CHAPTER 3 

Issue Category: Overall Rule 

Pages 3-1 – 3-9 

Response to Public Comments

Water Quality Standard Regulatory Revisions

August, 2015

40 CFR Part 131

Docket #: EPA-HQ-OQ-2010-0606

This document is part of a larger document.
Chapter 3 – Response Essays 1.a – General Support

Essay 1.a – General Support

A. General

The U.S. Environmental Protection Agency (EPA) acknowledges and appreciates the support expressed 

by commenters for the revisions to the key program areas included in this rulemaking, which updates 

the water quality standards (WQS) regulation at Title 40 of the Code of Federal Regulations (CFR) Part 

131 and implements the Clean Water Act (CWA). EPA reiterates that the core components of the WQS

regulation, last substantively revised in 1983, established a strong foundation for water quality 

management programs, including water quality assessments, impaired waters lists, and total maximum 

daily loads (TMDLs), as well as for water quality-based effluent limits (WQBELs) in National Pollutant 

Discharge Elimination System (NPDES) permits and state or authorized tribal certifications under CWA 

section 401. Over time, diverse and complex challenges have arisen and necessitated the revision of 

requirements in six program areas: (1) Administrator’s determination that new or revised WQS are 

necessary, (2) designated uses, (3) triennial reviews, (4) antidegradation, (5) WQS variances, and 

(6) permit compliance schedule authorizing provisions (CSAPs). Together the revisions to these program 

areas provide a better-defined, transparent pathway for states and authorized tribes to improve water 

quality and protect high quality waters; improve the WQS regulation’s effectiveness to achieve the goals 

of the CWA; and promote meaningful public engagement at the state, tribal, and local levels. The 

revisions in this rulemaking address and resolve implementation issues in these key areas, resulting in 

clear requirements, greater public transparency, and more effective WQS implementation. See also the 

discussion in section I.C of the preamble to the final rule with regard to the above and with regard to 

comments on water resiliency and accountability to the public. 

Some comment excerpts in this GENERAL SUPPORT issue category include supplemental/introductory 

information provided by commenters without information, criticism, or suggestions pertaining 

specifically to any elements contained in EPA's proposed rule. As such, they are not considered to be 

substantive or significant comments on the proposed rule itself and, therefore, do not require 

responses. With regard to the commenters that indicate that their letters contain specific comments on 

the proposed rule, see the relevant essays of this comment response document for responses to the 

substantive comment excerpts.

EPA considered all input received during the public comment period and used it to inform the relevant 

sections of the final rule. With regard to the comments related to the length of the comment period, see 

EPA’s response to code 2.a. See also the final rule requirements and the discussion of requirements and 

associated flexibilities in the preamble to the final rule. EPA acknowledges the comments that 

commenters do not expect the proposed rule to interfere with EPA’s approval of current or future state 

and tribal WQS. However, states and authorized tribes should review the final rule to ensure that their 

WQS meet the final rule requirements. Comments regarding potential indirect effects of this rulemaking 

on regulated industries and point-source discharges of pollutants are outside the scope of this 

rulemaking, as this final rule only directly regulates states and authorized tribes.

EPA reiterates that the final rule accomplishes the following:

(1) Administrator’s determination: The final rule clarifies what constitutes an Administrator’s 

determination that new or revised WQS are necessary. This revision supports EPA’s ability to 

3-1
Chapter 3 – Response Essays 1.a – General Support

communicate openly with states and authorized tribes on concerns regarding WQS prior to considering 

an Administrator’s determination.

(2) Designated uses: The final rule refines how states and authorized tribes assign and revise designated 

uses for individual water bodies. This revision will ensure that appropriate WQS are in place to help 

restore and maintain robust aquatic ecosystems and promote resilience to the anticipated effects of 

climate change, extreme weather events, and other emerging stressors to water quality.

(3) Triennial review: The final rule clarifies the triennial review requirements to explain the role of new 

or updated CWA section 304(a) criteria recommendations in the development of WQS by states and 

authorized tribes and to clarify the scope of WQS that must be reviewed triennially (i.e., all “applicable” 

WQS). This revision ensures that there is transparency in how states and authorized tribes consider 

EPA’s CWA section 304(a) criteria recommendations when conducting triennial reviews.

(4) Antidegradation: The final rule establishes stronger antidegradation requirements to enhance 

protection of high quality waters and to promote public transparency. The new requirements create a 

more structured process for identifying high quality waters and specifying the type of analysis that is 

required before a state or authorized tribe allows degradation of high water quality.

(5) WQS variances: The final rule adds new regulatory provisions to promote the appropriate use of 

WQS variances. A WQS variance is a time-limited designated use and an associated criterion for a 

specific pollutant(s) or water quality parameter(s). EPA has long recognized WQS variances as an 

available tool under the CWA, but the lack of specificity in rule has led to their limited use. This rule lays 

out a comprehensive regulatory structure for WQS variances that provides regulatory certainty to 

states, authorized tribes, the regulated community, and the public in making progress toward attaining 

designated uses.

(6) CSAPs: The final rule clarifies that a state or authorized tribe must adopt, and EPA must approve, a 

permit CSAP prior to authorizing the use of schedules of compliance for WQBELs in NPDES permits. This 

revision ensures that any delay in compliance with a WQBEL pursuant to an appropriately issued permit 

compliance schedule (CS) is consistent with the applicable WQS and the Act.

3-2
Chapter 3 – Response Essays 1.b – General Opposition 

Essay 1.b – General Opposition

A. General

The U.S. Environmental Protection Agency (EPA) acknowledges the comments and concerns expressed 

in opposition to this rulemaking. EPA appreciates the comments and feedback received on this rule and 

agrees that the revisions included in this rulemaking are critically important. EPA disagrees with the 

requests to withdrawal the proposed rule or not to proceed with finalizing the revisions to the six key 

areas included in the proposed rule. In the final rule, EPA updates the requirements in six program 

areas: (1) Administrator’s determination that new or revised water quality standards (WQS) are 

necessary, (2) designated uses, (3) triennial reviews, (4) antidegradation, (5) WQS variances, and 

(6) permit compliance schedule authorizing provisions (CSAP). Together the updates to these areas 

provide a better-defined, transparent pathway for states and authorized tribes to improve water quality 

and protect high quality waters; improve the WQS regulation’s effectiveness to achieve the goals and 

requirements of the Clean Water Act (CWA); and promote meaningful public engagement at the state, 

tribal, and local levels. The revisions in this rulemaking address and resolve implementation issues in 

these key areas, resulting in clearer requirements, greater public transparency, and more effective WQS 

implementation. EPA disagrees with the comments that the revisions in this rulemaking lack clarity. For 

a discussion of the clarity provided by these revisions, see section I.C of the preamble to the final rule 

and section II.C of the preamble to the proposed rule. With regard to the commenters concerned that 

some revisions in this rulemaking are inconsistent with the goals and/or requirements of the CWA, see 

section II of the preamble to the final rule.

Some comment excerpts in this GENERAL OPPOSITION issue category include 

supplemental/introductory information provided by commenters without information, criticism, or 

suggestions pertaining to any elements contained in EPA's proposed rule. As such, they are not 

considered to be substantive or significant comments on the proposed rule itself and, therefore, do not 

require responses. With regard to the commenters that indicate that their letters contain specific 

comments on the proposed rule, see the relevant essays of this comment response document for 

responses to the substantive comment excerpts.

With regard to the commenters concerned that aspects of the proposed rule will be difficult or 

impossible for states and authorized tribes to implement, EPA considered all input received during the 

public comment period and used it to inform the relevant sections of the final rule. See the final rule 

requirements and the discussion of requirements and associated flexibilities in the preamble to the final 

rule, as well as responses to comments throughout the record for this rulemaking that address issues 

related to implementation of the final rule requirements. 

B. Other

With regard to statements expressing general support for revisions in this rulemaking, see EPA’s 

response to code 1.a.

With regard to the comments related to the public participation conducted on this rulemaking, see 

EPA’s response to code 2.d.

3-3
Chapter 3 – Response Essays 1.b – General Opposition 

With regard to the commenters urging EPA to withdraw the proposed rule because they think it is 

unauthorized, unnecessary, or does not achieve its stated purpose, see EPA’s response to code 3.a.

Some commenters requested that EPA delineate its authority for revising the requirements applicable 

for the six key areas included in the proposed rule. Some commenters expressed concern with the title 

and scope of the proposed rule. Some commenters alleged that the proposed rule upsets the 

partnership envisioned by the CWA related to states’ and authorized tribes’ primary role to set WQS. 

Some commenters also commented that the proposed revisions do not sufficiently or comprehensively 

address current challenges. With regard to these comments, see EPA’s response to code 3.a.

With regard to the commenters expressing general opposition to the revision at Title 40 of the Code of 

Federal Regulations (CFR) Section 131.22(b) without additional explanation, see EPA’s response to code 

4.b.

With regard to the commenters requesting that EPA make clear that EPA’s actions are directly tied to 

CWA section 303(c), see EPA’s response to code 4.c.

With regard to the commenters alleging that the revisions will lead to increased litigation; are new 

litigable duties on states, authorized tribes, and the regulated community; and are inconsistent with the 

requirements of the CWA, see EPA’s responses to codes 4.e, 5.e, 5.k, 6.b, 6.f, 6.g, 6.h, 7.m, 8.m, and 9.e

as well as the discussion in section II of the preamble to the final rule.

With regard to the commenter discussing revisions to WQS that fail to reflect conditions in the arid 

west, see EPA’s response to code 6.g.

With regard to the commenters discussing best management practices (BMPs), see EPA’s responses to 

codes 7.e.ii and 8.f.i.

With regard to the commenters requesting that the option of a pollutant minimization program (PMP)

be added to section 131.14, see EPA’s response to code 8.g.ii.

With regard to the commenters suggesting that all aspects of the memorandum from James A. Hanlon, 

EPA, to Alexis Strauss, EPA Region 9, Re: Compliance Schedules for Water Quality-Based Effluent 

Limitations in NPDES Permits (May 10, 2007) should be incorporated into the final rule at 40 CFR Part 

131, see EPA’s response to code 9.d.

With regard to the commenters concerned with the additional staff or other resources necessary for 

states and authorized tribes to shepherd proposed regulatory changes through their regulation 

development procedures and/or implement the regulatory requirements included in this rulemaking, 

see EPA’s response to code 12.a.

Some commenters requested that EPA publish draft estimates of the economic burden on states and 

municipalities associated with the proposed rule and consider independent cost estimates. EPA’s 

economic analysis (EA) for the proposed rule was summarized in the preamble to the proposed rule and 

included in the docket on September 4, 2013 (see document EPA-HQ-OW-2010-0606-0099). See also 

EPA’s Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule) in the docket

for this rule. With regard to the comments suggesting that EPA consider independent cost estimates, 

see EPA’s response to code 12.c. With regard to the commenters expressing general concern about 

burden, cost, and resources, see EPA’s response to code 12.a.

3-4
Chapter 3 – Response Essays 1.b – General Opposition 

Comments regarding more effective use of total maximum daily loads (TMDLs) for impaired waters and 

remedying past releases of hazardous substances are outside the scope of this rulemaking, as this final 

rule only directly addresses EPA’s WQS rule at 40 CFR Part 131. 

With regard to the commenter requesting a detailed written response to comments prior to issuance of 

the final rule, EPA is required to make its response to comments available at the time the final rule is 

signed by the EPA Administrator for publication. This document is the detailed written response to 

comments. 

3-5
Chapter 3 – Response Essays 1.c – Other General 

Essay 1.c – Other General

A. General

The U.S. Environmental Protection Agency (EPA) acknowledges and appreciates the general support 

provided by commenters on this rulemaking and acknowledges the comments and concerns expressed 

in opposition to this rulemaking. With regard to the commenters suggesting that this rulemaking 

establishes significant hurdles and roadblocks that will discourage environmental progress, EPA 

disagrees. Some commenters expressed concern about the level of uncertainty in the proposed rule. 

The final rule provides targeted revisions to six key areas that have been raised by states, authorized

tribes, and stakeholders as areas of concern. Together the updates to these areas provide a betterdefined, transparent pathway for states and authorized tribes to improve water quality and protect high 

quality waters; improve the water quality standards (WQS) regulation’s effectiveness to achieve the 

goals of the Clean Water Act (CWA); and promote meaningful public engagement at the state, tribal, 

and local levels. The revisions in this rulemaking address and resolve implementation issues in these key 

areas, resulting in clearer requirements, greater public transparency, and more effective WQS 

implementation. EPA disagrees with the comments that the revisions in this rulemaking lack clarity and 

introduce confusion. For a discussion of the clarity provided by these revisions, see section I.C of the 

preamble to the final rule and section II.C of the preamble to the proposed rule.

Some comment excerpts in this OTHER GENERAL issue category include supplemental/introductory 

information provided by commenters without information, criticism, or suggestions pertaining to any 

elements contained in EPA's proposed rule. As such, they are not considered to be substantive or 

significant comments on the proposed rule itself and, therefore, do not require responses. With regard 

to the commenters that indicate that their letters contain specific comments on the proposed rule or 

highlight specific program areas to which their comments apply, see the relevant essays of this 

comment response document for responses to those substantive comment excerpts. With regard to the 

commenters that reference or incorporate comments of another organization by reference, see the 

relevant essays of this comment response document for responses to the substantive comment excerpts 

of those referenced comment letters.

In developing this final rule, EPA considered all input received during the public comment period and 

used it to inform the relevant sections. Some comments highlighted the importance of flexibility in the 

revised regulations to allow states and authorized tribes to accommodate the approaches that have 

proven effective in each state or tribal land. See the final rule requirements and the discussion of 

requirements and associated flexibilities in the preamble to the final rule. For a discussion of the 

environmental issues addressed by the final regulatory revisions, see section I.C of the preamble to the 

final rule.

With regard to the comments related to the public participation conducted on this rulemaking, see 

EPA’s response to code 2.d.

B. Other

With regard to the comments related to the scope and title of this rule, states’ and authorized tribes’ 

primary role to set WQS, suggestions that EPA work directly with deficient states rather than completing

3-6
Chapter 3 – Response Essays 1.c – Other General 

this rulemaking, and statements that there is no apparent urgent need for the proposed revisions, see 

EPA’s response to code 3.a.

With regard to the commenter concerned that proposed federal rules governing Administrator 

determinations could limit EPA regional efforts to clarify the need for new state or tribal water quality 

criteria, see EPA’s response to code 4.b.

With regard to the commenters alleging that the revisions will lead to increased litigation and are 

inconsistent with or contrary to the requirements of the CWA, see EPA’s responses to codes 4.e, 5.e, 5.k,

6.b, 6.f, 6.g, 6.h, 7.m, 8.m, and 9.e as well as the discussion in section II of the preamble to the final rule.

With regard to the comments concerning use removals and variances for non-101(a)(2) uses, see EPA’s 

responses to codes 5.h, 8.c, and 8.g.iv.

With regard to the commenter concerned with EPA’s authority to propose certain revisions related to 

designated uses, antidegradation, and variances, see EPA’s response to codes 5.k, 7.m, and 8.m.

With regard to the commenter concerned with federal oversight of both water quality criteria and 

implementation provisions to ensure water quality improvement, see EPA’s response to code 6.g for a 

discussion of EPA’s oversight authority.

With regard to the commenters expressing concern about the antidegradation minimum elements 

discussed in the preamble to the proposed rule, see EPA’s response to code 7.g.ii.

With regard to the comments about the proposed use of the term “ensure” in section 131.12(a)(2), see 

EPA’s response to code 10.a.

With regard to the commenters expressing general concern about burden, cost, and resources, see 

EPA’s response to code 12.a.

With regard to the commenters expressing concern about the economic analysis (EA), see EPA’s 

response to code 12.b.

With regard to the commenters confused between the terms “uses” and “designated uses,” see the 

discussion in section II.B in the preamble to the final rule as well as the definition of existing use at 

section 131.3(e) and designated use at section 131.3(f). See also the definitions included in the final rule 

for highest attainable use (HAU) at section 131.3(m) and non-101(a)(2) use at section 131.3(q). EPA 

acknowledges that the terms “beneficial use” and “designated use” are used interchangeably by EPA 

and many states and authorized tribes. 

EPA acknowledges the comment recommending that, for future rule revisions, EPA include the full text 

of the regulation including the proposed regulatory changes, rather than only including the revised 

provisions. However, EPA is not required to include the text of provisions that are not proposed to be 

added or revised, nor wishes to do so in order to keep the rule language section brief and more 

accessible. 

3-7
Chapter 3 – Response Essays 1.c – Other General 

C. Outside the Scope of This Rulemaking

With regard to the comments related to municipal separate storm sewer systems (MS4s), municipal 

stormwater, watershed plans, and integrated planning for wastewater and stormwater, neither the 

proposed rule nor the final rule included regulatory revisions related to these issues. Thus, these issues 

are outside the scope of this rulemaking.

With regard to the commenter alleging that the proposed rule provided an opportunity for comment on 

the entirety of Title 40 of the Code of Federal Regulations (CFR) Part 131, rather than the six key areas in 

this rulemaking, EPA generally disagrees, as the proposed rule at 78 FR 54521 (September 4, 2013) 

requested “comment on regulatory revisions in the following six key issue areas: (1) Administrator's 

determination that new or revised WQS are necessary, (2) designated uses, (3) triennial reviews, (4) 

antidegradation, (5) WQS variances, and (6) compliance schedule authorizing provisions.” EPA’s 

proposed rule also requested comment on “Other Changes” the Agency included as part of its effort to 

clean up and streamline the rule.

With regard to the commenters suggesting that EPA allow automatic approval of new or revised state 

and tribal WQS that are more stringent than the previous state or tribal WQS, neither the proposed rule 

nor the final rule contemplated changes to section 131.21 or the method by which EPA reviews and 

approves or disapproves new or revised WQS. Thus, this issue is outside the scope of this rulemaking.

With regard to the comments related to climate change, neither the proposed rule nor the final rule 

contemplated regulatory changes to specifically address climate change, although EPA anticipates that 

implementation of the final rule will result in waters being more resilient to climate change. 

Nevertheless, this issue is outside the scope of this rulemaking. For a discussion of the environmental 

issues addressed by the final regulatory revisions, see section I.C of the preamble to the final rule.

EPA acknowledges the comment related to the work of Washington tribes as the State of Washington 

considers revising and implementing Washington’s human health criteria. Neither the proposed rule nor 

the final rule included regulatory revisions related to water quality criteria. Further, neither the 

proposed rule nor the final rule contemplated promulgating federal WQS applicable to state or tribal 

waters. Thus, this issue is outside the scope of this rulemaking. However, consistent with EPA's April 

2014 and December 2014 letters to the Washington Department of Ecology, EPA acknowledges that it 

has initiated a separate rulemaking process to revise the current federal CWA human health criteria 

(under section 131.36) applicable to waters under the State of Washington’s jurisdiction to ensure that 

the criteria are set at levels that will adequately protect Washington residents, including Native 

Americans with treaty-protected rights, from exposure to toxic pollutants.

3-8
Chapter 3 – Response Essays 1.d – Form Letter 1

Essay 1.d – Form Letter 1

The U.S. Environmental Protection Agency (EPA) acknowledges the comments and concerns expressed 

in the mass comment campaign letter related to the Water Quality Standards Regulatory Clarifications; 

Proposed Rule. This mass comment campaign resulted in 2,567 exact copies and an additional 10 

comment letters that provided similar, but not identical, comments. Responses to the substance of 

these comments are provided in the other relevant sections of EPA’s Response to Comments document.

See also: response Essays 6.a, 6.c, 6.d, 6.f, and 6.h for responses related to triennial reviews; response 

Essay 7.a and 7.d.iii for responses related to antidegradation; response Essay 8.b for responses related 

to water quality standard (WQS) variances; and response Essay 9.b for responses related to compliance 

schedules (CS) and compliance schedule authorizing provisions (CSAPs). 

3-9