by EPA's proposal to delete any requirement for states to provide any factual or other basis for upgrading uses. This amounts to an authorization to the states to be arbitrary and capricious, because it requires no rationale at all for an upgrade (much less a structured, scientific rationale). Some kind of determination of use attainability (taking into account the criteria that will need to be attained) is a necessary part of the "use and value" consideration that the statute requires. This does not necessarily mean that a full Use Attainability Analysis has to be done before a state can set or modify any

08/04/2015 05:01 PM EDT 2-434Chapter 2 - Comment Documents Designated Uses water quality standard. But states do need authority to set or modify uses (either general uses or subcategories) based on a range of factors, taking into account all the facts and policy reasons available. Under the proposal they cannot do this sort of analysis because EPA has ordered them to designate the "highest" uses unless the state demonstrates to EPA's satisfaction, based on an expensive and burdensome study, that the highest use is not attainable for one of six allowable reasons. EPA further restricts states' authority by dictating what level of health risk or aquatic effect is consistent with "fishable" and "swimmable" conditions without accounting for subtle variations or site-specific conditions. To be sure, EPA has discretion in prescribing WQS regulations. The statute says, broadly, that standards shall "enhance the quality of water" and "serve the purposes of the Act." With statutory language this vague, EPA has considerable leeway. But EPA's proposed approach creates real problems for states, permittees, and even the environment by misallocating limited EPA, state, and permittee resources. In particular, for water quality standards, the fishable, swimmable "goal" cannot be used to undercut the specific requirement in CWA § 303(c)(2) that states consider the "use and value" of a waterbody for several different uses, not just "fishable, swimmable" uses, when revising water quality standards.
5. The Presumption Inhibits the States' Ability to Correct Mistakes EPA is proposing to limit states' ability to correct mistakes. And correcting mistakes is important. "[Water quality standards] were initially developed with insufficient information regarding the practical implication of achievement; high goals of water use were set, but environmental, technological and economic constraints were seldom considered; and site-.specific analysis of waterway conditions that would affect either the attainability of the use or the criteria necessary to support attainable uses was rarely conducted." Statement of Douglas Costle (June 26, 1980), House Comm. on Pub. Works and Transportation, 96th Cong., 2d Sess., Implementation of the Federal Water Pollution Control Act at 916-17 (Comm. Print 1980). As noted in Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, other sections of the Act show that Congress intended costs and benefits to be considered in setting and revising pollution control standards. Perhaps most relevant to water quality standards is CWA § 302(b) which, in certain situations, allows EPA to implement the "fishable, swimmable" goal by imposing and modifying limits more stringent than BAT but only (upon a showing by the permit applicant) after determining "the relationship between the economic and social costs and the benefits to be obtained ... from achieving such limitations. Congress would not have imposed this restriction on EPA's authority if it had intended the states to implement the "fishable, swimmable" goal without regard to costs or benefits. For all the above reasons, EPA does not have the authority to turn an "interim goal" into a factual presumption for every water in the country. The important question is not, as in Idaho Mining, whether EPA can interpret its own regulation to create that authority; the question is whether, even with Chevron deference, EPA can (or should) interpret a "goal" of Congress to create a universal presumption of fact.
Response

08/04/2015 05:01 PM EDT 2-435Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.i 5.f.i 

# Comment ID 0208-A1.001.007
Author Name: Foster Wade Organization: The Fertilizer Institute II. Designated Uses: Use Attainability Analysis/Highest Attainable Use Presumption Creating a "rebuttable presumption" that the goals specified in section 101(a)(2) of the CWA are "attainable" uses by default, and forcing state and tribal regulators to prove otherwise, contradicts the remainder of sections 101 and 303 of the CWA. Under the CWA, the primary authorities for establishing and implementing WQS to achieve the aspirational "declaration of goals and policy" set forth in section 101 are expressly vested in states and tribes. In the Proposed Rule, EPA does not point to any language in the CWA explaining how the goals of the Act set forth in section 101 create regulatory presumptions or a preference-based hierarchy of potential uses, let alone establish the attainability of certain uses on all water bodies.[FN7] In fact, section 101(a) expressly conditions the Congressional goal of "protection and propagation of fish, shellfish, and wildlife and . . . recreation in and on the water" by the phrase, "wherever attainable,"[FN8] implying that the uses noted in section 101(a) presumptively will not be attainable in all cases. In turn, section 303 vests the establishment of WQS to achieve properly-designated uses in the states and tribes. Specifically, the operative language of section 303(c), providing the various types of uses for which waters may be designated, contradicts EPA's reliance on section 101(a) to create regulatory presumptions that certain uses are attainable as a factual matter, or preferable to other uses as a policy matter. For instance, section 303(c)(2)(A) provides that, in addition to serving "the purposes" of the CWA (parts of which are set forth in section 101(a)), the WQS adopted by states and reviewed by EPA "shall be established taking into consideration their use and value for [1] public water supplies, [2] propagation of fish and wildlife, [3] recreational purposes, and [4] agricultural, [5] industrial, and [6] other purposes, and also taking into consideration [7] their use and value for navigation."[FN9] Neither section 101 nor section 303 create presumptions that these uses already are attainable, or that one "use or value" is preferable to another (e.g., that protecting navigation is preferable to protecting recreation). Rather, the language clearly tells the states to "take into consideration" the "use and value" of the waterbody for each listed use. In effect, the Proposed Rule would alter this non-exclusive mix of possible uses set forth in the CWA to codify two new lists of "preferred" and "non-preferred" uses: those in section 101(a) would be "presumed" attainable unless state or tribal regulators prove otherwise in the future, and those listed in section 303(c) (which overlap in part with section 101(a)) apparently would be granted a lower preference.[FN10] Thus, many water bodies automatically could be designated for all of the uses set forth in section 101(a) regardless of the facts or the language in section 303(c). Finally, regulated entities that have a more direct interest in achieving meaningful "attainment" determinations that could change their source controls (and thus, a more direct interest in rebutting the proposed codification of EPA's

08/04/2015 05:01 PM EDT 2-436Chapter 2 - Comment Documents Designated Uses preferences among uses) would not be in a position to controvert the presumption because it would fall to states and tribes make rebuttal "demonstrations" through use attainability analyses ("UAAs").[FN11] For all of these reasons, this element of the Proposed Rule would be arbitrary and capricious and outside the scope of EPA's authority if finalized. EPA should revise the Proposed Rule to leave prioritization among the uses set forth in sections 101 and 303 of the CWA to each state or tribe under the more specific terms of section 303(c), because the CWA does not make such presumptions or set a hierarchy among uses. [FN7] 78 Fed. Reg. at 54,522. [FN8] 33 U.S.C. § 1251(a)(2). [FN9] Id. § 1313(c)(2)(A). [FN10] In practice, many presumptions may go without any rebuttal from states and tribes because, when considered en masse, states or tribes may lack the resources to compile detailed scientific studies for every water in question. [FN11] See 40 C.F.R. § 131.3(g); 78 Fed. Reg. at 54,544.
Response For response to this comment, see the following response essay(s): 5.i 5.k 

# Comment ID 0208-A1.001.009
Author Name: Foster Wade Organization: The Fertilizer Institute EPA's presumption of attainability has always been difficult to overcome and will be even more so should the proposed amendments become final, frustrating any effort on behalf of EPA to make the UAA process operate more effectively, its asserted goal.
Response For response to this comment, see the following response essay(s): 5.i 

# Comment ID 0224-A1.001.005

08/04/2015 05:01 PM EDT 2-437Chapter 2 - Comment Documents Designated Uses
Author Name: Ternieden Claudio Organization: Water Environment Federation CWA Section 303 requires states/tribes to develop WQS for waters of the U.S. within their boundaries. Criteria and designated uses (DUs) comprise the WQS and consider the use of waters for public water supplies, FAL, wildlife, recreation, agriculture, industry and navigation (CWA 303(c)(2)(A)). A "use" will require a specific level of water quality. EPA and the states have interpreted that the FAL, wildlife and recreation uses [the "floor"] are presumed attainable unless a UAA demonstrates otherwise.
Response For response to this comment, see the following response essay(s): 5.i 

# Comment ID 0231-A2.001.011
Author Name: Sanderson Stuart Organization: The Colorado Mining Association

•The proposed WQS Regulation changes the CWA mandate by creating a presumption that CWA s. 101(a)(2) uses are attainable, and this would impose a substantial burden on regulated stakeholders.

•The policy has led to States adopting standards, total maximum daily loads ("TMDLs") and permit limits based on a presumption, even though certain waters have no (and never will have the) capability to meet fishable/swimmable uses.
Response For response to this comment, see the following response essay(s): 5.i 

# Comment ID 0234-A2.001.017
Author Name: Andes Fredric Organization: Federal Water Quality Coalition B. When a UAA is Required EPA is proposing to codify a presumption that designated uses reflecting the section 101(a) goals ("fishable/swimmable") are attainable unless otherwise demonstrated, and that those uses can only be changed based

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on a UAA. Specifically, EPA is proposing to amend 40 C.F.R. § 131.10(j) to specify that a State must perform a UAA only when designating a use for the first time that does not include a CWA § 101(a)(2) use (fishable, swimmable) or is removing an existing CWA § 101(a)(2) use. The FWQC understands that this action would codify the policy that EPA has always held. However, this policy is not supported by the CWA. The CWA conditions the uses identified in § 101(a)(2) on attainability. The statute reads as follows: wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water [shall be achieved] (emphasis added). In the Proposed Rule, EPA would fundamentally change the CWA by creating a presumption that the § 101(a)(2) uses are attainable. This fundamental change would impose significant burden on municipalities, industries, and other land owners across the United States. This problem is particularly acute because EPA's underlying policy has already led to States to adopt standards, TMDLs and permit limits based on a presumption, even for waters that clearly have no capability to meet the fishable/swimmable uses and never will have that capability, and the Proposed Rule would mandate this approach universally. The result would be an enormous waste of resources spent on trying to meet standards that cannot be met -- resources that would be better spent on focused plans to have each waterbody meet the uses that are appropriate and attainable.
Response For response to this comment, see the following response essay(s): 5.i 12.a 

# Comment ID 0234-A2.001.022
Author Name: Andes Fredric Organization: Federal Water Quality Coalition However, consistent with our recommendation that all uses be attainable, we recommend that whenever a State amends a WQS to add a § 101(a)(2), that the State must first ensure that the use is attainable through a UAA.
Response For response to this comment, see the following response essay(s): 5.i 5.j

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# Comment ID 0244-A2.001.009
Author Name: Loomis Marion Organization: Wyoming Mining Association The EPA is proposing to create a universal designated use of fishable / swimmable for all State waters unless the State or companies can come up with the resources to complete a UAA and prove the negative. WMA does not agree with the EPA's presumption that the goals of fishable / swimmable waters are attainable unless otherwise demonstrated. This policy has already led to States adopting standards, total maximum daily loads (TMDLs) and permit limits even though there are certain waters that have not and never will meet fishable / swimmable uses. The resources that have already been, and will be, wasted as a result of this presumption could be better spent on focused plans to have waterbodies meet uses that are appropriate and attainable. As currently proposed, this will only put an increased burden on State resources and regulated stakeholders.
Response For response to this comment, see the following response essay(s): 5.i 12.a 

# Comment ID 0248-A2.001.004
Author Name: Jellerson David Organization: Mosaic Fertilizer LLC 2. Designated Uses EPA proposes that whenever a state adopts a new or revised water quality standard based on a Use Attainability Analysis ("UAA") the state must select the Highest Attainable Use ("HAU") for that waterbody, even where another use is compliant with the Clean Water Act and consistent with the needs of dischargers, users and state regulators. See 78 Fed. Reg. at 54,522. Mosaic has several concerns about this proposal. First, the Proposed Rule appears to create a hierarchy of uses inconsistent with the statutory language of the Clean Water Act by establishing a rebuttable presumption that the list of designated uses in Section 101 of the CWA -- aquatic and recreational uses -- are attainable, even when the State and stakeholders may prefer one of the broader set of uses allowable under Section 303 of the CWA. We join in, and incorporate by reference, the comments of The Fertilizer Institute ("TFI") on this issue, and urge EPA not to create a preference for Section 101 uses over allowable Section 303 uses. The broad policy goals of the Clean Water Act are better served by allowing states to prioritize among uses designated in Section 101 and Section 303 of the CWA, without creating a preference for some goals over others.

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Response For response to this comment, see the following response essay(s): 5.i 1.c 

# Comment ID 0252-A2.001.009
Author Name: Fry Eric Organization: Peabody Energy

•The proposed WQS Regulation changes the CWA mandate by creating a presumption that CWA s. 101(a)(2) uses are attainable, and this would impose a substantial burden on regulated stakeholders.

•The policy has led to States adopting standards, total maximum daily loads ("TMDLs") and permit limits based on a presumption, even though certain waters have no (and never will have the) capability to meet fishable/swimmable uses.

Response For response to this comment, see the following response essay(s): 5.i 

# Comment ID 0257-A1.001.017
Author Name: Harpole Chad Organization: Kentucky Chamber of Commerce Finally, in the preamble to the Proposed Rule at page 54522, EPA states that it interprets the national goal in Section 101(a)(2) of the Act of the attainment and protection of fishable/swimmable uses in all waters as establishing a presumption that such uses are attainable unless demonstrated otherwise through a UAA. The plain language of Section 101(a)(2) of the Act, however, states that the national goal is to be achieved "wherever attainable." Therefore, Section 101(a)(2) does not suggest in any way that the attainability of all uses must be presumed. The Chamber's concern is such an interpretation and presumption would necessarily raise the bar on demonstrating through a UAA that a particular use is not attainable. This is further complicated by the fact that many states, such as Kentucky, designated all waters as fishable/swimmable without first evaluating whether all such uses exist or the water quality necessary to support such uses. Accordingly, the Chamber requests that EPA clarify that in conducting a UAA a state will not be faced with an additional burden of a presumption that the use to be removed is attainable.

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Response For response to this comment, see the following response essay(s): 5.i 5.g 

# Comment ID 0262-A2.001.009
Author Name: Rawlings Laurent Organization: Home Builders Association of Kentucky

•The proposed WQS Regulation changes the CWA mandate by creating a presumption that CWA Section 101(a)(2) uses are attainable, which imposes a substantial burden on regulated stakeholders

•Having this policy has led to States adopting standards, total daily maximum loads (TMDLs) and permit limits based on presumption, although certain waters have no (and will never have) capability to meet fishable/swimmable uses

Response For response to this comment, see the following response essay(s): 5.i 

# Comment ID 0280-A2.001.005
Author Name: Aspatore Amanda Organization: National Mining Association NMA also objects to EPA's codification of its presumption that the goals reflected in Sec. 101(a) of waters being "fishable, swimmable" are attainable unless otherwise demonstrated. Under the CWA, use designations are clearly within the purview of the states, which reflects the Congressional recognition that states are in the best position to make decisions about their own local waterways. By forcing states to prove a negative in the context of designated uses, EPA is placing an unsupported burden on state resources and is creating a de facto "all uses" designation for all state waters unless states - or individual companies - can come up with the resources necessary to complete a UAA and prove a best designated use is something other than "fishable, swimmable." This policy, which EPA now seeks to codify, has led to states adopting standards, total maximum daily loads (TMDLs), and permit limits based on a wrongful presumption for waters that have no capability of meeting a "fishable, swimmable" use either now or realistically in the future. Importantly, such an outcome contradicts the plain language of Sec. 101(a)(2) of the CWA, which states that "wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish...and

08/04/2015 05:01 PM EDT 2-442Chapter 2 - Comment Documents Designated Uses provides for recreation...[shall be achieved]" (emphasis added). EPA should therefore delete this inappropriate presumption from its proposal, and should require a UAA before a Sec. 101(a)(2) use is adopted if a potential "fishable, swimmable" designation is contested.
Response For response to this comment, see the following response essay(s): 5.i


# 5.J - DU - OTHER GENERAL Comment ID 0118-A1.001.004
Author Name: Lakkad Manish Organization: NA EPA in the 40 CFR 131.10 included the rule making should be provided in the direction of the designated uses by the states and tribes, to provide restoration of the water bodies amongst the state and maintaining the ecosystem sustainable. Various designated uses are categorized under this regulation such as Water supplies to Public , Recreation uses, Navigation uses, Agriculture, Protection of fish and wildlife, etc .The proposal placed by the EPA is to provide amendment in the rule making for the use of the water bodies by the state and provide strong standards based on the UAA(Use Attainability Analysis), .EPA requires that the states and tribes should provide the strong objective for its water ,this can be done by providing the WQS(Water Quality Standards) for the particular water body and by providing criteria to protect those uses .Various Uses have been listed by the EPA such as public water supplies which includes water that is used for the drinking and food processing should be treated first and then it should be supplied to the community .The state and tribe should designate the use of the water from the particular water body which has sufficient water. The second use described is maintaining the aquatic life ,that is protection of the fish ,shellfish and wild life. State should set the standards to protect the wild life and aquatic life of the water body such as shell fish ,oysters, and the wild life of the water in order to maintain the aquatic integrity of the water body. The wildlife and aquatic life plays important role in maintaining the food chain of the ecosystem. So it is however required to protect the wild life .Water body survey techniques and assessment should be done in order to provide detailed evaluation of the aquatic uses and how this uses can be found useful in achieving the integrity of the water body. The state should provide the analysis of these factors every 6 months .The physical factors such as the stream size ,velocity of the water flow, volume of the water in the stream, temperature ,sedimentation ,etc .All this factors play important role in maintain the integrity of the water body .Chemical factors such as oxygen level ,toxin levels, solids, pH level in the water should be checked. Biological factors such as fish, other living organisms. All this factors are necessary to be balanced in order to maintain integrity of the water body. The change in either of these factors may result into the imbalance. The physical factor shows overall nature of the water body any changes in the physical form can affect the chemical form and biological form.

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Response For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0134-A1.001.008
Author Name: Shea III Quinlan Organization: Edison Electric Institute Further, EPA should encourage, or even require, a review of the attainability of uses during the triennial review of water quality standards, in particular before a total maximum daily load is adopted for a water body that it not attaining a § 101(a)(2) use.
Response For response to this comment, see the following response essay(s): 5.j 6.g 

# Comment ID 0145-A2.001.008
Author Name: Shea III Quinlan Organization: Edison Electric Institute Further, EPA should encourage, or even require, a review of the attainability of uses during the triennial review of water quality standards, in particular before a total maximum daily load is adopted for a water body that it not attaining a § 101(a)(2) use.
Response For response to this comment, see the following response essay(s): 5.j 6.g 

# Comment ID 0184-A2.001.005

08/04/2015 05:01 PM EDT 2-444Chapter 2 - Comment Documents Designated Uses
Author Name: Curley Ed Organization: The Western Coalition of Arid States WESTCAS suggests that EPA broaden the process for defining the HAU to allow states the flexibility to use alternative methods in evaluating use attainability and criteria to support the uses, such as the information provided in the Arid West Water Quality Research Project. The Arid states are made up mostly of with ephemeral and intermittent streams. WESTCAS continues to impress upon EPA that the information contained in the Arid West Water Quality Research Project remains as important today as when the research project was completed. Because Congress established that project and contributed $5 million dollars to the work it must be allowed to be utilized. A few examples of application would be:
1. Western States should have the ability to have UAAs for a class of streams in a geographic region in lieu of having to conduct an individual UAA on each stream; all ephemeral streams in a geographic location or which are determined to be essentially identical. Watersheds which have similar characteristics and are all deemed to have a designated use should be grouped together.
2. Arid West UAAs should be allowed to be expedited reports where conditions in ephemeral streams reference much of the information in a comparable stream segment to the information already obtained for another similar stream condition, rather than collecting a lot of new characterization data. 3. The highest attainable use may not be a 101 Use. The regulations should explicitly recognize that the highest attainable use may not be either fishable or swimmable. The Arid states have many of these streams.
4. States need flexibility to develop expedited UAAs which can be done less expensively for ephemeral and intermittent streams and constructed water conveyances. The Arid western states have many streams which are only active during spring run-off or during high rain storms; otherwise they remain dry.
Response For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0184-A2.001.007
Author Name: Curley Ed Organization: The Western Coalition of Arid States The proposed rule must allow for states to develop and use guidance documents which are appropriate for the regions and areas where streams are located. Limiting the definition strictly to a regulatory approach will continue the existing problems with the current system. EPA has consistently expressed that states should have flexibility to address their

08/04/2015 05:01 PM EDT 2-445Chapter 2 - Comment Documents Designated Uses state needs: "It is the intent of EPA that a state or tribe should have the flexibility to choose its preferred approach." However WESTCAS is concerned that this statement does not go far enough in describing what a "preferred approach" can actually include. While the proposed rule has provided example approaches, but also says it does not intend states and tribes to be limited to only these approaches. In the past, WESTCAS has submitted comments to EPA regarding the challenges the Arid Western states face with setting water quality standards using the same methods as states in less arid sections of the country. The Arid states have intricate and complex water conveyances for moving water, ephemeral and intermittent streams, and effluent dependent waters.
Response For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0200-A1.001.006
Author Name: Covar Zak Organization: Texas Commission on Environmental Quality 2. Designated Uses. The TCEQ requests that EPA continue to provide states with the flexibility to apply the most appropriate and scientifically defensible approach for the conditions within each state.
Response For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0201-A1.001.011
Author Name: Godfrey Mike Organization: Alabama Power To avoid these issues, EPA must establish an alternate standard that permits States to choose designated uses for waters lesser than the uses specified in Section 101(a)(2) without having to engage in a UAA, at least in some instances. Perhaps UAAs could be reserved for the most important and/or largest water bodies (which could be defined or classified in some way in 40 C.F.R. Part 131) the use for which States desire to designate as lesser than the uses specified in Section 101(a)(2). Relatedly, for certain types of water bodies or for certain water bodies with common

08/04/2015 05:01 PM EDT 2-446Chapter 2 - Comment Documents Designated Uses water quality characteristics, such as low flow or improper substrate, EPA could reduce the degree of analysis necessary to prove a use is not attainable. Alternatively, the agency could grant States considerable discretion to determine when UAAs are necessary and when, for example, existing conditions and historical uses of a water body provide sufficient evidence to support a designation lesser than the uses specified in Section 101(a)(2) without the need to conduct a UAA.
Response For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0202-A2.001.006
Author Name: Frederick Kevin Organization: Wyoming Department of Environmental Quality/Water Quality Division The WDEQ/WQD is concerned that if the EPA intends to interpret the 101(a)(2) uses as they are described in Section III(C)(2) of the Federal Register Vol. 78, No. 171 that the state will be required to conduct a UAA on every water body that does not contain aquatic organisms consumed by humans. Many waters in the State of Wyoming do not contain aquatic organisms commonly consumed by humans and therefore this requirement would be unnecessarily burdensome and would result in more administrative work for the State. This requirement would also be difficult to implement given that the UAA would need to rely on the six removal factors at 131.10(g). The six factors at 131.10(g) are not directly applicable to whether or not individuals or members of the public do, or do not consume aquatic organisms from a particular water body. Typically, a water body either contains, or does not contain organisms consumed by the humans, or the public does, or does not typically consume organisms from a particular water body.
Response For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0203-A1.001.010
Author Name: Christman Jim Organization: Hunton & Williams on behalf of Utility Water Act Group 4. EPA Should Require that Attainability Be Demonstrated Instead of this burdensome scheme, UWAG recommends, in agreement with the comments of the Federal Water Quality Coalition, that EPA accept the "wherever attainable" language of § 101(a)(2) and require the state to perform an

08/04/2015 05:01 PM EDT 2-447Chapter 2 - Comment Documents Designated Uses assessment sufficient to satisfy itself of attainability before it adopts a § 101(a)(2) (fishable, swimmable) use. Also, the state should evaluate the attainability of existing fishable, swimmable designated uses, consistent with the state's obligation to consider the "use and value" of the waters. As the Federal Water Quality Coalition suggests, EPA should amend § 131.10 to require some form of UAA, [FN5] if none has been performed, before a state adopts a total maximum daily load to implement the standard. Indeed, a state should be encouraged to conduct a UAA whenever there is reason to doubt the attainability of a designated use. If EPA requires states, when doing a UAA, to find the HAU, this should mean the highest attainable use "as determined by a State using best professional judgment based on data and information that the State determines is the best available." Moreover, the state's decision as to the highest attainable use should be based on a balancing of policy, economics, and technical data - not merely a federally required choice of the most restrictive fish habitat that might conceivably be attained under future conditions. [FN5] The UAA UWAG envisions need not be the burdensome, expensive product EPA has required states to undertake in order to prove that a use cannot be attained. Rather, it should assemble all readily available information in order to assess the likely impact on point and nonpoint discharges and reach a reasoned conclusion that the use is attainable.
Response For response to this comment, see the following response essay(s): 5.j

08/04/2015 05:01 PM EDT 2-448Chapter 2 - Comment Documents Designated Uses 

# Comment ID 0207-A1.001.022
Author Name: Bodine Susan Organization: American Farm Bureau Federation et al. As § 101(a)(2) uses are goals that are recommended by the statute only where attainable, it is appropriate to require a demonstration of attainability (considering chemical, physical, chemical, and social factors as provided in 40 C.F.R. § 131.10(g)) before a § 101(a)(2) use is adopted. In addition, the attainability of existing uses should be evaluated. EPA should amend § 131.10 to require a UAA, if none has been performed for a WQS, before a state adopts a total maximum daily load to implement the standard, as recommended by the National Research Council of the National Academy of Sciences in 2001.[FN1] Alternatively, EPA could incorporate the evaluation of attainability of standards for a third of state waters in each of the next three triennial reviews of water quality standards. EPA also should support UAAs by directing EPA Regions to work with states on the development of UAAs. We recognize that in March 2006, the Office of Water issued memorandum to the EPA Water Division Directors entitled "Improving the Effectiveness of the Use Attainability Analysis (UAA) Process." As this memorandum points out: "[A]ppropriate and defensible water quality standards (WQS) are essential for achieving the Clean Water Act (CWA) goals of maintaining and restoring water quality-and getting WQS right starts with getting designated uses right." However, despite this memorandum and associated guidance, many states and EPA Regions are not developing or approving UAAs. Adopting a requirement to require states to evaluate the attainability of standards, and holding EPA Regions accountable for this requirement, would help resolve this issue. [FN1] National Academy of Sciences, National Research Council, Assessing the TMDL Approach to Water Quality Management (2001) ("States should develop appropriate use designations for waterbodies in advance of assessment and refine these use designations prior to TMDL development."), http://www.nap.edu/catalog/10146.html
Response For response to this comment, see the following response essay(s): 5.j 5.d 

# Comment ID 0225-A1.001.006
Author Name: Blackham Leonard Organization: Utah Department of Agriculture and Food Another concern is the fact that a UAA may be used as a means to slow down or even stop the process of evaluating beneficial uses for the benefit the water was intended to be used. There are many examples of a third party(s) entering into the process simply for the purpose of causing a disruption. These kinds of delays could result in more harm to the water body. Requiring states to use the UAA at the beginning would cause delay and expense in designating water

08/04/2015 05:01 PM EDT 2-449Chapter 2 - Comment Documents Designated Uses
bodies.
Response For response to this comment, see the following response essay(s): 5.j 12.a 

# Comment ID 0228-A2.001.010
Author Name: Conn Rachel Organization: Amigos Bravos EPA needs to provide guidance to states that hydrology is not the only factor determining use attainability. More emphasis and requirements to investigate whether or not the use is an existing use (a use that has been obtained in the water body on or after 11/28/75) should be provided by EPA.
Response For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0231-A2.001.013
Author Name: Sanderson Stuart Organization: The Colorado Mining Association

•EPA must adhere to the language of CWA s. 101(a)(2).
Response For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0234-A2.001.023
Author Name: Andes Fredric

08/04/2015 05:01 PM EDT 2-450Chapter 2 - Comment Documents Designated Uses Organization: Federal Water Quality Coalition EPA also should support UAAs by directing EPA Regions to work with States on the development of UAAs. We recognize that in March 2006, the Office of Water issued memorandum to the EPA Water Division Directors entitled "Improving the Effectiveness of the Use Attainability Analysis (UAA) Process." As this memorandum points out: "[A]ppropriate and defensible water quality standards (WQS) are essential for achieving the Clean Water Act (CWA) goals of maintaining and restoring water quality-and getting WQS right starts with getting designated uses right." However, despite this memorandum and associated guidance, States and EPA Regions are not being active in developing and approving UAAs. Adopting a requirement for States to evaluate the attainability of standards, and holding EPA Regions accountable for implementation of this requirement, would help resolve this issue.
Response For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0251-A2.001.006
Author Name: Wigal Jennifer Organization: Oregon Department of Environmental Quality EPA should clarify in any final rule its expectations for states regarding the specificity of use categories and associated criteria The rule should clarify how specific use categories must be (both for uses considered to be 101(a) uses and non-101(a) uses).
Response For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0251-A2.001.008
Author Name: Wigal Jennifer Organization: Oregon Department of Environmental Quality In the preamble to the proposed rules EPA recognizes that a state may not have all the data that may be desired when making a use decision or correction. "Where data is limited, inconclusive, or not available, states and tribes have

08/04/2015 05:01 PM EDT 2-451Chapter 2 - Comment Documents Designated Uses discretion to determine whether an existing use has been attained, based on either the use or the water quality." And the definition of highest attainable use above says that it may be determined using the "best available data and information." These statements do not reconcile with Oregon's recent experience. EPA disapproved a UAA because DEQ did not have biological and water quality data to better define the existing use in a small creek that is screened to exclude fish and has been the overflow channel for a man made irrigation canal since before 1975. DEQ revised the use from "Redband trout" to "modified aquatic life" use based on the 40 CFR 131.10(g) factors relating to physical habitat and hydro-modification and relied on a large amount of information about the conditions and management of thesegment and the attainability of habitat conditions in that segment, but did not have available water quality or macroinvertebrate data. The preamble statements imply that this rule, if adopted as proposed, would result in a different outcome. If EPA does not really mean that the state has the discretion to make a decision based on the best available data and information, the rule language should be revised to accurately describe what is required and what EPA's decision rule or test will be so both the states and EPA staff are clear about what is expected and how to make these decisions.
Response For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0252-A2.001.011
Author Name: Fry Eric Organization: Peabody Energy

•EPA must adhere to the language of CWA s. 101(a)(2).
Response For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0262-A2.001.011
Author Name: Rawlings Laurent Organization: Home Builders Association of Kentucky

•EPA must adhere to the language of CWA Section 101(a)(2)
Response

08/04/2015 05:01 PM EDT 2-452Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0268-A2.001.006
Author Name: Bell Nina Organization: Northwest Environmental Advocates In the discussion of these proposals, EPA states, rather oddly, that "[d]esignated uses play such an important role in the effective implementation of the CWA." Fed. Reg. at 545222. EPA omits in this commentary that designated uses are themselves part of water quality standards, a fact frequently ignored by regulators, and that they are independently applicable parts of water quality standards. This would be an ideal place to make that point. If EPA thinks that designated uses are as important as it appears to say in the preamble, it would make clear to states that regulatory actions – such as the issuance of NPDES permits, TMDLs, 303(d) lists, and 401 certifications – must treat designated uses as the part of water quality standards that they are. EPA comments that it is essential for states to understand the requirements for use designation when adopting a use "for the first time" or when removing or revising a use. Id. It is very troubling to read that there are states that have not yet fully designated their uses. If this does not cry out for EPA action through revisions in the regulations, as well as EPA action to remedy the problem, it is not clear what does since, after all, "uses play such an important role[!]," according to EPA. This proposed rule should be amended to include a requirement to have a default use designation process in place to address any waters that do not currently have use designations in state standards. A default designation will both provide protection and will provoke recalcitrant states into action. Such a regulation is consistent with the statute and would allow EPA to take or threaten to take federal action in the future to remedy a problem that should not exist anywhere in this country forty years after passage of the CWA. This approach would also be consistent with, as EPA describes, the rebutable presumption of attainability of section 101(a)(2) uses. Id. We suggest that, for accuracy, EPA describe water quality standards to include antidegradation policies in this section and throughout the preamble. It is our view that these proposed regulations and Federal Register notice give short shrift in particular to existing uses and their protection, much like the rest of EPA's implementation of the Act. For example, the reference to "existing uses" in the description of the six factors that can be used to justify removal of a use that is not an existing use needs a footnote so that readers can understand it is a term of art with a very specific definition. Likewise, footnote no. 8 should state that a UAA protects existing uses. What is missing from this discussion, as well as the existing regulations and proposed changes to them, is how existing uses and designated uses are or should be linked. In the absence of any type of system by which states identify existing uses and designate them after they have been identified in a subsequent triennial review, states will continue to proceed as if that baseline protection of existing uses were not incorporated into the regulatory framework. We note that Pennsylvania has a method to do just this and we would recommend that EPA include a requirement in these proposed rules that other states be required to do the same. An existing use that is not identified and not looked for and not thought about is an existing use that garners no protection. The types of aquatic life that tend to fall into this category are the amphibians that are experiencing sharp population declines and live in waters commercial and recreational fish do not inhabit. See, e.g., Letter to Dan Opalski, EPA, and John King, NOAA, from Nina Bell, NWEA, Re: Oregon Coastal Nonpoint Pollution Control Program;

08/04/2015 05:01 PM EDT 2-453Chapter 2 - Comment Documents Designated Uses Protection of the Designated Use of Amphibians in Non-Fish-Bearing ("Type N") Streams Through the MidCoast Implementation Ready TMDL (Oct. 5, 2012) [0268-A4]. By declining to emphasize implementation methods for Tier 1 antidegradation protections EPA is failing these and other species, species that will eventually end up listed as threatened or endangered pursuant to the Endangered Species Act, leading to economic hardship and regulatory difficulties as well as the potential for widespread extirpation of species and their eventual extinction. EPA discusses the "broad discretion" states have to "determine the appropriate level of specificity" in designating uses and comments that EPA has no intention of narrowing that discretion. We suggest that EPA would do better to narrow the discretion. The discretion has caused, as EPA is well aware, huge discrepancies between the states, leading to a failure of EPA to ensure a consistent program across the nation. The CWA is a federal law, with national objectives. Because designated uses are at the very heart of the statute, too great a variation in how uses are designated undermines those national objectives. EPA does not deny this point, in fact makes it itself, but declines to take action to remedy the problem. Id. at 54522-23. This is discussed again in the section on adoption of highest attainable uses in which EPA comments on the broad discretion states have to determine the "appropriate level of specificity in establishing designated uses." Id. at 54523. What EPA does not discuss is how it can ensure all states meet some minimum to ensure this federal program is built on a consistent foundation. In the absence of its providing some solution to a known problem, EPA's commitment to state discretion has no policy objective, it is merely political. In addition, differences in how states designate uses can have a direct effect on the importance of identifying and protecting existing uses in a given state. But EPA does not consider this issue.
Response For response to this comment, see the following response essay(s): 5.j 7.l 

# Comment ID 0274-A2.001.005
Author Name: Yeaton Violet Organization: Region 10 Regional Tribal Operations Committee While it is unclear why this change is needed, the Tribal Caucus would suggest that the Proposed Rule be modified and clarified to provide that if existing categories do not protect a waterbody's highest attainable use, then a state or tribe is required to adopt a new category or subcategory of use in order to protect the highest attainable use. This will ensure that the highest achievable use of a waterbody is achieved.
Response For response to this comment, see the following response essay(s): 5.j 5.f.i

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# Comment ID 0278-A2.001.007
Author Name: Hornback Chris Organization: National Association of Clean Water Agencies EPA should use its regulatory clarifications to refocus states and stakeholders on UAAs themselves. Despite increased attention on the value and importance of UAAs, they remain largely underutilized as a tool. In 2001, The National Research Council published a landmark report entitled, Assessing the TMDL Approach to Water Quality Management. Although the Council was tasked with assessing the scientific basis of EPA's TMDL program, it focused considerable attention on the underlying standards program. According to the Council: Water quality standards are the benchmark for establishing whether a waterbody is impaired; if the standards are flawed (as many are), all subsequent steps in the TMDL process will be affected. Although there is a need to make designated use and criteria decisions on a waterbody and watershed-specific basis, most states have adopted highly general use designations commensurate with the federal statutory definitions. However, an appropriate water quality standard must be defined before a TMDL is developed. Within the framework of the Clean Water Act (CWA), there is an opportunity for such analysis, termed use attainability analysis (UAA). The Council provided explicit recommendations that UAAs "be considered for all waterbodies before a TMDL plan is developed." A year after this landmark report, EPA released its own self-critical assessment entitled, The Twenty Needs Report: How Research Can Improve the TMDL Program. In that assessment, EPA specifically acknowledged the need to revisit the scientific basis of use designations (focusing on tiered uses as an essential step) and "take a fresh look at UAA methods development." And in 2003, the then-Government Accounting Office released a report to Congress entitled, Improved EPA Guidance and Support Can Help States Develop Standards That Better Target Cleanup Efforts. In that report, GAO concluded: The accuracy of designated uses is critically important, given their central role in determining whether or not waters are to be targeted for cleanup. Inaccurately identified uses may result in either wasted resources caused by the "overprotecting" of some waters, or unacceptable environmental consequences caused by the "underprotecting" of others. Drawing on these reports, recommendations and conclusions, NACWA recommends that EPA amend 40 CFR §131.10 by adding a new subsection (1) to clarify that: A State may conduct a use attainability analysis under this regulation whenever the attainability of a designated use is called into question, whether before, during or after a TMDL has been established under 40 CFR §130.7(c).
Response

08/04/2015 05:01 PM EDT 2-455Chapter 2 - Comment Documents Designated Uses For response to this comment, see the following response essay(s): 5.j 

# Comment ID 0283-A1.001.008
Author Name: Thorme Melissa Organization: Downey Brand Attorneys LLP on behalf of several clients The other clarification that should be made relates to when a State initially assigns uses for a water body that had presumed uses under the so-called "tributary rule" (where upstream waters are presumed to have the same uses as those designated on downstream waters). Many States used this form of blanket use assignment in lieu of having to survey and specifically designate uses for all waters in the State. However, EPA Region IX has opined that a UAA must be done to refine and de-designate the upstream waters that have never officially been designated except as a tributary to downstream waters that have designated uses. As stated previously, States should be encouraged to accurately designate use and should not arbitrarily maintain use designations on tributaries where those uses are not existing uses. This situation where tributary uses are first actually designated (as opposed to being assigned under a tributary rule) should fall within the definition of when a State "designates uses for a water body for the first time" as that phrase is used in the proposed regulations at section 131.10.
Response For response to this comment, see the following response essay(s): 5.j


# 5.K - DU - LEGAL Comment ID 0119-A1.001.005
Author Name: Lemke Lee Organization: Georgia Mining Association In essence, we feel this change could effectively constitute an illegal federalization of authority reserved for the states in the CWA and GMA believes should not be incorporated in the Final Rule.
Response For response to this comment, see the following response essay(s): 5.k

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# Comment ID 0171-A2.001.008
Author Name: Borkowski Winston Organization: Hopping Green & Sams on behalf of CF Industries, Inc. Designated Uses - Highest Attainable Use In the preamble to the proposed rule, EPA states: States and tribes have broad discretion to determine the appropriate level of specificity to use in identifying and defining designated uses, and nothing in this proposal is intended to narrow that discretion. However, the EPA has found that the clearer, more accurate, and refined the designated uses are in describing the state's or tribe's objective for a water body, the more effective those use designations can be in driving the management actions necessary to restore and protect water quality. The proposed amendment to 40 C.F.R. § 131.10(g), in conjunction with the definition of highest attainable use (HAU), strips the states of the very discretion EPA references and makes an already onerous Use Attainability Analysis (UAA) process more complicated and burdensome and less likely to ever result in a State ever obtaining a credible and defensible change of designated use under § 131.10(g).
Response For response to this comment, see the following response essay(s): 5.k 12.a 

# Comment ID 0173-A1.001.008
Author Name: Borkowski Winston Organization: Hopping Green & Sams on behalf of CF Industries, Inc. Designated Uses - Highest Attainable Use In the preamble to the proposed rule, EPA states: States and tribes have broad discretion to determine the appropriate level of specificity to use in identifying and defining designated uses, and nothing in this proposal is intended to narrow that discretion. However, the EPA has found that the clearer, more accurate, and refined the designated uses are in describing the state's or tribe's objective for a water body, the more effective those use designations can be in driving the management actions necessary to restore and protect water quality.

08/04/2015 05:01 PM EDT 2-457Chapter 2 - Comment Documents Designated Uses The proposed amendment to 40 C.F.R. § 131.10(g), in conjunction with the definition of highest attainable use (HAU), strips the states of the very discretion EPA references and makes an already onerous Use Attainability Analysis (UAA) process more complicated and burdensome and less likely to ever result in a State ever obtaining a credible and defensible change of designated use under § 131.10(g).
Response For response to this comment, see the following response essay(s): 5.k 12.a 

# Comment ID 0175-A1.001.010
Author Name: Canton Steven Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. h. We question EPA's legal authority under the CWA to regulate nonpoint source pollution (NPS) through the evaluation and use of BMPs, or otherwise.
Response For response to this comment, see the following response essay(s): 5.k 

# Comment ID 0194-A1.001.008
Author Name: Stonestreet Robert Organization: West Virginia Chamber of Commerce The Chamber notes that the specifically proposed revisions to the existing regulations undermine state decision-making responsibilities. The states, and not EPA, have the primary responsibility for establishing their water quality standards, and must retain the flexibility and authority to establish designated uses, and consider the "use and value" of their waters.
Response For response to this comment, see the following response essay(s): 5.k

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# Comment ID 0207-A1.001.019
Author Name: Bodine Susan Organization: American Farm Bureau Federation et al. First, we note that EPA is proposing to expand what is considered a use under § 101(a)(2). EPA states that: "By ‘the uses specified in CWA section 101(a)(2)' the EPA means the uses and functions encompassed within the CWA section 101(a)(2), such as aquatic life support, wildlife support, consumption of aquatic life, and recreation." 78 Fed. Reg. at 54526 (emphasis added). However, "consumption of aquatic life" is not a use identified in § 101(a)(2). EPA cannot, in preamble language, expand the goals of the CWA. Second, while we agree that uses must be attainable, the statute does not give EPA the authority to require the "highest attainable use." Instead, as discussed below, § 303(c)(2)(A) leaves the identification of uses to the states, after consideration of a variety of potential purposes.
Response For response to this comment, see the following response essay(s): 5.k 

# Comment ID 0234-A2.001.014
Author Name: Andes Fredric Organization: Federal Water Quality Coalition We also note that the uses identified in in § 101(a)(2) are goals. There is nothing in the CWA to suggest that the "goals" of the Act create independent requirements. In fact, §101(a) makes it clear that the goals are to be implemented "consistent with the provisions of this Act." Thus, the actual establishment of water quality uses must occur in accordance with a specific statutory authority. That authority is found in § 303(c), which expressly gives States the authority to establish uses for waters, "taking into consideration their use and value" for a variety of purposes specified in the Act. Thus, EPA's proposed requirement to adopt a "highest attainable use" is inconsistent with the CWA and usurps State authority under the Act.
Response For response to this comment, see the following response essay(s): 5.k 

# Comment ID 0240-A2.001.011

08/04/2015 05:01 PM EDT 2-459Chapter 2 - Comment Documents Designated Uses
Author Name: Turner Jr. James Organization: Murray Energy Corporation h. We question EPA's legal authority under the CWA to regulate nonpoint source pollution (NPS) through the evaluation and use of BMPs, or otherwise.
Response For response to this comment, see the following response essay(s): 5.k 

# Comment ID 0243-A2.001.003
Author Name: Daniels Zane Organization: Ohio Coal Association Designated Uses (Section 131.10) The Proposed Rule would require that, following a Use Attainability Analysis ("UAA"), a State must adopt the Highest Attainable Use ("HAU") which is defined as "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable ...." 78 Fed.Reg. 54523. There is no need to include this requirement in federal regulations. USEPA's existing regulations charge states with "reviewing, establishing, and revising water quality standards." 40 CFR 131.4(a). The Proposed Rule abrogates and undermines state authority to make an appropriate UAA determination.
Response For response to this comment, see the following response essay(s): 5.k 

# Comment ID 0248-A2.001.006
Author Name: Jellerson David Organization: Mosaic Fertilizer LLC Third, we respectfully question whether EPA has the authority to create a preference for certain designated uses by a rulemaking action. The statutory language on which EPA relies expresses only that the achievement of aquatic and recreational uses is a "national goal . . . wherever attainable." See 33 U.S.C. § 1251(a)(2). This is a slender reed on

08/04/2015 05:01 PM EDT 2-460Chapter 2 - Comment Documents Designated Uses which to base so fundamental a change in the structure of the CWA so many years -- indeed decades -- after contrary administration and implementation of this cornerstone environmental law.
Response For response to this comment, see the following response essay(s): 5.k 

# Comment ID 0257-A1.001.016
Author Name: Harpole Chad Organization: Kentucky Chamber of Commerce Nothing in the Act appears to mandate that states develop such subcategories of uses and the criteria necessary to support those uses. Therefore, the HAU concept is another intrusion on state flexibility and authority over determination of use and value of waters.
Response For response to this comment, see the following response essay(s): 5.k 

# Comment ID 0276-A2.001.004
Author Name: Alves James Organization: Hopping Green & Sams on behalf of Florida Electric Power Coordinating Group, Inc. Designated Uses - Highest Attainable Use In the preamble to the proposed rule, EPA states: States and tribes have broad discretion to determine the appropriate level of specificity to use in identifying and defining designated uses, and nothing in this proposal is intended to narrow that discretion. However, the EPA has found that the clearer, more accurate, and refined the designated uses are in describing the state's or tribe's objective for a water body, the more effective those use designations can be in driving the management actions necessary to restore and protect water quality. (Emphasis added.) The proposed amendment to 40 C.F.R. § 131.10(g), in conjunction with the definition of highest attainable use (HAU), deprives the states of the discretion EPA recognized in the first sentence (above), and makes an already onerous Use Attainability Analysis (UAA) process more complicated, more burdensome, and less likely than

08/04/2015 05:01 PM EDT 2-461Chapter 2 - Comment Documents Designated Uses ever to result in a state actually being able to change designated uses under § 131.10(g).
Response For response to this comment, see the following response essay(s): 5.k 12.a

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