# 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

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This document is part of a larger document

.Chapter 3 – Response Essays 1.a – Gen eral Support



## Essay **1.a – Gen**  **eral 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 t he core components of the WQS regulation, last substantively revised in 1983, establish ed 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 ef fluent 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

n ecessary, (2) designated uses, (3) triennial reviews, (4) antidegradat ion, (5) WQS variances, and (6) permit compliance schedule authorizing provisions (CSAP s)

. 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 eff ective 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 iss ue category include supplementa l /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 inter fere with EPA’s approval of current or future state and tribal WQS. H owever, 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 rulemaki ng 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) Admin istrator’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 toChapter 3 – Response Essays 1.a – Gen eral Support

communicate openly with states and authorized tribes on concerns regarding W QS 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 plac e 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 triennia l review requirements to explain the role of new or updated CWA s ection 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 s ection 304(a) criteria recommendations whe n conducting triennial reviews.

(4) Antidegradation: The final rule establishes stronger antidegradation re quirements 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 spec ific 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 var iances that provides regulatory certainty to states, authorized tribes, the regulated community
, and the public in making progress toward attain ing designated uses.

(6) CSAP s : 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.Chapter 3 – Response Essays 1.b – Gen eral 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) antidegradat ion, (5) WQS variances, and (6) pe rmit 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 are as, resulting in clear er 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 sup plementa l /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 i n 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 rev isions 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.Chapter 3 – Response Essays 1.b – Gen eral 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 upset s 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 t o the revision at Title 40 of the Code of Federal Regulations (CFR) S ection 131 .22(b) without additional explanation, see EPA’s response to code 4.b.

With regard to the commenters requesting that EPA m ake clear that EPA’s actions are directly tied to CWA s ection 303(c), see EPA’s response to code 4.c.

With regard to the commenters alleging that the revisions will lead to increase d litigation ; are new litigable duties on states
, authorized tribes, and the regulated community; and are inconsistent with the

re quirements of the CWA
, see EPA’s response s 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 reflec t 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 response s to codes 7.e.ii and 8.f.i.

With regard to the commenters requesting that the option of a p ollutant m inimization 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 Schedu les 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 resou rces 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 commente rs 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 t o the proposed rule and included in the docket on September 4, 2013 (see document EPA

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. 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.Chapter 3 – Response Essays 1.b – Gen eral Opposition

Comments regarding more effectiv e use of total maximum daily load s (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 P art 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. T his document is the detailed written response to
comments

.Chapter 3 – Response Essays 1.c – Other Gen era l



## 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 sig nificant 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 ra ised by states, authorized tribes
, and stakeholders as areas of concern

. 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 th e 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 implementati on issues in these key areas, resulting in clear er 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 discussio n 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 sup plementa l /introductory information provided by commenters with out 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 respon se 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

r evised 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, se e 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, suggestion s that EPA work directly with deficient states rather than complet ingChapter 3 – Response Essays 1.c – Other Gen era l

this rul emaking , 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 increase d litigation and are inconsistent with or contrary to the requirements of the CWA, see EPA’s response s 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, antidegra da tion, and varia nces, 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 discus sion 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 concer n 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

- 10 1(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

.Chapter 3 – Response Essays 1.c – Other Gen era l



### C. Outside the **Scope of This**  **Rulemaking**
With regard to the comment s related to municipal separate storm sewer systems ( MS4s ) , municipal
stormwater , watershed plans
, and integ rated planning for wastewater and stormwater, neither the propose d rule nor the final rule included regulatory revisions related to the se issue s . Thus, these issue s
are outside the scope of this rulemaking.

With regard to the commenter alleging that the pr oposed 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 t he 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) complian ce 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 13 1. 21 or the method by which EPA reviews and approves or disapproves new or revised WQS . T hus
, 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 an d 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 rule making 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.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.i ii 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 ).