CHAPTER 2 

Issue Category: Designated Uses 

Pages 2-230 – 2-462

Response to Public Comments

Water Quality Standards 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 

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Chapter 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. 

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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. 

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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 

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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.) 

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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 

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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 

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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 

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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 

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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 

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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 

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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-theground 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. 

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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 

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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 

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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 

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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 

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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 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. 

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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. 

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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 

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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], 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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. 

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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 

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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 

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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 

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[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 

08/04/2015 05:01 PM EDT 2-271 
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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 

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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 

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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. 

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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 

131.3 and 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 

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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. 

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[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 

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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, 

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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 

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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 

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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 

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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 

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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 

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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." 

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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): 

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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 better
 

served 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
 

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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 

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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 

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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. 

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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 

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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. 

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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 

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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 2-314 
Chapter 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 2-315 
Chapter 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 

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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 

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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. 

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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. 

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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 

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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. 

2.0 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. 

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 should 

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 

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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 

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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 

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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 

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Chapter 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 

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Chapter 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 

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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 

08/04/2015 05:01 PM EDT 2-332 
Chapter 2 - Comment Documents Designated Uses 

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 

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Chapter 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 subcategories 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. 

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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 

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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, subcategories and location-specific uses has the potential to allow for much needed flexibility that is particularly important 

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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 

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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 

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Chapter 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 should 

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 

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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 

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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 subcategory 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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5.f.i 

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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. 

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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 

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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 

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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 impairments 

more 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 

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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 

08/04/2015 05:01 PM EDT 2-354 
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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 subcategories 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 

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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 

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Chapter 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 

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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 with 

the 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 

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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 2-362 
Chapter 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 

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5.i 

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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 

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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 

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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 

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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 

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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 sub08/04/2015 05:01 PM EDT 2-368 
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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 

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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 

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Chapter 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. 

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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, 

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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 

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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 subcategory 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 

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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 

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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. 

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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 

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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 current 

and 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 

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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. 

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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): 

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5.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 

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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 

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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 

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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 caseby-case decision-making. 

Response 

For response to this comment, see the following response essay(s): 

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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 

131.10 Designation 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. 

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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 

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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: 

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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 2-389 
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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. 

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[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 

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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. 

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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 

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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. 

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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-ExistingRule-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): 

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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 2-397 
Chapter 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. 

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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. 

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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] 

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[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 

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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 shortsighted 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 

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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 

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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 section 

131.10(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 

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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 

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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 and 

provides 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 

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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 

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Chapter 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] 

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[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 

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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 and 

provides 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 

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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 

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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 

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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 

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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, 

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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 

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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 

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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. 

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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 

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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 

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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 

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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 

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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, 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 the 

segment 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 

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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; 

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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 

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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. 

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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 

08/04/2015 05:01 PM EDT 2-458 
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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 

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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 

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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 

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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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