# CHAPTER 2 Issue Category: Triennial Reviews

Pages 2-463 – 2-5 65

Respo nse to Public Comments

Water Quality Standard s Regulatory Revisions

August 2015

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

This document is part of a larger document .Chapter 2 - Comment Documents Triennial Reviews 

# 6 - TRIENNIAL REVIEWS No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.


# 6.A - TRI - GEN SUPP Comment ID 0121-A1.001.004
Author Name: Whirley Gregory Organization: Virginia Department of Transportation (3)Requirements of Triennial Reviews - §131.20(a) Language was added to amend §131.20(a) to require that a State "shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected." DEQ is currently in the process of its triennial review rulemaking to adopt, update or cancel water quality standards, which takes into consideration federal recommendations and guidance when evaluating criteria. It is our understanding that the 304(a) criteria recommendations are considered as part of the DEQ triennial review process, and thus this change is not likely to either substantively change current implementation of the program or cause an undue burden on VDOT.
Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 

# Comment ID 0129-A2.001.008
Author Name: Steidel Robert Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc. 3. Requirements of Triennial Review VAMWA supports EPA's clarification that the Triennial Review process by the state must determine whether any state criteria should be revised in light of new or revised EPA water quality criteria developed by the Agency under CWA section 304. We believe this is consistent with the CWA and reflects the current practice of most of the states. In particular, we support and ask that the Agency retain its proposed "to assure that designated uses continue to be protected" language, 40 CFR § 131.20(a) (proposed), because it correctly characterizes the CWA standard applicable

08/04/2015 05:01 PM EDT 2-463Chapter 2 - Comment Documents Triennial Reviews to the states, and it provides valuable context to the requirement.
Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 6.f 

# Comment ID 0147-A2.001.007
Author Name: Gaskin David Organization: Nevada Division of Environmental Protection Proposed Revisions to: § 131.20 State review and revision of water quality standards Nevada is supportive of the proposed language changes as long as the regulation does not require that every waterbody and water quality standard be reviewed every 3 years.
Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 6.a: Section B 6.g 

# Comment ID 0150-A1.001.007
Author Name: Heisig-Mitchell Jamie Organization: Hampton Roads Sanitation District Requirements of Triennial Review HRSD supports EPA's clarification that the Triennial Review process by the state must determine whether any state criteria should be revised in light of new or revised EPA water quality criteria developed by the Agency under CWA section 304. HRSD believes this is consistent with the CWA and reflects the current practice of most of the states. In particular, HRSD supports and asks that the Agency retain its proposed "to assure that designated uses continue to be protected" language, 40 CFR § 131.20(a) (proposed), because it correctly characterizes the CWA standard applicable

08/04/2015 05:01 PM EDT 2-464Chapter 2 - Comment Documents Triennial Reviews to the states, and it provides valuable context to the requirement.
Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 6.a: Section B 6.f 

# Comment ID 0182-A2.001.007
Author Name: Hahn Martha Organization: The Colorado Wastewater Utility Council III. Triennial Reviews The proposed rule does not appear that it will have any impact on Colorado's current triennial review process. The CWWUC supports EPA's proposal to clarify that new or updated 304(a) criteria be considered in triennial reviews to ensure that designated uses continue to be protected.
Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 

# Comment ID 0191-A2.001.009
Author Name: Hirst Barbara Organization: New Jersey Department of Environmental Protection Triennial Review and Revision of Water Quality Standards (WQS): Public participation and transparency in the WQS review and adoption processes play a very important role in protecting the nation's waters, and that all public comments should be addressed in each review. NJDEP has a robust process for involving the public in rule making. It may include a stakeholder process, solicitation of public comments on proposed actions, public hearings, and a response to public comments. The state rule making process, including the public participation component, can take a significant amount of time and can even span the entire three year cycle envisioned in the triennial review process. This makes the requirement to review and revise the entire WQS every three years extremely challenging and resource intensive.

08/04/2015 05:01 PM EDT 2-465Chapter 2 - Comment Documents Triennial Reviews Therefore, it is suggested that EPA acknowledge this practical limitation and encourage regions to communicate with states to identify the priority areas that should be addressed in each triennial review. New Jersey appreciates open communication with EPA Region 2 when embarking on each triennial review. The regulatory language addressing state review and revision to WQS at 40 CFR § 131.20 is supported as long as the regulation does not require that every water body and water quality standard has to be addressed in every 3-year review.
Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 6.a: Section B 6.g 

# Comment ID 0192-A1.001.008
Author Name: Reeder Thomas Organization: North Carolina Department of Environment and Natural Resources IV. State Review and Revision of Water Quality Standards NC DWR supports state review and revision to WQS at 40 CFR § 131.20. We request clarity in the language to specify that this regulation does not require that every water body and water quality standard has to be addressed in every 3
- year review. NC DWR consistently seeks active public participation and transparency in the WQS review. The state requests flexibility in how it prioritizes review of its waters and applicable standards and also flexibility in addressing public comments received during this process. As resources decline and water quality issues rise, responding to each comment is not always realistic. Additionally, NC DWR has acknowledged the hurdles in getting changes to WQS through their administrative and legal processes, and delays by EPA in approving or disapproving water quality standard submissions adds to the obstacles we face in accomplishing timely comprehensive review of our standards.
Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 6.a: Section B 6.g 

# Comment ID 0193-A2.001.006

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Author Name: Biggs Barbara Organization: Metro Wastewater Reclamation District III. Triennial Reviews The proposed rule does not appear that it will have any impact on Colorado's current triennial review process.
Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 

# Comment ID 0199-A1.001.007
Author Name: Rogers Gilbert Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 3) Requirements of Triennial Reviews EPA is proposing to amend 40 CFR § 131.20(a) to require states or tribes to consider any new or updated CWA § 304(a) criteria during triennial reviews of WQS. The proposed revision does not require states or tribes to actually implement EPA's § 304(a) criteria, but it does require them to at least consider the criteria and updates. We support this proposed revision and furthermore recommend that EPA strengthen this proposal to better protect water quality.
Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 6.a: Section B 6.e 

# Comment ID 0223-A1.001.005
Author Name: Lindekugel Buck Organization: Grassroots Attorney on behalf of Southeast Alaska Conservation Council

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II. Requirements for Triennial Review EPA is proposing to amend its triennial review provisions at 40 CFR 131.20 to clarify that a state is required to re
examine all its water quality criteria during its triennial review to determine if any criteria should be revised in light of new or updated criteria recommendations. SEACC generally supports this proposal because we agree that it is important that states consider new or updated 304(a) criteria as part of their triennial review.

Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 

# Comment ID 0230-A1.001.010
Author Name: Ettinger Albert Organization: One of the counsel for the Environmental Law and Policy Center et al. Triennial Review - States should consider new 304(a) criteria (78 FR 54525) & improve implementation of Triennial Review In this section, EPA is proposing to amend the triennial review requirements to clarify that a state must reexamine its water quality criteria during its triennial review to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria. We support this modest proposal to require states to consider changes to standards for which EPA has published new criteria pursuant to 304(a) since the state's last review. For example, as part of their next review states should consider their ammonia criteria in light of the new EPA ammonia criteria. To this end, EPA should not approve water quality standards proposal packages for changes from states that do not contain a record showing that the state also properly considered changes to standards for which EPA has proposed new or revised criteria since the last triennial review. Also, where a state has failed to consider new EPA criteria, EPA should make a determination that a new or modified standard is necessary for that state.
Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 6.a: Section B 

# Comment ID 0256-A2.001.008

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Author Name: Shepherd Hal Organization: The Center for Water Advocacy V. Requirements for Triennial Review CWA generally supports this proposal because we agree that it is important that states consider new or updated 304(a) criteria as part of their triennial review. Alaska's inadequate fish consumption value provides a critical example of a situation where states retain criteria in their WQS that are no longer protective of designated uses for multiple triennial review cycles. For example, despite repeated requests from CWA (in 2011 and again in 2012) and others for the State of Alaska to update its fish consumption value, Alaska continues to determine the human health criteria for consumption of seafood based on the default EPA level of 6.5g/day/person/year. [FN3] This criterion is inadequate to protect most Alaskans. [FN3] http://water.epa.gov/scitech/swguidance/fishshellfish/fishadvisories/upload/day1l.pdf)
Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 6.a: Section B 

# Comment ID 0261-A2.001.017
Author Name: Bartlett Drew Organization: Florida Department of Environmental Protection VII. Proposed Revisions to § 131.20 (State review and revision of water quality standards). States should continue to have the flexibility to prioritize review of its water quality standards. We support the continuation of review every 3 years as the definition of "periodically."
Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 6.a: Section B 6.g

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# Comment ID 0264-A2.001.021
Author Name: Chard-McClary Shellie Organization: Association of Clean Water Administrators IV. State Review and Revision of Water Quality Standards ACWA is supportive of the regulatory language addressing state review and revision to WQS at 40 CFR § 131.20, as long as the regulation does not require that every waterbody and water quality standard has to be addressed in every 3- year review. We agree that public participation and transparency in the WQS review and adoption processes play a very important role in protecting the nation's waters, and that all public comments should be addressed in each review. However, as resources decline and water quality issues rise, flexibility in how a state prioritizes review of its waters is critical.

Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A 6.a: Section B 6.g 

# Comment ID 0270-A1.001.004
Author Name: Todd Andrew Organization: Colorado Water Quality Control Commission III. Triennial Reviews The Commission supports a robust triennial review process and has found regular review of its water quality standards to be an opportunity to ensure that Colorado's waters are protected. During its triennial review process, the Commission evaluates whether to adopt new or revised water quality standards to ensure that designated uses are protected, and this commitment to regular reviews has provided strength and flexibility to the system. Colorado does not believe that the changes proposed by EPA will require any changes to our triennial review process.
Response For response to this comment, see the following response essay(s): 6.a

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6.a: Section A 

# Comment ID 0280-A2.001.018
Author Name: Aspatore Amanda Organization: National Mining Association Triennial Review Requirements NMA agrees that water quality standards should be reviewed and modified based on sound and defensible science.
Response For response to this comment, see the following response essay(s): 6.a 6.a: Section A


# 6.B - TRI - GEN OPP Comment ID 0133-A2.001.006
Author Name: Phillips Sanford Organization: Louisiana Department of Environmental Quality 3. Requirements for Triennial Review

a. LDEQ does not support revisions to the standards revision language; existing language is sufficient.
Response For response to this comment, see the following response essay(s): 6.b 6.b:Section A 

# Comment ID 0158-A1.001.037
Author Name: Goodmann Peter

08/04/2015 05:01 PM EDT 2-471Chapter 2 - Comment Documents Triennial Reviews Organization: Kentucky Division of Water 6) Procedures for Review and Revision of Water Quality Standards at §131.20 KDOW sees no use for adding the phrase "in particular" in the proposed WQS regulation at §131.20(a); currently the regulation requires such water body segments "shall be re-examined every 3 years." The proposed WQS regulation also adds: "Similarly, a State shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected." §131.20 requires States to review every three (3) years designated uses for waterbodies that do not include the uses specified §101(a)(2) of the Act. The proposal at §131.20(a) adds a new duty and burden on States to review their water quality standards criteria also, and it is reasonable to presume that EPA would require states to document such review and compare the review to EPA-issued §304(a) criteria recommendations. KDOW is concerned that EPA will interpret this language to require States to revise criteria for which EPA has issued §304(a) criteria recommendations for which the State has determined is not necessary.
Response For response to this comment, see the following response essay(s): 6.b 6.b:Section B 6.b:Section C 6.f 6.g 10.a 

# Comment ID 0166-A2.001.037
Author Name: Goodmann Peter Organization: Kentucky Division of Water 6) Procedures for Review and Revision of Water Quality Standards at §131.20 KDOW sees no use for adding the phrase "in particular" in the proposed WQS regulation at §131.20(a); currently the regulation requires such water body segments "shall be re-examined every 3 years." The proposed WQS regulation also adds: "Similarly, a State shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected." §131.20 requires States to review every three (3) years designated uses for waterbodies that do not include the uses specified §101(a)(2) of the Act. The proposal at §131.20(a) adds a new duty and burden on States to review their water quality standards criteria also, and it is reasonable to presume that

08/04/2015 05:01 PM EDT 2-472Chapter 2 - Comment Documents Triennial Reviews EPA would require states to document such review and compare the review to EPA-issued §304(a) criteria recommendations. KDOW is concerned that EPA will interpret this language to require States to revise criteria for which EPA has issued §304(a) criteria recommendations for which the State has determined is not necessary.
Response For response to this comment, see the following response essay(s): 6.b 6.b:Section B 6.b:Section C 6.f 6.g 10.a 

# Comment ID 0176-A2.001.009
Author Name: Lazarus Jay Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM) DPNM opposes any changes to existing paragraph (a) and proposed paragraph (b) of §131.20.
Response For response to this comment, see the following response essay(s): 6.b 6.b:Section A 6.d 

# Comment ID 0184-A2.001.009
Author Name: Curley Ed Organization: The Western Coalition of Arid States Comment 4: Requirements for Triennial Reviews Following is a summary of WESTCAS concerns with respect to the proposed revisions to 40 CFR Part 131.20 (a). Also presented are recommendations that would address the WESTCAS concerns. EPA is proposing to amend paragraph 131.20(a) to explicitly require a state (or tribe) to do an assessment during its

08/04/2015 05:01 PM EDT 2-473Chapter 2 - Comment Documents Triennial Reviews triennial review to determine if any of its water quality standards should be revised based on new criteria guidance issued by EPA pursuant to Section 304(a) of the Clean Water Act (CWA). WESTCAS is concerned about the potential that this revision to the regulation will provide an incentive for EPA, through either is regional offices or headquarters, to usurp the primacy of states and tribes with respect to the establishment of water quality standards.
Response For response to this comment, see the following response essay(s): 6.b 6.b:Section C 3.a 

# Comment ID 0209-A1.001.004
Author Name: Gilzow Floyd Organization: Missouri Public Utility Alliance 3. We believe that a requirement for a complete review of the science behind the state designated Beneficial Uses categories as a requirement of the Triennial Review is a waste of limited state resources with little or no environmental benefit.
Response For response to this comment, see the following response essay(s): 6.b 6.b:Section C 6.g 12.a 12.e 

# Comment ID 0262-A2.001.019
Author Name: Rawlings Laurent Organization: Home Builders Association of Kentucky Triennial Reviews (Section 131.20)

08/04/2015 05:01 PM EDT 2-474Chapter 2 - Comment Documents Triennial Reviews As they currently stand, triennial review regulations are almost irrealizable; nevertheless, EPA moves forward with a tendentious proposal, imposing further requirements of the Commonwealth. If any changes are made in this section, there should be a long expression in the single direction of public understanding. Rather than utilizing the vocabulary of the esoteric, EPA should use words small business owners have time to deal with and to which they can respond with confidence.

Response For response to this comment, see the following response essay(s): 6.b 6.b:Section A 6.b:Section B


# 6.C - TRI - REVIEW PROCESS Comment ID 0147-A2.001.008
Author Name: Gaskin David Organization: Nevada Division of Environmental Protection As part of our triennial reviews, Nevada identifies a range of water quality standard revisions needs. It is rare that all of the identified needs can be addressed in a 3-year period given our resource constraints. As a result, Nevada focuses on those revision activities that are deemed to be the most critical. In some cases, Nevada may implement multi-year monitoring to support a standards revision, thereby adding additional years to the review process.
Response For response to this comment, see the following response essay(s): 6.c 6.g 

# Comment ID 0189-A1.001.011
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, states/authorized tribes do not currently or consistently review their WQS on a 3-year basis despite the

08/04/2015 05:01 PM EDT 2-475Chapter 2 - Comment Documents Triennial Reviews requirement of Section 303(c) of the CWA.
Response For response to this comment, see the following response essay(s): 6.c 6.g 

# Comment ID 0189-A1.001.015
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 The CWA clearly provides that the entirety of a state's WQS is to be open for public review and comment, and where appropriate, modification, at a minimum of once every three years. Under the CWA, the public is to be allowed to participate in that comprehensive review and to make comments on the entirety of the WQS, including the potential need for changes or new WQS that a state may or may not have proposed. To that end, EPA should require that states consider changes to standards that are proposed by the public during the standards review process or during the state continuing planning process required under Section 303(e) of the CWA. This requirement would enable tribes without authorized WQS programs to recommend revisions that would be more protective of critical subsistence and traditional water resources.
Response For response to this comment, see the following response essay(s): 6.c 6.d 6.g 

# Comment ID 0195-A1.001.011
Author Name: Norton Ken Organization: National Tribal Water Council Triennial Review - States/Authorized Tribes should consider new 304(a) criteria States/authorized tribes do not currently or consistently review their WQS on a 3-year basis despite the requirement of Section 303(c) of the CWA. Often when they do review their standards, states will only consider those standards that

08/04/2015 05:01 PM EDT 2-476Chapter 2 - Comment Documents Triennial Reviews might be weakened to facilitate allowing more pollution from a favored industry. Those tribes with authorized WQS programs have little capacity to undertake a comprehensive review every three years, but the NTWC is not aware of any instance where an authorized tribe proposed a weakened standard or less protective use within their WQS through a triennial review process.
Response For response to this comment, see the following response essay(s): 6.c 6.g 

# Comment ID 0195-A1.001.014
Author Name: Norton Ken Organization: National Tribal Water Council The CWA clearly provides that the entirety of a state's WQS is to be open for public review and comment, and where appropriate, modification, at a minimum of once every three years. Under the CWA, the public is to be allowed to participate in that comprehensive review and to make comments on the entirety of the WQS, including the potential need for changes or new WQS that a state may or may not have proposed.
Response For response to this comment, see the following response essay(s): 6.c 6.d 6.g 

# Comment ID 0197-A1.001.008
Author Name: Garrison Naoh Organization: Natural Resources Defense Council EPA Should Use its Authority Under 33 U.S.C. § 1313 to Ensure that States Properly Review and Update Their Water Quality Standards In Accord With Clean Water Act Requirements States are required, through a public process, to establish WQS and submit them to EPA for approval. (33 U.S.C. § 1313(a).) Following their establishment, states are required to conduct a public process to review the WQS and, as appropriate, modify or adopt new standards no less than every three years. (33 U.S.C. § 1313(c); 40 C.F.R. § 131.20.)

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EPA is proposing to revise 40 C.F.R. § 131.20(a) to require states or tribes to consider any new or updated Clean Water Act § 304(a) (33 U.S.C. § 1314(a)) criteria during required triennial reviews. NRDC generally supports efforts to ensure that triennial reviews are conducted in a way that ensures that states' WQS are kept current with the best available scientific and technical information, and that meets the needs of each state's waters. In this regard, we note with concern that numerous states currently fail to meet their Clean Water Act obligation to conduct a review every three years.
Response For response to this comment, see the following response essay(s): 6.c 6.a 6.g 

# Comment ID 0201-A1.001.014
Author Name: Godfrey Mike Organization: Alabama Power Requiring States to take on these additional tasks during their triennial reviews would place additional financial burdens on them, as well as regulated entities-like Alabama Power- that participate in the review process. Triennial reviews are already a lengthy and complex process for both state agencies and public participants and are often constrained by the scarce state resources allocated for conducting them. Requiring additional "considerations" like the ones proposed in the Draft Rule will further strain this review process and therefore should be included only if absolutely necessary to carry out the requirements of the CWA. Furthermore, if EPA ultimately includes its proposals set out in the Draft Rule in its final regulations, the agency must pledge that it will do all it can to secure additional funding for States, through Congress or otherwise, so States have the resources necessary to sufficiently carry out each and every aspect of the required triennial reviews.
Response For response to this comment, see the following response essay(s): 6.c 6.b 6.g 12.a 

# Comment ID 0206-A1.001.008

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Author Name: Foster Kelly Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations III. Triennial Reviews (78 Fed. Reg. 54,525) Under CWA Section 303(c), states are required to hold public meetings for the purpose of reviewing the state's water quality standards and, as appropriate, for modifying and adopting standards at least every three years. 33 U.S.C. § 1313(c); 40 C.F.R. §§ 131.20(a) and (b). This process is referred to as a Triennial Review, and the results of the review are required to be submitted to EPA. Triennial Reviews are not merely a pro forma exercise. They are intended to ensure that a state is maintaining water quality standards that are adequate to protect human health and the environment, and that the most current scientific knowledge is being employed. According to the EPA Water Quality Standards Handbook, "[w]hen performing its triennial review, the State must evaluate what uses are being attained. If a water body is designated for a use that requires less stringent criteria than a use that is being attained, the State must revise the use on that water body to reflect the use that is being attained." [FN2] Triennial Reviews are also an important opportunity for the public and the regulated community to have input into the water quality standards process.
Despite this explicit mandate, many states are not meeting their obligation to review and revise their water quality standards every three years and, equally troubling, EPA has often failed to require these reviews or promulgate water quality standards in light of state intransigence. For example, North Carolina's Department of Environment and Natural Resources ("DENR") is already more than four years overdue in completing the triennial review of its water quality standards required by the CWA, and there is no end to the delay in sight. According to public statements made by the director of DENR's Division of Water Resources ("DWR"), Tom Reeder, DWR does not currently anticipate updating its water quality standards and codifying any new water quality criteria until the end of 2015 at the earliest. [FN3] The process of deciding whether to codify nutrient criteria is currently planned to extend even later, into 2020 at the earliest. [FN4] Similarly, many states improperly attempt to limit EPA and citizen review of water quality standards by only proposing minor changes to water quality standards, often related to standards that impact industry. States, like Minnesota and Washington, do not consider comments from the public on any issue that was not identified in their rulemaking notice, thereby precluding meaningful public participation and thorough evaluation of the state's water quality standards. EPA becomes complicit in this approach when it refuses to review any public comments that are unrelated to standards actually adopted by the state and fails to do its own review of the states' water quality standards for compliance with the CWA. The result is that many states have outdated and inadequate water quality standards that are difficult, if not impossible, for the public to address and meaningful review is avoided. [FN2] http://water.epa.gov/scitech/swguidance/standards/handbook/chapter02.cfm#section8,Section2.8. See also 40 CFR §131.10(i). [FN3] Public statement T. Reeder made on November 19, 2013. [FN4] Draft Nutrient Criteria Development Plan, available at: http://portal.ncdenr.org/web/wq/ps/mtu/nutrientcriteria

.

08/04/2015 05:01 PM EDT 2-4796.c Chapter 2 - Comment Documents Triennial Reviews Response For response to this comment, see the following response essay(s):
6.d 6.g 6.h 

# Comment ID 0215-A1.001.008
Author Name: Callaway Casi Organization: Mobile Baykeeper III. Triennial Reviews (78 Fed. Reg. 54,525) Under CWA Section 303(c), states are required to hold public meetings for the purpose of reviewing the state's water quality standards and, as appropriate, for modifying and adopting standards at least every three years. 33 U.S.C. § 1313(c); 40 C.F.R. §§ 131.20(a) and (b). This process is referred to as a Triennial Review, and the results of the review are required to be submitted to EPA. Triennial Reviews are not merely a pro forma exercise. They are intended to ensure that a state is maintaining water quality standards that are adequate to protect human health and the environment, and that the most current scientific knowledge is being employed. According to the EPA Water Quality Standards Handbook, "[w]hen performing its triennial review, the State must evaluate what uses are being attained. If a water body is designated for a use that requires less stringent criteria than a use that is being attained, the State must revise the use on that water body to reflect the use that is being attained." [FN2] Triennial Reviews are also an important opportunity for the public and the regulated community to have input into the water quality standards process.
Despite this explicit mandate, many states are not meeting their obligation to review and revise their water quality standards every three years and, equally troubling, EPA has often failed to require these reviews or promulgate water quality standards in light of state intransigence. For example, North Carolina's Department of Environment and Natural Resources ("DENR") is already more than four years overdue in completing the triennial review of its water quality standards required by the CWA, and there is no end to the delay in sight. According to public statements made by the director of DENR's Division of Water Resources ("DWR"), Tom Reeder, DWR does not currently anticipate updating its water quality standards and codifying any new water quality criteria until the end of 2015 at the earliest. [FN3] The process of deciding whether to codify nutrient criteria is currently planned to extend even later, into 2020 at the earliest. [FN4] Similarly, many states improperly attempt to limit EPA and citizen review of water quality standards by only proposing a few changes to water quality standards, often related to standards that impact industry. States, like Minnesota and Washington, do not consider comments from the public on any issue that was not identified in their rulemaking notice, thereby precluding meaningful public participation and thorough evaluation of the state's water quality standards. EPA becomes complicit in this approach when it refuses to review any public comments that are unrelated to standards

08/04/2015 05:01 PM EDT 2-480Chapter 2 - Comment Documents Triennial Reviews actually adopted by the state and fails to do its own review of the states' water quality standards for compliance with the CWA. The result is that many states have outdated and inadequate water quality standards that are difficult, if not impossible, for the public to address and meaningful review is avoided. [FN2] http://water.epa.gov/scitech/swguidance/standards/handbook/chapter02.cfm#section8 , Section 2.8. See also 40 CFR §131.10(i). [FN3] Public statement T. Reeder made on November 19, 2013. [FN4] Draft Nutrient Criteria Development Plan, available at: http://portal.ncdenr.org/web/wq/ps/mtu/nutrientcriteria

. Response For response to this comment, see the following response essay(s): 6.c 6.d 6.g 6.h 

# Comment ID 0272-A2.001.012
Author Name: Jennifer Chavez Janette Brimmer Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 III. TRIENNIAL REVIEW Triennial review is a core requirement of the Clean Water Act and critically necessary to ensuring that a state's water quality standards are kept current with the best scientific and technical thinking regarding water quality as well as the particular needs of a state's waters. Unfortunately, the system under EPA's current rules is broken with many states far behind on the adoption of protective or updated criteria and no way for citizens to meaningfully affect that problem. This section will first set forth the basic requirements relative to triennial review, then discuss the various ways that it is failing in the states, and then address the specifics of EPA's proposal and how it must be improved. A. Triennial Reviews Are An Obligation Of Both The States And EPA And Necessitate A Full Review Of All State Standards. 33 U.S.C. 1313(c) provides that whenever a state adopts a new or revised standard, the standard shall consist of the designated uses of the waters involved and the water quality criteria for such waters based upon the designated uses. Such 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

08/04/2015 05:01 PM EDT 2-481Chapter 2 - Comment Documents Triennial Reviews and also taking into consideration their use and value for navigation. Id. 40 C.F.R. 131.11 requires that states adopt those water quality criteria that protect the designated use and that such criteria must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect the designated use. See, also, 40 C.F.R. 131.5which provides that the U.S. Environmental Protection Agency (EPA) shall review state's WQS submission to determine, among other things, whether the state has adopted water uses which are consistent with the requirements of the Clean Water Act and whether the state has adopted criteria that protect the designated water uses. Under the Clean Water Act, states are required to establish WQS, subject to a public process, and submit them to the EPA for approval. 33 U.S.C. § 1313(a). Thereafter, from time to time, but not less than once every three-year period, the state shall hold public meetings for the purpose of reviewing the state's WQS and, as appropriate, for modifying and adopting standards. 33 U.S.C. § 1313(c) and 40 C.F.R. § 131.20(a) and (b). The three-year period is measured from the date of the letter in which the state informs EPA that revised or new standards have been adopted for EPA review or, if no changes were made, from the date of the letter in which the state informs EPA that the standards were reviewed and no changes made. Water Quality Standards Handbook: Second Edition, USEPA, Office of Water, EPA 823-8-94-005, August, 1994, section 6.1. Clearly, it is EPA's expectation that every three years all of a state's WQS are reviewed and EPA is to be informed of the results of that review, regardless of its outcome. EPA's Water Quality Standards Handbook further provides: in each three-year period, a state is to review the general provision of the standards for adequacy taking into consideration:

•new Federal or State statutes, regulations, or guidance;

•legal decisions involving application of standards; or • other necessary clarifications or revisions. Water Quality Standards Handbook: Second Edition, at section 6.1.3. Moreover, whenever a state reviews its WQS or adopts new standards, the state shall adopt criteria for all toxic pollutants listed pursuant to 33 U.S.C. § 1317(a)(1) for which criteria have been published by EPA under 33 U.S.C. § 1314(a), the discharge or presence of which could reasonably be expected to interfere with designated uses of the state's waters. 33 U.S.C. § 1313(c)(2)(B). See, also 40 C.F.R. § 131.11(2). The law clearly provides that the entirety of a state's WQS is to be open for public review and comment, and where appropriate, modification, at a minimum of once every three years. Id. Under the Clean Water Act, the public is to be allowed to participate in that comprehensive review and to make comments on the entirety of the WQS, including the potential need for changes or new WQS that a state may or may not have proposed. B. States And EPA Are Failing To Engage In Full Triennial Reviews In Accordance With The Clean Water Act. Triennial reviews have deteriorated such that they are no longer compliant with the Clean Water Act in a multitude of ways. First is the simple timing component. It is a rare state that actually reviews and revises its water quality standards as part of a full and meaningful public process every three years. The State of Washington's last true triennial review was in 2006 (see below for the false "review" that some states are now using to appear to comply.) Minnesota is on a

08/04/2015 05:01 PM EDT 2-482Chapter 2 - Comment Documents Triennial Reviews roughly 6 to 7 year track between reviews. Similarly, North Carolina is only now conducting a triennial review of its water quality standards, 6 years after its most recent review was completed in 2007. Second, relatedly, some states have adopted a practice of asking for public comment generally on water quality standards every three years, but not conducting its own comprehensive review and modification at that time. See, "triennial review" comment process conducted by Washington in 2010; "triennial review" comment process conducted for Washington, D.C. in 2005. Seeking public comment as an empty exercise that is largely ignored and not overseen by EPA is not compliant with the Clean Water Act. Finally, perhaps the most significant failing of Triennial Reviews is the wholesale practice of states carefully selecting a few changes to standards here and there, often those that industry advocates, and limiting public participation and EPA review to just those few areas. EPA enables this by refusing to review a state's water quality standards and triennial review as a whole, judging only those standards that a state chooses to revise. This of course wholly avoids meaningful review, with public participation, of standards that likely should be changed but that a state does not wish to change. This state of affairs is made even worse by the problem identified above with Administrator's determinations. The net result is: (1) EPA does not require states to submit the entire results of their Triennial Reviews; (2) EPA does not independently review standards triennially (or at all apparently); and (3) EPA does not even make a determination regarding adequacy of standards that were not the subject of Triennial Review when asked to do so. In this manner, a state can avoid changes to water quality standards necessary to protect designated uses for decades, all with the complicity of EPA. The entire Triennial Review system is broken and must be addressed if the Clean Water Act standards requirements are to have their intended effect. An example from the State of Minnesota's 2007 Triennial Review perfectly illustrates the problem. Minnesota had last completed a Triennial Review in early 2000. It did not then engage in another review until 2007. In 2007, the state announced a Triennial Review process and opened it for public comment. The state made a number of modest proposals for changing water quality standards. Only one of those proposals, nutrient standards for lakes, served to improve or strengthen water quality protections. All the other proposals-site specific standards, a series of UAA downgrades, relaxed standards for some mining industry pollutants, relaxed variance requirements and an artificial definition of "natural causes," would serve to weaken then-existing standards. Minnesota Center for Environmental Advocacy ("MCEA") submitted extensive comments, critiquing a number of the proposals, but also included written expert analysis and testimony advocating the need for several additional revisions: nutrient criteria for rivers and streams, strengthening of Minnesota's antidegradation requirements, adoption of criteria for certain prevalent pesticides and toxics benzene and naphthalene, and adoption of criteria for certain toxic pollutants identified under § 307. The State of Minnesota objected to even the submission of MCEA's evidence in the rulemaking proceeding that addressed anything other than the state's chosen subjects, and refused to send MCEA's submission to EPA at the time Minnesota submitted the "results" of its triennial review. While MCEA then independently submitted its evidence to EPA Region V, EPA refused to review for approval/disapproval any proposed change/addition to Minnesota's water quality standard that the state itself hadn't proposed. This result made a mockery of the Clean Water Act's requirement to include public participation as part of the wholesale review of a state's standards. Similarly, in 2010, the state of Washington afforded an opportunity for public comment on its so-called "triennial review." Northwest Environmental Advocacy ("NWEA") submitted extensive comments detailing the need for changes to Washington's water quality standards in order to strengthen the state's standards and bring them in line with Clean Water Act requirements. Those comments disappeared into the state agency, never to be seen or heard from again. The State of Washington promulgated some extremely minor changes to its standards during that period of time and

08/04/2015 05:01 PM EDT 2-483Chapter 2 - Comment Documents Triennial Reviews has developed a "five year plan" for WQS revisions, none of which address NWEA's concerns. The State of Washington does not appear to have submitted NWEA's comments or any explanation of the results of the so-called triennial review to EPA Region X nor has Region X apparently reviewed or called into question Washington's anemic review. In 2005, water quality advocates in Washington, D.C. urged the District Department of Health to adopt specific water quality standards for nutrients to protect waters in the District as well as downstream in the Potomac River and Chesapeake Bay. The Department declined to do so based on its "Nutrient Strategy," a nonbinding collection of existing and potential strategies for curbing nutrients. It is unclear whether the District submitted these comments, or its own rationale, to EPA. In any event, EPA's decision letter did not address the District's failure to adopt specific standards nutrients at all. These examples serve to illustrate the problems with EPA's lax approach to Triennial Review and its own oversight obligations. While the Water Protection Groups support the minimal changes to Triennial Review that EPA proposes in this rulemaking, those changes are wholly inadequate to the task at hand. Below, the Water Protection Groups outline the changes necessary to ensure that Triennial Reviews are real and function as necessary to meet the requirements of the Clean Water Act.
Response For response to this comment, see the following response essay(s): 6.c 6.d 6.g 6.h 

# Comment ID 0283-A1.001.009
Author Name: Thorme Melissa Organization: Downey Brand Attorneys LLP on behalf of several clients D. Requirements for Triennial Reviews The law is very clear that States are "to revisit and, if necessary, revise [water quality] standards at least once every three years." (Burbank v. SWRCB (2005) 35 Cal. 4th 613, 631, concurring opinion, citing American Paper Institute, Inc. v. U.S. Envtl. Protection Agency (D.C. Cir. 1993) 302 U.S. App. D.C. 80 [996 F.2d 346, 349] (American Paper); 33 U.S.C. §1313(c)(1).) Triennial reviews consist of public hearings in which current water quality standards are examined to assure that they "protect the public health or welfare, enhance the quality of water and serve the purposes" of the Act. (Burbank v. SWRCB (2005) 35 Cal. 4th 613, 632.) Additionally, the CWA directs States to "consider a variety of competing policy concerns during these reviews, including a waterway's 'use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes.' (Id. citing American Paper, supra, 996 F.2d at p. 349.) In California, the California Supreme Court even went so far to hold that a

08/04/2015 05:01 PM EDT 2-484Chapter 2 - Comment Documents Triennial Reviews Regional Water Board had "failed its duty to allow public discussion--including economic considerations--at the required intervals when making its determination of proper water quality standards." (Burbank v. SWRCB (2005) 35 Cal. 4th at 632.) Unfortunately, triennial reviews in California have become more of a planning exercise than a real review of water quality standards (uses and criteria) and a determination of whether the assigned standards are still appropriate.
Response For response to this comment, see the following response essay(s): 6.c 6.d 6.g 6.h


# 6.D- TRI - PUBLIC MEET/HEAR Comment ID 0178-A2.001.018
Author Name: Burnell Barry Organization: Idaho Department of Environmental Quality b) Public Participation Administrative procedures for rulemaking as well as definitions of a "public hearing" or a "public meeting" vary among states. In Idaho in addition to the quasi-formal negotiation meetings that precede a proposed rule, there is opportunity for public input via the written comment period and via a hearing if requested – on the proposed rule, again when the rule is considered by the DEQ Board, and then a third time when the Idaho Legislature considers the rules for adoption. All rulemakings by Idaho DEQ have at least one public meeting, few have a hearing, all have ample opportunity for public participation. EPA needs to make it abundantly clear that state administrative processes don't need to be changed, e.g. with regard to distinctions that may exist between public hearings and public meetings between federal and state administrative procedures. What is important is that the public is part of the process, has an opportunity to be heard.
Response For response to this comment, see the following response essay(s): 6.d 6.d:Section A 6.d:Section B 6.g

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# Comment ID 0229-A2.001.013
Author Name: Tillison Naomi Organization: Bad River Band of Lake Superior Tribe of Chippewa Indians The proposed revision to 40 CFR 131.20(b) indicates a state or authorized tribe should hold more than one (1) public hearing for the purpose of reviewing or revising WQS. Public participation during the review and revision of WQS is invaluable, and the Tribe concurs that a state or authorized tribe covering a large geographic area should hold multiple public hearings to ensure adequate opportunities are provided to the public. However, one (1) public hearing may be appropriate for a state or authorized tribe covering a small geographic area.
Response For response to this comment, see the following response essay(s): 6.d 6.d:Section A 

# Comment ID 0230-A1.001.012
Author Name: Ettinger Albert Organization: One of the counsel for the Environmental Law and Policy Center et al. Beyond the 304(a) focus of the current proposal, EPA should use this chance to insist that full participation by the public is allowed in each triennial review process. States must consider, on the record, changes to standards that are proposed by the public during the standards review process or during the state continuing planning process required under Section 303(e) of the CWA, and EPA must review the final submission.
Response For response to this comment, see the following response essay(s): 6.d 6.d:Section A 6.d:Section B 6.a 6.h 

# Comment ID 0236-A2.001.011

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Author Name: Weigel Brian Organization: Wisconsin Department of Natural Resources B. Regarding revisions to public hearing requirements for TSR process: Overall, WDNR is highly in favor of getting public input on the TSR. It is important to know what our external partners and customers feel are the highest priority water quality issues. However, it seems that hearings as the sole means of getting public input is overly restrictive and does not take into account the current nature of the electronic era. EPA should require public input throughout the TSR process but not only through the use of public hearings. WDNR uses work groups, emails, website postings and surveys to get input on topics to consider during the TSR and well as to assist with the TSR ranking process. Our state law also requires public comment periods and hearings for any Statutory or Administrative Code changes. In addition, WDNR requires that guidance documents (non-codified documents) we create be posted to our website for public review and comment before being finalized. Therefore, although we are very supportive of the public input process we would like to see more flexibility in the manner of seeking input built into this language. Recommendations:

•WDNR recommends that EPA require public input be a part of the TSR process. States should solicit the public for suggested TSR topics and request subsequent input on ranking of the topics from the public. If the TSR process results in any rulemaking only then should formal public "hearings" be required.

•Public hearings should be defined to include virtual hearings via webcast.

•Suggested language: Public Participation. The State shall allow for public participation for the purpose of reviewing water quality standards. Public participation can be facilitated through workgroups, email, webinars, surveys and other forms of communication. If review of water quality standards results in revisions to the standards then the state shall hold at least two public hearings for the purpose of getting input on proposed revisions to water quality standards before they are finalized. This must be done in accordance with provisions of State law, and EPA's public participation regulation (40 CFR part 25). The proposed water quality standards revision and supporting analyses shall be made available to the public prior to the hearings. Public hearings may be conducted electronically as long as appropriate public notice is given. Clarification needed if rule remains as it is:

•At which part(s) of the process are public hearings are required?

•How many hearings are required?
Response For response to this comment, see the following response essay(s):

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6.d 6.d:Section A 6.d:Section C 

# Comment ID 0263-A2.001.013
Author Name: Gretchen Watkins Larry Wawronowicz Organization: Lac du Flambeau Band of Lake Superior Tribe of Chippewa Indians The proposed revision to 40 CFR 131.20(b) indicates a state or authorized tribe should hold more than one (1) public hearing for the purpose of reviewing or revising WQS. Public participation during the review and revision of WQS is invaluable, and the Tribe concurs that a state or authorized tribe covering a large geographic area should hold multiple public hearings to ensure adequate opportunities are provided to the public. However, one (1) public hearing may be appropriate for a state or authorized tribe covering a small geographic area.
Response For response to this comment, see the following response essay(s): 6.d 6.d:Section A 

# Comment ID 0278-A2.001.010
Author Name: Hornback Chris Organization: National Association of Clean Water Agencies The triennial review process provides a critical opportunity for states and stakeholders to come together to review the existing suite of standards and determine whether new or modified standards are needed. Since each triennial review represents the build-up of at least three years of experience and practice, it often begins with a lengthy list of issues to be addressed. For example, the last triennial review in Virginia kicked off with a notice identifying close to one hundred different issues. And in many states, the public process associated with the triennial review takes up to two years, with extensive public outreach, stakeholder advisory meetings, public hearings and associated regulatory notices and actions.
Response For response to this comment, see the following response essay(s): 6.d 6.d:Section A

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6.d:Section B 6.g 

# 6.E - TRI - EPA 304(A) CRITERIA Comment ID 0175-A1.001.013
Author Name: Canton Steven Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. b. Particularly given the fact that 304(a) criteria are not updated by EPA on a regular basis-indeed, many existing criteria are more than 25 years old-it is anomalous that EPA would require states and tribes to examine criteria that EPA doesn't believe warrant updating with more recent scientific information.
Response For response to this comment, see the following response essay(s): 6.e 6.e: Section A 

# Comment ID 0178-A2.001.017
Author Name: Burnell Barry Organization: Idaho Department of Environmental Quality We also believe it is incumbent upon EPA to conduct their own Triennial Review of water quality standards that they have promulgated for states and tribes.
Response For response to this comment, see the following response essay(s): 6.e 6.e: Section D 

# Comment ID 0184-A2.001.012
Author Name: Curley Ed

08/04/2015 05:01 PM EDT 2-489Chapter 2 - Comment Documents Triennial Reviews Organization: The Western Coalition of Arid States WESTCAS offers the following recommendations:
1. It is reasonable for EPA to consider information in the 304(a) criteria guidance documents as one factor when evaluating state water quality standards. However, the guidance documents should be modified in the following respects:

•It should be clearly stated that they constitute guidance and not requirements.

•It should be explicitly stated that the establishment of standards for parameters addressed by 304 (a) documents should take into consideration the differing ecological, physical, and hydrological characteristics of different water bodies and the effects of those differing characteristics on the anticipated and practical uses of those waters.
Response For response to this comment, see the following response essay(s): 6.e 6.e: Section B 

# Comment ID 0240-A2.001.014
Author Name: Turner Jr. James Organization: Murray Energy Corporation b. Particularly given the fact that 304(a) criteria are not updated by EPA on a regular basis––indeed, many existing criteria are more than 25 years old––it is anomalous that EPA would require states and tribes to examine criteria that EPA doesn't believe warrant updating with more recent scientific information.
Response For response to this comment, see the following response essay(s): 6.e 6.e: Section A


# 6.F - TRI - PROPOSED REVISION Comment ID 0123-A1.001.010
Author Name: Chin Ryan

08/04/2015 05:01 PM EDT 2-490Chapter 2 - Comment Documents Triennial Reviews Organization: NA Triennial Reviews I support EPA's proposal that states and tribes shall re-examine its water quality criteria during its triennial review. Since there is no explicit statement requiring such, states and tribes may not re-evaluate their existing criteria to ensure that the criteria continue to be protective of the designated uses when new or updated 304 (a) criteria becomes available. As time passes, WQS may no longer protect the designated uses for a water body due to new or updated criteria, as well as new information that may allow for uses previously unattainable that could now become attainable. Therefore, it is important that EPA clarifies that states and tribes must reexamine its water quality criteria during its triennial review, weighing both if any criteria should be revised due to new or updated section 304 (a) criteria, and if new information becomes available that demonstrates a former unattainable use is now attainable.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section B 6.a 6.g 

# Comment ID 0127-A1.001.008
Author Name: Sawtelle Andrew Organization: NA Regarding triennial review, I also suppose the proposed addition that would require states and tribes to re-examine their water quality criteria during their triennial review to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations. It is simply a requirement to re-examine criteria; the state still has the discretion whether to modify or adopt its WQS as it deems appropriate, provided that any new or revised standards are submitted to EPA for review and final determination. The three-year review period is an appropriate balance between the desire to focus administrative time and resources on implementation and enforcement and the desire to ensure that the standards are up to date and that there is adequate public participation in the process through public hearings. The additional requirement to consider new or updated 304(a) criteria ensures some measure of public accountability while still preserving the state's relative decision-making autonomy. It also makes explicit the connection between the uses and the criteria that support those uses.
Response For response to this comment, see the following response essay(s): 6.f

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6.f:Section B 6.f:Section C 6.a 6.b 6.d 6.g 6.h 

# Comment ID 0128-A1.001.005
Author Name: Boon Richard Organization: California Stormwater Quality Association [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] C. Requirements for Triennial Reviews CASQA supports the clarification in section 131.20(a) highlighting that during triennial reviews the State should re
examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) rules. However, we feel that the language could be interpreted to imply that only those criteria that are more stringent should be evaluated. It is critical that the triennial review be used to incorporate the latest scientific information and local site-specific conditions, regardless of the direction of the change. In several cases, USEPA has promulgated new 304(a) criteria using more robust data and newly acquired scientific information that has demonstrated that less stringent criteria are protective of beneficial uses. Often these revised (less stringent) criteria are not adopted or considered by States. To ensure that the most recent information is considered, we believe that the language should be modified to ensure State's are encouraged to review the latest scientific information, regardless of whether it adjusts the criteria higher or lower. Additionally, the language should clarify that any modifications to water quality criteria resulting from the review would need to follow the State's process for adopting or revising water quality standards. Recommendation: Modify 131.20 (a) as follows: (a)... Similarly, a State shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses [begin strikeout] continue to be [end strikeout] [begin new text] are reasonably [end new text] protected. [begin new text] Any revisions to the water quality criteria resulting from the re-examination shall be adopted through the applicable process established by the State for adopting or revising water quality criteria. [end new text]

Response

08/04/2015 05:01 PM EDT 2-492Chapter 2 - Comment Documents Triennial Reviews For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.a 6.d 6.g 

# Comment ID 0131-A1.001.005
Author Name: Rager David Organization: Sanitation District Number 1 of Northern Kentucky Another example of additional costs includes the proposal that states re-examine their water quality criteria "to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations". Currently, SD1 participates in triennial reviews of the water quality criteria and appreciates that the state limits the focus of review on criteria changes that are important for protecting designated uses in Kentucky. The proposed language would require that the state either react to revised federal recommended criteria as they are published, or conduct an extensive, comprehensive review of all new federal recommended criteria every three years. As well as the additional costs incurred by the state, SD1 would need to expend further resources to participate in the update of Kentucky's water quality standards.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section D 6.f:Section E 6.g 12.a 

# Comment ID 0131-A1.001.020
Author Name: Rager David Organization: Sanitation District Number 1 of Northern Kentucky Comment 10 - Section 131.20 puts additional burden on states and permittees in terms of review of water quality criteria. Current regulations require that states review designated uses only; the proposed language would require

08/04/2015 05:01 PM EDT 2-493Chapter 2 - Comment Documents Triennial Reviews states to review the water quality criteria that protect those uses: "Similarly, a State shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected." It is not clear if this language means a state has the option to wait for its triennial review process or, if EPA makes changes to criteria, a state must act immediately to implement the proposed changes. This creates exceptional challenges to permittees, who may not have the technical or financial ability to respond to changes in such a manner. The language also requires that states justify a decision to not modify state criteria when EPA has issued new or updated criteria recommendations under section 304(a). This could be quite burdensome and EPA has not acknowledged the potential costs of meeting this provision. This provision could also result in new citizen suits that compel states to adopt EPA's criteria even if EPA does not publish implementation guidance that allows states to tailor their own criteria.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.f:Section E 6.b 6.d 6.g 12.a 

# Comment ID 0134-A1.001.009
Author Name: Shea III Quinlan Organization: Edison Electric Institute Triennial Review EPA is proposing to amend 40 C.F.R. § 131.20 to require States to reexamine water quality criteria as well as designated uses "to determine if any criteria should be revised in light of any new or updated CWA § 304(a) criteria recommendations to assure that designated uses continue to be protected." States have the primary responsibility for setting water quality standards, and EPA's criteria documents are guidance. While it is appropriate for states to review EPA criteria documents, any changes to the regulations should avoid placing a burden on States to justify a decision to forego modifying state criteria when EPA has issued new or updated criteria under section 304(a).

08/04/2015 05:01 PM EDT 2-494Chapter 2 - Comment Documents Triennial Reviews Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.f:Section E 3.a 6.b 6.e 

# Comment ID 0145-A2.001.009
Author Name: Shea III Quinlan Organization: Edison Electric Institute Triennial Review EPA is proposing to amend 40 C.F.R. § 131.20 to require States to reexamine water quality criteria as well as designated uses "to determine if any criteria should be revised in light of any new or updated CWA § 304(a) criteria recommendations to assure that designated uses continue to be protected." States have the primary responsibility for setting water quality standards, and EPA's criteria documents are guidance. While it is appropriate for states to review EPA criteria documents, any changes to the regulations should avoid placing a burden on States to justify a decision to forego modifying state criteria when EPA has issued new or updated criteria under section 304(a).
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.f:Section E 3.a 6.b 6.e 

# Comment ID 0153-A2.001.006

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Author Name: Bishop Jonathan Organization: California State Water Resources Control Board III. Clarification Of The Requirements Of Triennial Reviews. The State Water Board supports EPA's recommendation that that a state re-examine its water quality criteria in light of new or updated CWA section 304(a) criteria recommendations to assure protection of designated uses. (78 Fed. Reg. 54525, col. 3.) If EPA intends to make the recommendation specific to section 101(a)(2) uses, as the preamble implies (id., 54525, cols. 2, 3), it should provide clarifying direction.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.g 

# Comment ID 0156-A1.001.008
Author Name: Jackie Kepke Adam Link Organization: California Association of Sanitation Agencies and Tri-TAC 3. Triennial Review [Notice Section III.D, FR 54525, 40 CFR sections 131.20(a)-(b)] We agree with USEPA's proposal to clarify that States and tribes must solicit and consider public comments when determining the scope of a triennial review. We also agree that it is appropriate during the triennial review process to re
examine water quality criteria to ensure that designated and existing uses are protected and appropriate. However, it is important to note that USEPA's CWA section 304(a) criteria are merely guidance and recommendations developed on a national scale in a very conservative context, and may not be applicable or needed in all geographies around the U.S. As it applies to California, these criteria are often developed with species not present in the state (or within its various regions), and often contain very low numbers that should not be applicable. As such, we request that USEPA not make an explicit reference to 304(a) criteria guidance in the revised regulations given their lack of universal applicability. We are also concerned the Notice focuses almost exclusively on circumstances in which uses "that were previously unattainable are now attainable." (FR 54525) It is important to note that this "re-examination" process should also identify circumstances in which water quality criteria are more stringent than necessary to protect a particular use, or are unattainable. Efforts to change water quality criteria should carefully examine, through the use of sound science, not only whether existing criteria are inadequate, but also if they are overly conservative or unnecessarily restrictive. We believe this perspective is implicit in the scope of the revised rule and request that the rule be modified to make it explicit.

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Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.f:Section D 6.e 6.g 

# Comment ID 0157-A1.001.019
Author Name: Harpole Chad Organization: Kentucky Chamber of Commerce Triennial Review Procedures -- 40 CFR 131.20 EPA has proposed to amend 40 CFR 131.20(a) to require a state to "reexamine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA Section 304(a) criteria recommendations to assure that designated uses continue to be protected." The Chamber is concerned this proposed change would be used to force states to adopt EPA recommended criteria or to demonstrate to EPA during each Triennial Review why recommended criteria are not being adopted even if the state has previously determined that such recommended criteria are not necessary to protect uses. This proposed change infringes on the state's right to designate uses and the criteria that the state deems are appropriate for meeting those uses. Nothing in Section 304 of the Act provides for EPA to mandate that states take action on newly-developed or revised recommended criteria. This is consistent with the overall structure of the water quality standards program of the Act in which EPA can provide guidance to the states on scientific issues, but the responsibility for evaluating and determining uses and the criteria necessary to support those uses is left to the states. The proposed change to 40 CFR 131.20 also is ambiguous as to what would be considered adequate "reexamination" of water quality criteria by a state. The Chamber also questions how this provision would be enforced. Would EPA withhold approval of other water quality standards in order to force reconsideration of certain standards? Would this turn into an obligation for states to revise standards that EPA believes are potentially not sufficient? In sum, the Chamber opposes this change as it is another unnecessary restriction on a state's inherent flexibility to develop its own water quality standards.
Response For response to this comment, see the following response essay(s):

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6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.f:Section E 3.a 4.d 6.g 6.h 10.a 

# Comment ID 0164-A1.001.003
Author Name: Allmon Eric Organization: Lowerre, Frederick, Perales, Allmon & Rockwell on behalf of Clean Water Action et al. Consideration of CWA § 304(a) Criteria Recommendations in Triennial Reviews Commenters support EPA's effort to more explicitly require that states consider EPA's criteria recommendations pursuant to CWA § 304(a) in performing triennial water quality standard reviews. Commenters believe that EPA should go further, and require that each state adopt water quality standards at least as stringent as those recommended by EPA pursuant to CWA § 304(a) no later than four years after issuance of such recommended criteria by EPA. Texas' decision to ignore EPA's recommendations has led to the continued use of inappropriately lax water quality criteria for some parameters that are inconsistent with the best scientific information available. For example, in 2002 EPA adopted recommended ambient human health water quality criteria for mercury of 0.3 mg/kg as a fish tissue concentration.[FN1] Yet, more than ten years later, Texas still maintains a human health criterion for mercury of 0.7 mg/kg in its water quality standards.[FN2] This refusal by Texas to base its water quality standards on the most current and scientifically sound information available has placed the health of Texas residents at risk. Citizens near Caddo Lake are among those most affected by this failure, as many of those residents rely on fish for their subsistence. [FN1] United States Environmental Protection Agency, National Recommended Water Quality Criteria: 2002, November 2002, EPA-822-R-02-047, p. 12. [FN2] 30 TAC § 307.6(d)(1), Table 2.
Response For response to this comment, see the following response essay(s):

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6.f 6.f:Section A 6.f:Section D 6.g 6.h 

# Comment ID 0165-A2.001.007
Author Name: Gunderson Steven Organization: Colorado Department of Public Health and Environment 6. Requirement of Triennial Reviews. Colorado supports a robust triennial review process and has found regular review of its water quality standards to be an opportunity to ensure that Colorado's waters are protected. During its triennial review process, the Water Quality Control Commission evaluates whether to adopt new or revised water quality standards to ensure that classified uses are protected, and this commitment to regular reviews has provided strength and flexibility to the system. We support the transparency and public access to triennial review process that a predictable schedule of triennial reviews offers. Colorado also supports the direction to include consideration of the best science, not limited to EPA's 304(a) criteria. However, it is a state prerogative to prioritize and select subject matter depending on statewide perspective and available resources. The triennial review process is a state, not federal, process. We urge EPA to direct disgruntled stakeholders to participate in the State process before EPA attempts to resolve perceived conflicts.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section E 3.a 6.d 6.g 

# Comment ID 0174-A2.001.003
Author Name: Peoples Zachary Organization: Dallas Water Utilities

08/04/2015 05:01 PM EDT 2-4996.c Chapter 2 - Comment Documents Triennial Reviews Triennial Review Scope and Requirements The proposed changes would establish a new triennial review requirement that States would have to evaluate as to whether or not the existing water quality criteria continue the protection of designated uses. We are concerned that the approach described in the proposed rule will limit TCEQ's flexibility to adopt criteria different from what is in the 304 (a) guidance document. This will further limit a State's ability to deal with site-specific issues. The City of Dallas believes that the TCEQ successfully achieves this standard through its current approach to the triennial review.

Response For response to this comment, see the following response essay(s): 6.f 6.f:Section B 6.f:Section D 6.b 6.g 6.h 

# Comment ID 0175-A1.001.012
Author Name: Canton Steven Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. 3.0Requirements of Triennial Reviews Section 131.20 State review and revision of water quality standards EPA is proposing to amend this section to require states and tribes to re-examine their water quality criteria during triennial reviews to determine if criteria should be revised based on new or updated 304(a) criteria.

a. The language in this section should be revised to reflect the requirements that are currently in place: states and tribes are not required to use EPA's 304(a) criteria recommendations, but merely consider them. This section of the rule should be revised to state that "a State should re-examine its water quality criteria" rather than "a State shall". The use of ‘shall' implies that this must be done during every triennial review, and does not leave states the discretion they currently have, and should retain, of choosing whether to adopt new criteria on a case-by-case basis as they deem appropriate, based on their superior knowledge of the unique conditions of their waters and their state.
Response

08/04/2015 05:01 PM EDT 2-500Chapter 2 - Comment Documents Triennial Reviews For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.e 6.g 6.h 

# Comment ID 0176-A2.001.007
Author Name: Lazarus Jay Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM) Triennial reviews As stated above, DPNM is proposing elimination of §131.3(m), the definition of HAU. DPNM does not support this proposal requiring states and tribes to adopt the HAU, and the HAU should not be considered during a triennial review.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section E 5.e 6.g 

# Comment ID 0177-A2.001.004
Author Name: Klotz Mark Organization: New York State Department of Environmental Conservation (3)Triennial Reviews EPA proposes to amend 131.20(a) to clarify the requirement for States to reexamine their criteria where EPA has published new or updated section 304(a) criteria recommendations. NYSDEC always utilizes the best and most current science when revising or deriving new state ambient WQS, so this change would not significantly impact our program. However, from a national WQS program perspective, this is a reasonable requirement which NYSDEC supports.

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Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.a 

# Comment ID 0178-A2.001.016
Author Name: Burnell Barry Organization: Idaho Department of Environmental Quality IV. State Review and Revision of Water Quality Standards (Triennial Review) a) State Review With regard to requiring states to "re-examine its water quality criteria" in light of new EPA 404(a) recommendations, EPA needs to be very clear what re-examine means. If a state looks at a 304(a) recommendation, in response to a request from the public or of their own accord, that should be sufficient. If some sort of documentation of that reexamination is intended EPA needs to be explicit about what it is they want to see. Re-examination should not require that a state adopt or even take to rulemaking every EPA criterion recommendation. For example, consider EPA's national recommendation for aquatic life mercury criteria and the hurdle they face with ESA consultation in the Pacific Northwest. A state may, upon consideration, decide it is best to not adopt an EPA 304(a) recommendation, and EPA may even concur.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section D 6.g 6.h 

# Comment ID 0179-A2.001.006

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Author Name: Spotts David Organization: Pennsylvania Fish and Boat Commission In regard to the proposed change to Triennial Reviews, the PFBC strongly supports implementation of new and/or updated 304(a) criteria recommendations into states/tribes water quality standards. The PFBC believes the Triennial Review process is a critical component for states/tribes to insure protective WQS nationally.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.g 6.h 

# Comment ID 0180-A2.001.026
Author Name: Hobson Chris Organization: Southern Company 5. Triennial Review Southern Company disagrees with EPA's proposal to require states to re-examine their state water quality criteria in light of any new or updated CWA §304(a) criteria recommendations. EPA's CWA §304(a) criteria recommendations serve as guidance to states. They are not binding, and as a consequence, states have no obligation to adopt them. States are free to consider them, and there are many good reasons to do so. But we do not believe that it would be appropriate for EPA to compel states to re-examine their criteria on the basis of EPA's guidance, and thereafter subject the states to the threat of EPA disapproval if EPA does not like the way in which the states conducted this re
examination. As a result, we recommend that EPA drop the proposed changes to 40 CFR §131.20(a).
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section D 6.e

08/04/2015 05:01 PM EDT 2-503Chapter 2 - Comment Documents Triennial Reviews 6.g 6.h 

# Comment ID 0181-A2.001.007
Author Name: Sims Shaun Organization: Wyoming Association of Conservation Districts Page 54525 – D. Requirements of Triennial Reviews: 1. The EPA Proposal: ..a state or tribe shall re-examine its water quality criteria during its triennial review to determine if any criteria should be revisited in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected. COMMENT: It is important for states to be aware of any new or updated CWA section 304(a) criteria recommendations, however states should have the choice whether to adopt the new criteria recommendations and continue to have the flexibility to develop site specific criteria when and if it's needed.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section D 6.e 6.h 

# Comment ID 0183-A1.001.005
Author Name: Rich Eric Organization: Navajo Nation Environmental Protection Agency Triennial Review Requirements This amends 40 CFR Part 131.20 (a) to clarify that a state or tribe must examine its water quality criteria during its triennial review to determine if any criteria should be revised in light of new or updated EPA criteria recommendations published under CWA 304(a) to assure that designated uses continue to be protected. NNEPA Water Quality/NPDES Program Comment: The Water Quality/NPDES Program has always examined the water quality criteria during each Navajo Nation Surface

08/04/2015 05:01 PM EDT 2-504Chapter 2 - Comment Documents Triennial Reviews Water Quality Standards triennial review. This should not affect the Navajo Nation Surface Water Quality Standards
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.a 

# Comment ID 0184-A2.001.010
Author Name: Curley Ed Organization: The Western Coalition of Arid States There are two primary factors that form the basis for this concern:
1. There is the potential that the 304(a) documents will be treated as requirements rather than guidance.
2. The criteria guidance documents do not adequately acknowledge, or provide mechanisms for, the need to adapt the results presented in the documents based on site-specific differences with respect to the composition of the aquatic ecosystem, flow regime, exposure duration and frequency, or other relevant characteristics. Such adjustments are especially necessary in the Arid West where so many waterways have ephemeral, intermittent, or effluent-dominated flow; and waters frequently have a high dissolved mineral content. Following are a more detailed description of the concerns and recommended revisions to the proposed rule. The CWA clearly and unambiguously contemplates that surface water quality standards will be established in the first instance by states, not EPA. EPA is to provide a review function and to conduct research into technical issues associated with setting standards. It is to take a direct role only if states fail to adopt approvable standards. Having EPA review each state's program every three years, however, is a far different from requiring that such programs be identical or even similar in every state. Where Congress desired state conformity, it has proven itself quite capable of saying so directly (for example, in requiring development of uniform standards for the Great Lakes). Any action that moves in the direction of requiring uniform national standards is contrary to the language and intent of the CWA. At most, EPA should provide basic research and/or guidance consisting of a compendium of workable options developed by states throughout the years. The balance between achieving consistency with guidance and preserving state primacy should fall on the side of preserving state flexibility in conformance with the legislative intent. As set out in Section 303 of the CWA, the states are assigned the role of establishing the water quality standards and EPA is assigned the role of reviewing each state's standards to confirm that the standards are consistent with the applicable requirements of the CWA. Characteristics of waters across the US vary widely with respect to ecological, physical, and hydrological conditions. As noted in Comment 1, this is particularly true when comparing conditions is the arid and semi-arid regions of the nation

08/04/2015 05:01 PM EDT 2-505Chapter 2 - Comment Documents Triennial Reviews to conditions in the more water-rich regions. Watersheds in the West are typified by hot, highly mineralized waters withpoor habitat and severe flow regimes. For example, in the arid Southwest, seasonal rain can result in rapid but shortlived flow in ephemeral streams. The quality of this water often is relatively poor (at a minimum, turbidity and sedimentation are high) due to natural conditions.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section C 6.f:Section D 6.f:Section E 3.a 6.e 6.g 6.h 

# Comment ID 0184-A2.001.013
Author Name: Curley Ed Organization: The Western Coalition of Arid States [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.]
2. The third sentence in 40 CFR Part 131.20 (a) [the proposed amendment to this section] should be revised as follows, "Similarly a State shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA Section 304 (a) criteria recommendations [begin new text] taking into consideration the appropriate adaptation of such recommendations based on the relevant ecological, physical, and hydrological characteristics of the water subject to the criteria, [end new text] to assure that designated uses [begin strikeout] (continue to be) [end strikeout] are protected. [note: parentheses indicate deletions; underline indicates additions]
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section D 6.h

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# Comment ID 0185-A1.001.007
Author Name: Poltak Ronald Organization: New England Interstate Water Pollution Control Commission Triennial Reviews EPA is proposing to amend §131.20(a) to clarify that states shall re-examine water quality criteria during triennial reviews to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations. This process should ensure that state water quality criteria reflect current science such that designated uses continue to be protected. NEIWPCC states request that EPA further amend §131.20(a) to clarify that any updates to states' criteria will be made at the states' discretion.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section C 6.h 

# Comment ID 0187-A1.001.004
Author Name: Allmon Eric Organization: Lowerre, Frederick, Perales, Allmon & Rockwell on behalf of Lone Star Chapter of the Sierra Club Consideration of CWA § 304(a) Criteria Recommendations in Triennial Reviews Commenters support EPA's effort to more explicitly require that states consider EPA's criteria recommendations pursuant to CWA § 304(a) in performing triennial water quality standard reviews. Commenters believe that EPA should go further, and require that each state adopt water quality standards at least as stringent as those recommended by EPA pursuant to CWA § 304(a) no later than four years after issuance of such recommended criteria by EPA. Texas' decision to ignore EPA's recommendations has led to the continued use of inappropriately lax water quality criteria for some parameters that are inconsistent with the best scientific information available. For example, in 2002 EPA adopted recommended ambient human health water quality criteria for mercury of 0.3 mg/kg as a fish tissue concentration.[FN1] Yet, more than ten years later, Texas still maintains a human health criterion for mercury of 0.7 mg/kg in its water quality standards.[FN2] This refusal by Texas to base its water quality standards on

08/04/2015 05:01 PM EDT 2-507Chapter 2 - Comment Documents Triennial Reviews the most current and scientifically sound information available has placed the health of Texas residents at risk. Citizens near Caddo Lake are among those most affected by this failure, as many of those residents rely on fish for their subsistence. [FN1] United States Environmental Protection Agency, National Recommended Water Quality Criteria: 2002, November 2002, EPA-822-R-02-047, p. 12. [FN2] 30 TAC § 307.6(d)(1), Table 2.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section D 6.h 

# Comment ID 0189-A1.001.010
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 Triennial Review - States/Authorized Tribes should consider new 304(a) criteria It is EPA's expectation that every three years all of a state's (or tribe's) WQS are reviewed and EPA is to be informed of the results of that review, regardless of its outcome. EPA's Water Quality Standards Handbook further provides: in each three-year period, a state is to review the general provision of the standards for adequacy taking into consideration:

•new Federal or State statutes, regulations, or guidance;

•legal decisions involving application of standards; or • other necessary clarifications or revisions.
Response For response to this comment, see the following response essay(s): 6.f

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6.f:Section B 6.g 6.h 

# Comment ID 0189-A1.001.013
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 Additionally, whenever a state reviews its WQS or adopts new standards, the state shall adopt criteria for all toxic pollutants listed pursuant to 33 U.S.C. § 1317(a)(1) for which criteria have been published by EPA under 33 U.S.C. § 1314(a), the discharge or presence of which could reasonably be expected to interfere with designated uses of the state's waters. The Bands support the proposal to require states/authorized tribes to at least consider changes to those standards for which EPA has suggested new criteria pursuant to 304(a) since the state's last review. For example, as part of their next review states/authorized tribes should consider their ammonia criteria in light of the new EPA ammonia criteria. EPA should not approve WQS proposed revision packages for changes that do not contain a record showing that the state/authorized tribe properly considered changes to standards for which EPA has proposed new or revised criteria since their last triennial review.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section C 6.f:Section D 6.e 6.g 6.h 

# Comment ID 0194-A1.001.009
Author Name: Stonestreet Robert Organization: West Virginia Chamber of Commerce 3. Triennial Review (40 CFR § 131.20)

08/04/2015 05:01 PM EDT 2-509Chapter 2 - Comment Documents Triennial Reviews According to EPA's "tri-fold" summary, the proposed revision to this regulation is intended to clarify that states "shall re
examine their criteria" whenever EPA publishes new or updated water quality criteria recommendations. While the Chamber agrees that states should continue the established practice of considering new or updated recommendations from EPA during the triennial review process, the Chamber opposes the proposed revisions for several reasons. First, what constitutes a "re-examination" of water quality standards is ambiguous. The language of the proposed revision could be interpreted to require states to conduct a full-blown scientific examination during every triennial review to provide a scientific rationale to justify any water quality criteria that are different than EPA recommendations. EPA's recommended water quality criteria are generally not state-specific, much less water body-specific. As a result, many states, including West Virginia, have adopted water quality criteria that are different that EPA's recommended criteria. State resources are already stretched thin, and to require such a reexamination would be yet another burden for state agencies to bear. Second, the proposed language is ambiguous as to whether the "re-examination" must take place whenever EPA issues any new or updated EPA recommended criteria or if the duty only applies during the triennial review process. Third, the proposed "re-examination" requirement to "assure that designated uses continue to be protected" in light of new or updated EPA recommendations, does not address criteria that are overly restrictive or may no longer be necessary to protect water uses. The proposed language could be construed to exclude revisions to criteria that are deemed unnecessary to protect water uses.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section C 6.f:Section D 6.f:Section E 6.g 6.h 10.a 

# Comment ID 0195-A1.001.013
Author Name: Norton Ken Organization: National Tribal Water Council It is EPA's expectation that every three years all of a state's (or tribe's) WQS are reviewed and EPA is to be informed of the results of that review, regardless of its outcome. EPA's Water Quality Standards Handbook further provides: In each three-year period, a state is to review the general provision of the standards for adequacy taking into

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consideration:

•new Federal or State statutes, regulations, or guidance;

•legal decisions involving application of standards; or • other necessary clarifications or revisions. Additionally, whenever a state reviews its WQS or adopts new standards, the state shall adopt criteria for all toxic pollutants listed pursuant to 33 U.S.C. § 1317(a)(1) for which criteria have been published by EPA under 33 U.S.C. § 1314(a), the discharge or presence of which could reasonably be expected to interfere with designated uses of the state's waters.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section B 6.g 

# Comment ID 0195-A1.001.015
Author Name: Norton Ken Organization: National Tribal Water Council The NTWC supports the proposal to require states/authorized tribes at least to consider changes to those standards for which EPA has suggested new criteria pursuant to 304(a) since the state's last review. For example, as part of their next review states/authorized tribes should consider their ammonia criteria in light of the new EPA ammonia criteria. EPA should not approve WQS proposed revision packages for changes that do not contain a record showing that the state/authorized tribe properly considered changes to standards for which EPA has proposed new or revised criteria since their last triennial review.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section C 6.f:Section D 6.g 6.h

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# Comment ID 0197-A1.001.009
Author Name: Garrison Naoh Organization: Natural Resources Defense Council While we support this proposed change, we also suggest that EPA revise its proposed language to make clear that states must allow for full public participation in each triennial review process, and that states must allow consideration of all WQS for the state, not just new or updated criteria under section 304(a).[FN4] [FN4] In this regard, EPA should exercise its authority under Section 303(c)(4)(B) to ensure that all states are complying with the triennial review requirement of the CWA.

Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 4.d 6.d 6.g 6.h 

# Comment ID 0199-A1.001.008
Author Name: Rogers Gilbert Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network EPA should improve this proposed regulatory provision by clarifying that states should consider all new or updated CWA § 304(a) criteria not previously considered, regardless of whether information was updated in the last three years or earlier. In many cases, states will not have considered updated information in their last triennial review. When that is the case, states should consider EPA's most current criteria, even if the updated criteria were promulgated by EPA prior to a state's last triennial review. EPA should also consider requiring states to adopt updated § 304 criteria in the triennial review process when the new criteria are more protective of water quality than a state's existing criteria. Currently, states are allowed to consider new information, but there is nothing in the regulations that requires them to go further and adopt the most scientifically up-to-date criteria. Additionally, clarification from EPA is needed on how the proposed requirement that states consider new or updated CWA § 304(a) criteria will be enforced. How will states establish that

08/04/2015 05:01 PM EDT 2-512Chapter 2 - Comment Documents Triennial Reviews they have indeed "considered" the updated criteria? What happens if states fail to comply with the requirement?
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.f:Section D 6.g 6.h 

# Comment ID 0200-A1.001.007
Author Name: Covar Zak Organization: Texas Commission on Environmental Quality 3. Requirements of State Triennial Reviews of WQS. The TCEQ does not support proposed changes to §131.20 which would mandate, as part of state triennial reviews, consideration of water quality criteria developed under CWA Section 304(a). More specifically, the proposed rule would require states to evaluate whether their existing water quality criteria continue to be protective of designated uses for any new or updated CWA Section 304(a) recommendations by EPA. This unnecessarily broad proposed requirement emphasizes specific guidance developed at the national level and does not take into account that the guidance does not apply in all instances. Importantly, the TCEQ already considers CWA Section 304(a) recommendations and other scientifically defensible data in its triennial review of WQS. Consideration of only the CWA Section 304(a) recommendations may not be appropriate for developing criteria for adoption into the Texas Surface Water Quality Standards (TSWQS). EPA should continue to provide states the flexibility to continue broad consideration of all available information that is scientifically defensible. Such consideration of available data and information already includes reviews of recommended national criteria and guidance, and is performed in accordance with current regulations stated in 40 Code of Federal Regulations (CFR) Section 131.20(a).
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section D

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6.e 6.h 

# Comment ID 0201-A1.001.013
Author Name: Godfrey Mike Organization: Alabama Power III. Requirements of Triennial Reviews EPA is proposing to amend the triennial review requirements of paragraph (a) of 40 C.F.R. § 131.20 to require States to reexamine their respective water quality criteria during their triennial reviews to evaluate whether their existing water quality criteria are still protective of existing designated uses and to determine if any criteria should be revised in light of any new or updated criteria recommendations issued by EPA, pursuant to Section 304(a) of the CWA. EPA correctly recognizes it cannot require States to adopt its Section 304(a) recommendations. However, in the Draft Rule, the agency provides that States would be required to at least "consider any new or updated 304(a) criteria as a part of their triennial review". 78 Fed. Reg. at 54,525. It is unclear exactly how, if at all, EPA intends to verify that States have fulfilled this "requirement" to at least "consider" the agency's latest 304(a) recommendations. EPA should better explain its proposed oversight on this issue.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section D 6.g 6.h 

# Comment ID 0202-A2.001.017
Author Name: Frederick Kevin Organization: Wyoming Department of Environmental Quality/Water Quality Division Triennial Reviews The EPA is proposing to add language to 131.20 to specify that "States shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected." Given that 131.11 already specifies that "States must adopt those water quality criteria that protect the designated use" and that numeric criteria be based on 304(a) Guidance, 304(a) Guidance modified to reflect site-specific conditions, or other scientifically defensible methods, the addition to

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131.20is unnecessary. The WDEQ/WQD is concerned that if the proposed language stays in the regulation that the EPA will require states to adopt 304(a) criteria, even though 131.11 specifies that states can adopt other scientifically defensible criteria or narrative criteria. Furthermore, the proposed language is ambiguous as to what sort of demonstration would be required if a state chose not to adopt 304(a) criteria or chose to delay adoption of 304(a) criteria because of concerns over implementation of the criteria. The EPA is proposing to revise 131.20(b) to specify that "The State shall hold public hearings" rather than "The State shall hold a public hearing." The federal regulations should accommodate the rule making procedures for individual States, rather than dictate multiple hearings. The WDEQ/WQD therefore recommends revising the language to specify one or more hearings.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section C 6.f:Section D 6.d 6.g 6.h 

# Comment ID 0203-A1.001.011
Author Name: Christman Jim Organization: Hunton & Williams on behalf of Utility Water Act Group IV. Required Triennial Review of Federal Criteria When it comes to water quality criteria, again EPA's proposal is designed to make the water quality system less flexible. First, in the "Purpose" section (§ 131.2), EPA proposes to delete the word "necessary" before "criteria." Thus water quality standards would be described as including criteria "that protect the designated uses" instead of "necessary criteria to protect the uses." Thus criteria are to be "protective" but need not be "necessary" to protect. This seems to be an effort to prevent challenges to criteria that are highly (even overly) protective. This effort to make it easy to set criteria more stringent than necessary should not be adopted, as it (along with the other proposals) biases the states' analysis of criteria. Second, EPA proposes to require states every three years (during the regular Triennial Review) to determine if state criteria should be revised in light of new or updated federal § 304(a) criteria from EPA.

08/04/2015 05:01 PM EDT 2-515Chapter 2 - Comment Documents Triennial Reviews This elevates § 304(a) federal water quality criteria to an intermediate status between "guidance" and "regulation." To be sure, states would not be "required" to adopt EPA's § 304(a) recommendations (78 Fed. Reg. 54,525 col. 3). But they would be required to consider them, possibly for every waterbody that has the designated use corresponding to the federal criterion and possibly for every waterbody that might conceivably be able to attain that use in the future. In this way, EPA is decoupling state consideration of EPA § 304(e) criteria from state determinations of attainability, when in fact the two are interdependent. When a state has a fishable or swimmable designated use and decides whether to adopt a more stringent EPA criterion for that use, the state needs to consider whether the new criterion could be attained now or in the future. A fishable use that was attainable under the old criterion may not be attainable under EPA's new, more stringent one. And if the designated use will no longer be attainable under the new criterion, the state may have to change the designated use. The state needs to know this before adopting the criterion. Thus, when considering whether to adopt a new EPA § 304(e) criterion, the state should do some sort of attainability analysis, and maybe even a full UAA, in order to understand the implications of adopting the new federal criterion. But this sort of analysis is missing from the proposed rule, and three years is not enough time to do a UAA for every waterbody that might be affected by a new EPA criterion. Thus, EPA's proposal would force states to consider § 304(e) criteria on a hurried schedule and, no doubt, adopt such criteria prematurely, leading to waters that are "impaired" (because of the new criterion) for the first time. UWAG recommends that EPA not require states to consider new EPA criteria every three years, especially without also considering the likely effect on attainability on the waters to which the criteria would apply.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.f:Section D 6.f:Section E 6.d 6.g 6.h 10.a

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# Comment ID 0205-A1.001.009
Author Name: Burd Charlie Organization: Independent Oil and Gas Association of West Virginia Inc.

C. Requirements of Triennial Reviews With regard to triennial reviews, USEPA has proposed to revise 40 C.F.R. § 131.20(a) to require states to re-examine their water quality criteria to determine if any criteria should be revised in light of any new or updated recommended criteria adopted by USEPA pursuant to 33 U.S.C. § 1314(a) and "assure that designated uses continue to be protected." IOGA-WV objects to these proposed changes. First, the proposed new language is vague––it is unclear what the required "re-examination" entails. Further, this revised language does not include any language relating to the necessity of recommended criteria to achieve designated uses, ostensibly encouraging states to adopt on a broad scale a recommended criterion that may be overly protective in many areas. Finally, like some of the revisions already discussed, IOGA-WV believes that this proposed clarification is simply unnecessary, as states already consider new information, including new USEPA proposed criteria, when conducting the triennial review process.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section D 6.f:Section E 6.e 6.g 6.h 10.a 

# Comment ID 0206-A1.001.009
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.] Under this proposal, "EPA is proposing to amend the triennial review requirements of paragraph (a) of § 131.20 to clarify that a state or tribe shall re-examine its water quality criteria during its triennial review to determine if any crite ria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected." 78 Federal Register 54,525. We strongly support this amendment and the

08/04/2015 05:01 PM EDT 2-517Chapter 2 - Comment Documents Triennial Reviews logic behind making the change. Specifically, we agree that "it is important for states and tribes to consider any new or updated 304(a) criteria as part of their triennial review, in order to ensure that state or tribal water quality criteria reflect current science and protect applicable designated uses." Id. If EPA does not require states to consider the 304(a) criteria, the states may continue to utilize outdated criteria that are not protective of public health, the environment and designated uses. We proposed that EPA modify this rule further to make it explicit that the states are required to accept comment andundertake review of all of its water quality standards, as well as submit the entire record supporting its actions or nonactions to EPA for review. While this should be apparent to the states from a plain reading of 40 C.F.R. § 131.20(c), many states are not completing timely reviews of all of their water quality standards, and this is limiting citizen's ability to have meaningful input. This serious problem can be remedied with a simple modification to the proposed language as follows: (a)State Review. The State shall from time to time, but at least once every 3 years, hold public hearings for the purpose of reviewing [begin strikeout] applicable [end strikeout] [begin new text] all [end new text] water quality standards and, as appropriate, modifying and adopting standards; in particular, any water body segment with water quality standards that do not include the uses specified in section 101(a)(2) of the Act shall be re-examined every 3 years to determine if any new information has become available. If such new information indicates that the uses specified in section 101(a)(2) of the Act are attainable, the State shall revise its standards accordingly. Similarly, a State shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected. Procedures States establish for identifying and reviewing water bodies for review should be incorporated into their Continuing Planning Process. (b)Public Participation. The State shall hold a public hearings for the purpose of reviewing [begin strikeout] or [end strikeout] [begin new text] and [end new text] revising water quality standards, in accordance with provisions of State law, [begin new text] EPA's water quality management regulations (40 CFR Part 131) [end new text] and EPA's public participation regulation (40 CFR part 25). The proposed water quality standards revision and supporting analyses shall be made available to the public prior to the hearing. c) Submittal to EPA. The State shall submit the results of the review, [begin new text] any public comment received, [end new text] any supporting analysis for the use attainability analysis, the methodologies used for site-specific criteria development, any general policies applicable to water quality standards [begin new text] , [end new text] and any revisions of the standards to the Regional Administrator for review and approval, within 30 days of the final State action to adopt and certify the revised standard, or if no revisions are made as a result of the review, within 30 days of the completion of the review. Further, EPA must also begin using its authority under CWA Section 303(c)(4)(B) to promulgate or update water quality standards in any state that fails to conduct a Triennial Review if such standards are necessary to comply with the CWA. Where a state fails to consider CWA Section 304(a) criteria, EPA should also make a formal determination under CWA Section 303(c)(4)(B) whether new or updated criteria and upgraded uses are required under the CWA. As recommended in Section I of these comments, EPA should make amendments to 40 C.F.R. § 131.22 to address these issues.

08/04/2015 05:01 PM EDT 2-518Chapter 2 - Comment Documents Triennial Reviews Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.f:Section D 6.f:Section E 4.d 6.a 6.d 6.g 6.h 

# Comment ID 0207-A1.001.006
Author Name: Bodine Susan Organization: American Farm Bureau Federation et al. Triennial Review - proposed § 131.20(a):

• Review of new EPA recommended criteria -- States have the primary responsibility for setting water quality standards; EPA's criteria documents are guidance. The final regulation should be clear that consideration of any new EPA-adopted criteria is merely one factor in the triennial review and does not require separate justification if the state decides not to modify its criteria to conform to new or updated criteria issued by EPA under section 304(a). As drafted the proposal could result in litigation over existing state standards.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section D 6.f:Section E 6.e 6.g 6.h 

# Comment ID 0207-A1.001.023

08/04/2015 05:01 PM EDT 2-519Chapter 2 - Comment Documents Triennial Reviews
Author Name: Bodine Susan Organization: American Farm Bureau Federation et al. C. Triennial review. EPA is proposing to amend 40 C.F.R. § 131.20 to require states to reexamine water quality criteria as well as designated uses "to determine if any criteria should be revised in light of any new or updated CWA § 304(a) criteria recommendations to assure that designated uses continue to be protected." We do not oppose a requirement that states review EPA criteria documents. However, we oppose any suggestion that criteria in § 304(a) guidance documents are presumptively superior to the criteria that have already been adopted by a state and approved by EPA. In fact, under 40 C.F.R. § 131.21, existing state criteria are given deference and new or revised water quality criteria adopted into law by states do not go into effect for CWA purposes until approved by EPA. Further, § 304(a) criteria are merely guidance and states are free to adopt other scientifically defensible numeric criteria and to establish narrative criteria where numeric criteria cannot be established. As noted in the Federal Register notice announcing EPA's recently adopted ammonia criteria: "EPA's recommended criteria do not impose legally binding requirements. States and authorized Tribes have the discretion to adopt, where appropriate, other scientifically defensible water quality criteria that differ from these recommendations." 78 Fed. Reg. 52192, 52192 (Aug. 22, 2013).EPA's proposed requirement opens the door to litigation by persons seeking to compel states to adopt EPArecommended criteria by requiring not only a determination, but also an "assurance" that designated uses are protected. Given the significant expansion in water quality standards litigation by environmental groups, we believe litigation over this new mandate is likely. For these reasons, we recommend that EPA amend its proposed regulatory language to ensure that the proposed changes do not presume that new or updated § 304(a) criteria are superior to criteria that were adopted by the state and approved by EPA. We are concerned that the proposed language would create such a presumption and would put the burden on a state to justify its existing criteria, to EPA or to a court should a citizen suit be filed seeking to compel EPA to establish federal standards for a state based on new or revised § 304(a) guidance. Such a result would upset the federalism balance of the CWA, under which states have the primary role in setting water quality standards and protecting water quality. To address these concerns, we recommend the third sentence in proposed § 131.20 be revised as follows: "Similarly, a State shall consider any new or updated CWA section 304(a) criteria recommendations during public hearings."
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B

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6.f:Section D 6.f:Section E 3.a 6.b 6.e 6.g 6.h 

# Comment ID 0208-A1.001.011
Author Name: Foster Wade Organization: The Fertilizer Institute IV. Triennial Review Amendments EPA's proposed requirement that regulators "shall" reexamine EPA's section 304(a) recommendations will expose WQS-based decisions to excessive disputes. As explained in ANPC's comment, EPA guidance regarding water quality criteria or designated uses under section 304(a) of the CWA [FN16] should not be considered superior to existing WQS that have gained approval through both state rulemaking process and formal ratification by EPA under section 303. With respect to that discussion, it is important to emphasize the possible consequences of requiring states and tribes to continuously re-examine EPA's recommendations for water quality criteria as an administrative duty: this will expose current and future permittees to delays for their CWA authorizations (i.e., because state and tribal regulators likely will be challenged for failure to properly consider or apply EPA's recommendations), and reduce the flexible application of WQS-based criteria nationally. This could lead to adverse consequences for water bodies and permittees in areas where very different criteria are appropriate (e.g., where natural background levels of particular substances or unique sensitivities of specific species militate in favor of stricter or more relaxed criteria). Moreover, administratively forcing continuous re-examination of EPA's section 304(a) recommendations could render current state and tribal review processes unnecessarily mechanical, and result in poor consideration of how specific EPA recommendations (which change over time) should be integrated with state studies of appropriate criteria and designated uses (which also change over time). EPA's current section 304(a) recommendations are not brief:[FN17] applying those detailed recommendations to water bodies and uses that long have been subject to study (e.g., industrial activities along the Mississippi River) on a repeated basis could erode state and tribal attention to subtle federal changes that should be adopted, or provoke rigid retention of older criteria and uses. [FN16] 33 U.S.C. § 1314(a). [FN17] See, e.g., EPA, National Recommended Water Quality Criteria Website, http://water.epa.gov/scitech/ swguidance/standards/criteria/current/index.cfm (last visited Dec. 13, 2013).
Response

08/04/2015 05:01 PM EDT 2-521Chapter 2 - Comment Documents Triennial Reviews For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section D 6.e 6.g 6.h 

# Comment ID 0208-A1.001.012
Author Name: Foster Wade Organization: The Fertilizer Institute Finally, because applicable WQS, designated uses, and water quality criteria are central to the CWA authorizations that regulated entities need to operate, EPA should reconsider its approach to forcing re-examination of its section 304(a) recommendations. The excessive disputes (or mechanical reviews) that could follow EPA's Proposed Rule likely would diminish the ability of state and tribal agencies to provide the regulated public with timely, accurate requirements. Instead, EPA should urge states and tribes to consider and incorporate portions of those recommendations, as appropriate, based on their local expertise and factual insights. This approach would better implement the consultation and update processes envisioned by the plain text of section 304(a). In terms of the Proposed Rule itself, the proposed language set forth in ANPC's comments should be incorporated into § 131.20.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section D 6.g 6.h 

# Comment ID 0209-A1.001.012
Author Name: Gilzow Floyd Organization: Missouri Public Utility Alliance TRIENNIAL REVIEW STUDIES The Triennial Review has been a cornerstone of the regulatory process that is the foundation of the CWA for many

08/04/2015 05:01 PM EDT 2-522Chapter 2 - Comment Documents Triennial Reviews decades. It is the time when the state regulatory agency must evaluate its general regulatory rubric to insure that the entire breadth of water quality issues are being addressed and to determine if circumstances have changed in a manner and at a magnitude to require modifications. It appears that the EPA ‘clarification' would add an additional layer of regulatory workload on the states and force them to fully reconsider ALL of the standards used to create ‘Beneficial Uses'. This evaluation is not one that can be done lightly or with minimal review, but will require strenuous scientific review, even when professional staff can fully demonstrate that there has been little or no change to the underlying data, analysis, or rationale that established the ‘beneficial uses' years or even decades prior. This unnecessary burden on the state will increase the pressure on state agencies to reduce the number of ‘beneficial uses' in their regulations in order to minimize the costs associated with recertification every three years. Many state agencies, including the Missouri Department of Natural Resources (MDNR), are no longer under legislative pressure to hold cost increases to zero, but under increasing pressure to reduce costs. The demand for total review of ALL ‘beneficial uses' ignores the professional standing and training of many MDNR staff who daily work with water quality standards, and the changing environmental issues in the state. They are well aware when current definitions or characterizations of ‘beneficial uses' have become outdated. We recommend that the language be modified so that state environmental agencies be allowed to use professional judgment to determine which ‘beneficial uses' should be modified, but require that the head of each agency certify that those not modified did not need to be so because conditions in the state indicated that no changes were necessary.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.f:Section E 6.b 6.e 6.g 12.a 

# Comment ID 0212-A1.001.009
Author Name: Norton Kelly Organization: Arizona Mining Association

08/04/2015 05:01 PM EDT 2-523Chapter 2 - Comment Documents Triennial Reviews Requirement for states to re-examine standards in light of new 304(a) criteria (proposed § 131.20(a)): EPA is proposing that states must "re-examine" their water quality criteria to determine if such criteria should be revised in light of any new or updated EPA Section 304(a) criteria recommendations. This proposed requirement would impose a significant burden on States in times of budgetary challenges. In Arizona, for example, ADEQ is largely a fee funded agency after changes to its funding base resulting from the so-called Great Recession. Reviewing EPA Section 304(a) criteria is not something for which the agency can charge a specific fee, and so its ability to devote significant resources to the task is limited. If the proposal were adopted, every new or revised Section 304(a) criterion would need to be analyzed to see whether and how it applies to all applicable designated uses and sub-categories of such uses in the State. This could be a very complicated and time-consuming process, especially if multiple 304(a) criteria have changed or been adopted between one triennial review and the next. As a practical matter, the AMA is concerned that if this proposal is adopted, many states (including Arizona) will likely face pressure to simply adopt any new or revised Section 304(a) criterion automatically, without analyzing the appropriateness of the criterion for the state's particular waters or for its various use sub-categories. Such an approach would be easier than presumably having to justify to EPA why any new or revised 304(a) criterion was not being adopted by the state. The AMA opposes this change because it is concerned that this proposal could have the effect of turning "recommended" CWA 304(a) criteria into de facto state surface water quality standards in many states.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.f:Section E 6.b 6.e 6.g 6.h 12.a 

# Comment ID 0215-A1.001.009
Author Name: Callaway Casi Organization: Mobile Baykeeper [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] Under this proposal, "EPA is proposing to amend the triennial review requirements of paragraph (a) of § 131.20 to clarify that a state or tribe shall re-examine its water quality criteria during its triennial review to determine if any crite ria

08/04/2015 05:01 PM EDT 2-524Chapter 2 - Comment Documents Triennial Reviews should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected." 78 Federal Register 54,525. We strongly support this amendment and the logic behind making the change. Specifically, we agree that "it is important for states and tribes to consider any new or updated 304(a) criteria as part of their triennial review, in order to ensure that state or tribal water quality criteria reflect current science and protect applicable designated uses." Id. If EPA does not require states to consider the 304(a) criteria, the states may continue to utilize outdated criteria that are not protective of public health, the environment and designated uses. We proposed that EPA modify this rule further to make it explicit that the states are required to accept comment andundertake review of all of its water quality standards, as well as submit the entire record supporting its actions or nonactions to EPA for review. While this should be apparent to the states from a plain reading of 40 C.F.R. § 131.20(c), many states are not completing timely reviews of all of their water quality standards, and this is limiting citizen's ability to have meaningful input. This serious problem can be remedied with a simple modification to the proposed language as follows: (a)State Review. The State shall from time to time, but at least once every 3 years, hold public hearings for the purpose of reviewing [begin strikeout] applicable [end strikeout] [begin new text] all [end new text] water quality standards and, as appropriate, modifying and adopting standards; in particular, any water body segment with water quality standards that do not include the uses specified in section 101(a)(2) of the Act shall be re-examined every 3 years to determine if any new information has become available. If such new information indicates that the uses specified in section 101(a)(2) of the Act are attainable, the State shall revise its standards accordingly. Similarly, a State shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected. Procedures States establish for identifying and reviewing water bodies for review should be incorporated into their Continuing Planning Process. (b)Public Participation. The State shall hold a public hearings for the purpose of reviewing [begin strikeout] or [end strikeout] [begin new text] and [end new text] revising water quality standards, in accordance with provisions of State law, [begin new text] EPA's water quality management regulations (40 CFR Part 131) [end new text] and EPA's public participation regulation (40 CFR part 25). The proposed water quality standards revision and supporting analyses shall be made available to the public prior to the hearing. c) Submittal to EPA. The State shall submit the results of the review, [begin new text] any public comment received, [end new text] any supporting analysis for the use attainability analysis, the methodologies used for site-specific criteria development, any general policies applicable to water quality standards [begin new text] , [end new text] and any revisions of the standards to the Regional Administrator for review and approval, within 30 days of the final State action to adopt and certify the revised standard, or if no revisions are made as a result of the review, within 30 days of the completion of the review. Further, EPA must also begin using its authority under CWA Section 303(c)(4)(B) to promulgate or update water quality standards in any state that fails to conduct a Triennial Review if such standards are necessary to comply with the CWA. Where a state fails to consider CWA Section 304(a) criteria, EPA should also make a formal determination under CWA Section 303(c)(4)(B) whether new or updated criteria and upgraded uses are required under the CWA. As recommended in Section I of these comments, EPA should make amendments to 40 CFR § 131.22 to address these issues.

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Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.f:Section D 6.f:Section E 4.d 6.a 6.d 6.g 6.h 

# Comment ID 0216-A2.001.002
Author Name: Brisson Brook Organization: Trustees for Alaska on behalf of the Alaska Center for the Environment et al. Requirements for Triennial Reviews The EPA proposes to amend 40 C.F.R. § 131.20 to require that states review water quality criteria to determine if any criteria should be revised as a result of any new or updated CWA section 304(a) criteria recommendations during the state's triennial review process. Proposed Rule, 78 Fed. Reg. at 54,525. Commenters generally support this proposal. The CWA was intended to eliminate pollution and improve water quality for people and wildlife that rely on it. See 33 U.S.C. §§ 1251(a), (b), (c). The CWA recognized the role of states in the development of water quality standards and states were intended to aid in achieving the primary goals of the CWA: "to prevent, reduce, and eliminate pollution, [and] to plan the development and use (including restoration, preservation, and enhancement) of land and water resources." 33 U.S.C. § 1251(b). The triennial review process was intended to be a tool to ensure that water quality standards are updated on a consistent timeline. Additionally, states have always required to review all existing criteria as part of the triennial review, as well as any new standards from EPA. See also EPA, OFFICE OF WATER, EPA 832­ B-94-005S,WATER QUALITY STANDARDS HANDBOOK: SECOND EDITION 6.3.1 (Aug. 1994) [hereinafter WQS Handbook] (noting that during the triennial review process, states have to review their standards and take new statutes, regulations, guidance, legal decision, and other clarifications and revisions into account). Because the proposal intends to make triennial reviews more meaningful by clarifying state's obligations, Commenters support the proposal. Section 304(a) criteria are based on the "latest scientific knowledge." 33 U.S.C. § 1314(a)(1); 40 C.F.R. § 131.3 (defining section 304(a) criteria as those developed by EPA "based on the latest scientific information"). It necessarilyfollows that when the scientific basis for a criterion changes, it is an action-forcing event that requires states to re08/04/2015 05:01 PM EDT 2-526Chapter 2 - Comment Documents Triennial Reviews evaluate existing criterion or adopt new criterion. This is the same whether the state's criteria are based on EPA's section 304(a) criteria or other scientific basis. See 40 C.F.R. §§ 131.11(a)(1), (b). Commenters therefore understand the proposed rule to require a state to re-examine its criteria based on a new or revised section 304(a) criteria whether the state's existing criteria are based on the section 304(a) criteria or other basis. See Supplemental Information for Water Quality Standards Regulatory Clarifications Proposed Rule, EPA-F-13-027 at 11 (Aug. 2013) [hereinafter Supplemental Information] (proposing, "a State shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations") (emphasis added). [FN1] If a state elects not to modify or adopt new standards based on changes to EPA's section 304(a) criteria, the state must explain its reasoning and make that reasoning available to the public. The Proposed Rule does not explicitly require an explanation, but it should be clearly required as part of the supporting analysis made available to the public under subsection (b) and the triennial review submittal to EPA required by subsection (c). Requiring states to provide an explanation will ensure that the state's criteria continue to be based on sound science, protect designated uses, and are consistent with the goals of the CWA. See 40 C.F.R. § 131.2 (noting that the purpose of water quality standards is to "serve the purposes of the Clean Water Act"). Accordingly, Commenters recommend that the final rule and amended regulation explicitly require this. [FN2] Further, if a state completely fails to consider the new section 304(a) criterion in a triennial review or if the triennial review is occurring on a more protracted timeline (as it often does), EPA itself should consider whether a new or revised criterion is appropriate. See 33 U.S.C. § 1313(c)(4)(B). [FN1] Additionally, to ensure that the intent of the regulation is attained, EPA should clearly require states to review any existing criteria and consider whether new or revised criteria are necessary based on past section 304(a) criteria updates if the state did not consider the new or revised 304(a) criteria in a previous triennial review. [FN2] Requiring an explanation is also consistent with EPA's guidance in the Water Quality Standards Handbook. In its guidance, EPA indicates that while states are not bound by the section 304(a) criteria, when states adopt criteria that differ from EPA's, the state must "explain its reasons in a manner sufficient for a reviewer to determine that the approach chosen is based on sound scientific rationale . . . ." WQS Handbook 3.1.1.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 3.a
4.d 6.e 6.g

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2-527Chapter 2 - Comment Documents Triennial Reviews
6.h 

# Comment ID 0217-A2.001.013
Author Name: Hale Michelle Organization: Alaska Department of Environmental Conservation 3. Requirements of Triennial Reviews EPA is proposing to require states to regularly review and update 304(a) criteria. While this is a good goal and has the potential to help maintain strong state and national water quality standards programs, ADEC currently objects because it is premature to require states to review and update criteria until EPA acts on the tremendous backlog of updated criteria already made by states. EPA should continue to allow states flexibility in extended review periods where EPA adoption of revised 304(a) criteria require modification of state specific criteria or significant implementation challenges. For example, a state may have populations with higher fish consumption rates than the national EPA recommendation and an extended review period may be necessary to determine state specific human health criteria. EPA should also continue to allow flexibility in reexamining waters where CWA § 101(a) (2) aquatic life and recreation uses have been removed only if new information is submitted that supports a new or revised UAA. EPA should consider committing to approval of updated criteria within the 90-day time period specified in CWA § 303(a)(3)(c). The delays associated with states updating their criteria in a timely manner may be linked to extended and overly detailed EPA review of water quality criteria revision proposals.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.f:Section D 6.f:Section E 6.b 6.g 6.h 

# Comment ID 0218-A1.001.017
Author Name: Elardo Pam Organization: King County Department of Natural Resources and Parks

08/04/2015 05:01 PM EDT 2-528Chapter 2 - Comment Documents Triennial Reviews King County requests the EPA to allow longer timeframe for consideration of new/updated state or Tribal water quality standards rather than the current triennial review. King County's last comment concerns triennial reviews; in general, we agree that states and tribes should use the best available science to ensure our water quality standards are protective, yet not overprotective of designated uses. However, requiring "re-examination" of any new or updated CWA §304(a) criteria recommendation every three years is too burdensome.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section B 6.f:Section C 6.f:Section D 6.f:Section E 6.b 6.g 6.h 12.a 

# Comment ID 0219-A1.001.006
Author Name: McNelly Jeff Organization: ARIPPA 3. Requirements of Triennial Reviews The EPA is proposing to amend the triennial review requirements of paragraph (a) of § 131.20 to clarify that a state or tribe shall re-examine its water quality criteria during its triennial review to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected. We agree that the States should review their water quality standards as part of their triennial review. We believe that any modifications be based on sound science and is directly tied to the State's diversity in terrain, climate, biologic, chemical, and other physical conditions that may be different from the data used by EPA in the development of their water quality criteria recommendations.

Response

08/04/2015 05:01 PM EDT 2-529Chapter 2 - Comment Documents Triennial Reviews For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.e 6.h 

# Comment ID 0224-A1.001.009
Author Name: Ternieden Claudio Organization: Water Environment Federation D. Requirements of Triennial Reviews. EPA Proposal: EPA is proposing to revise § 131.20(a) to require a state or tribe to re-examine its water quality criteria during its triennial review to consider revisions to criteria in response to any new or updated criteria recommendations. WEF Comments: Section 303(c)(1) of the CWA requires states and tribes review their WQS at least once every three years, and modify and adopt standards as necessary. The WQS are then submitted to EPA for review and approval or disapproval. In its rationale for revision, EPA relates that stakeholders have expressed concern that state and tribe WQS may include criteria that are no longer protective of designated uses - and that these criteria remain unchanged through multiple triennial review cycles. Most states and tribes would disagree with this assertion. However, in practice, EPA reviews the WQS as a whole and approval/disapproval often hinges upon the adoption of new or updated EPA 304(a) criteria recommendations. It would appear that with this revision, EPA intends to codify its current WQS triennial review and approval practice. WEF supports this change, but requests that EPA makes it a priority to act in a timely manner on states' triennial review submittals. If EPA has not, or has only recently, approved/disapproved and/or otherwise commented on a State/Tribes most recent triennial submission, it would be a burden for the state or tribe to expend additional personnel and other resources on the next triennial review.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section B 6.f:Section C

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6.f:Section E 6.a 6.b 6.h 12.a 

# Comment ID 0229-A2.001.012
Author Name: Tillison Naomi Organization: Bad River Band of Lake Superior Tribe of Chippewa Indians Triennial Reviews The Tribe agrees with EPA's proposed revision to amend 40 CFR 131.20(a) to clarify that a state or authorized tribe should consider new or updated CWA 304(a) criteria recommendations published by EPA during a triennial review.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section B 6.a 

# Comment ID 0230-A1.001.011
Author Name: Ettinger Albert Organization: One of the counsel for the Environmental Law and Policy Center et al. One of our concerns about the proposed rule language is that it is unclear whether states must only reexamine its criteria to be revised in light of 304(A) recommendations that are new since the last triennial review or whether the review must take into account all water quality standards that the state has not reexamined despite past updates to 304(a) recommendations. Many states are far behind in updating water quality standards to meet existing 304(a) recommendations and clarification of the proposed language would be beneficial. Additionally, it is unclear what EPA's review of a state's reexamination of criteria with updated recommendations will entail. Will states need to provide justification for not revising criteria? Is consideration enough? Does EPA expect the states to provide its justification or revisions within the 3 year term? What happens if a state ignores this provision?

08/04/2015 05:01 PM EDT 2-531Chapter 2 - Comment Documents Triennial Reviews Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.f:Section D 4.d 6.g 

# Comment ID 0231-A2.001.031
Author Name: Sanderson Stuart Organization: The Colorado Mining Association Triennial Reviews (s. 131.20) Current triennial review regulations are nearly impossible to meet as-is, but EPA imposes additional requirements on States/Tribes making this issue even more onerous. EPA proposes to amend language to require States and Tribes to re-examine their water quality criteria during triennial reviews to determine if criteria should be revised based on new or updated CWA s. 304(a) criteria. States and Tribes must have the option of choosing whether or not to adopt new criteria on a case-by-case basis as appropriate to conditions unique to their waters, therefore the regulation must read that a State/Tribe "should" re-examine rather than a State/Tribe "shall" reexamine. If CWA s. 304(a) criteria are not updated by EPA on a regular basis to reflect new scientific information as is often the case, it seems unnecessary that States/Tribes be required to examine it.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.f:Section D 6.b 6.e 6.g 6.h

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# Comment ID 0234-A2.001.032
Author Name: Andes Fredric Organization: Federal Water Quality Coalition VI. TRIENNIAL REVIEW EPA is proposing changing its WQS to require States to evaluate, when they do their triennial reviews, whether their existing water quality criteria are still protective of designated uses. We believe States should decide what to focus their triennial review resources on, but if this provision is retained it not be one-sided. In other words, if States are going to review their criteria relative to the designated uses, they should review both whether the criteria are stringent enough and whether the criteria are too stringent - whether they go beyond the level that is needed to protect the uses. [FN6] In addition, the State should assess whether the criteria remain scientifically defensible as applied to water bodies in that State. [FN7] If new information shows that the criteria are no longer defensible, the criteria should be changed (no matter in which direction the change moves them). These measures would help ensure that at any point in time, State water quality criteria are set at the levels needed to protect the uses that have been designated - which, as noted above, need to also be appropriate and attainable. When that is accomplished, public and private resources can be focused, in an effective and efficient manner, on those water quality issues that truly need to be addressed and can be practically remedied. [FN6] The same is true of the uses themselves: during the triennial review process, the State should evaluate the designated uses to determine if, based on current information, it is reasonable to expect that they can be attained. If not, they should be revised, through the UAA process. [FN7] We note that many States decline to adopt § 304(a) criteria because the national criteria are based on conditions that are not applicable in that State. For example, most States have found the nutrient criteria recommended by EPA based on a reference approach are not scientifically defensible and should not apply to the water bodies in their State. EPA's regulations should not impose additional burdens on States that make such a determination. In other words, EPA's criteria guidance should not be presumptively applicable.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section B 6.f:Section C 6.f:Section D 6.b 6.g 6.h

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# Comment ID 0236-A2.001.010
Author Name: Weigel Brian Organization: Wisconsin Department of Natural Resources D. 131.20 Requirements of Triennial Review 40 CFR 131.20 State review and revision of water quality standards. A. Requirement for States to consider 304(a) changes to WQC as part of the Triennial Standards Review WDNR supports this revision and think it is appropriate to consider any changes EPA has made to 304(a) Water Quality Criteria during the Triennial Standards Review process. Clarification needed:

•How will EPA determine that a State has "re-examined its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected"?

•What will the State need to submit to support this determination?

•If we notify EPA of the TSR process initiation will EPA then notify us of any changes to 304(a) since our last TSR to ensure that we include those in our review?
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.g 

# Comment ID 0240-A2.001.013
Author Name: Turner Jr. James Organization: Murray Energy Corporation 3. Requirements of Triennial Reviews Section 131.20 State review and revision of water quality standards

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EPA is proposing to amend this section to require states and tribes to re-examine their water quality criteria during triennial reviews to determine if criteria should be revised based on new or updated 304(a) criteria.

a. The language in this section should be revised to reflect the requirements that are currently in place: states and tribes are not required to use EPA's 304(a) criteria recommendations, but merely consider them. This section of the rule should be revised to state that "a State should re-examine its water quality criteria" rather than "a State shall". The use of 'shall' implies that this must be done during every triennial review, and does not leave states the discretion they currently have, and should retain, of choosing whether to adopt new criteria on a case-by-case basis as they deem appropriate, based on their superior knowledge of the unique conditions of their waters and their state.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.f:Section D 6.e 6.g 6.h 

# Comment ID 0242-A2.001.003
Author Name: Allmon Eric Organization: Lowerre, Frederick, Perales, Allmon & Rockwell on behalf of Clean Water Action et al. Consideration of CWA § 304(a) Criteria Recommendations in Triennial Reviews Commenters support EPA's effort to more explicitly require that states consider EPA's criteria recommendations pursuant to CWA § 304(a) in performing triennial water quality standard reviews. Commenters believe that EPA should go further, and require that each state adopt water quality standards at least as stringent as those recommended by EPA pursuant to CWA § 304(a) no later than four years after issuance of such recommended criteria by EPA. Texas' decision to ignore EPA's recommendations has led to the continued use of inappropriately lax water quality criteria for some parameters that are inconsistent with the best scientific information available. For example, in 2002 EPA adopted recommended ambient human health water quality criteria for mercury of 0.3 mg/kg as a fish tissue concentration.[FN1] Yet, more than ten years later, Texas still maintains a human health criterion for mercury of 0.7 mg/kg in its water quality standards.[FN2] This refusal by Texas to base its water quality standards on

08/04/2015 05:01 PM EDT 2-535Chapter 2 - Comment Documents Triennial Reviews the most current and scientifically sound information available has placed the health of Texas residents at risk. Citizens near Caddo Lake are among those most affected by this failure, as many of those residents rely on fish for their subsistence. [FN1] United States Environmental Protection Agency, National Recommended Water Quality Criteria: 2002, November 2002, EPA-822-R-02-047, p. 12. [FN2] 30 TAC § 307.6(d)(1), Table 2.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section D 6.g 6.h 

# Comment ID 0244-A2.001.019
Author Name: Loomis Marion Organization: Wyoming Mining Association Triennial Reviews Current triennial review regulations are nearly impossible to meet as-is, but EPA imposes additional requirements on the State making this issue even more onerous. EPA proposes to amend language to require the State to re-examine their water quality criteria during triennial reviews to determine if criteria should be revised based on new or updated CWA 304(a) criteria. States must have the option of choosing whether or not to adopt new criteria on a case-by-case basis as appropriate to conditions unique to their waters. Therefore the regulation must read that a State/Tribe "should" re-examine rather than a State/Tribe "shall" re-examine. If CWA 304(a) criteria are not updated by EPA on a regular basis to reflect new scientific information as is often the case, it seems unnecessary that the State be required to examine it.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C

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6.f:Section D 6.b 6.e 6.g 6.h 

# Comment ID 0244-A2.001.021
Author Name: Loomis Marion Organization: Wyoming Mining Association Additionally, EPA should suggest that states review both if criteria are stringent enough to protect designated uses, as well as whether criteria are overly stringent and whether uses are no longer attainable.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section C 6.g 

# Comment ID 0248-A2.001.008
Author Name: Jellerson David Organization: Mosaic Fertilizer LLC 3. Triennial Reviews EPA proposes to revise 40 C.F.R. § 131.20 to include a requirement that states review Section 304(a) guidance for any potential impacts to state water quality standards ("WQS"). EPA's proposed language is unclear in terms of the scope of this new triennial review requirement. Mosaic encourages EPA to clarify that each triennial review is only required to assess Section 304(a) guidance that has been published since the last triennial review by the state. Moreover, while any fair reading of the Proposed Rule's language would indicate that EPA intends only for states to consider the Section 304(a) guidance, and that the Proposed Rule is not intended to create an affirmative obligation to implement that guidance in any particular way, EPA needs to make this fair reading more explicit to avoid any confusion or ambiguity. States should not be obliged to reach back through decades of Section 304(a) guidance documents at every triennial review; nor should states be at risk of litigation for failing to adopt reflexively any and all Section 304(a) guidance if, based on the exercise of their discretion and consideration of all relevant factors, they believe that other sources of scientific data provide a firmer basis for making decisions on particular water quality standards.

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Response For response to this comment, see the following response essay(s): 6.f 6.f:Section D 6.g 6.h 

# Comment ID 0249-A2.001.008
Author Name: Calamita F. Paul Organization: General Counsel on behalf of The Wet Weather Partnership et al. 3. Requirements of Triennial Review The Associations support EPA's clarification that the Triennial Review process by the state must determine whether any state criteria should be revised in light of new or revised EPA water quality criteria developed by the Agency under CWA section 304. We believe this is consistent with the CWA and reflects the current practice of most of the states. In particular, we support and ask that the Agency retain its proposed "to assure that designated uses continue to be protected" language, 40 CFR § 131.20(a) (proposed), because it correctly characterizes the CWA standard applicable to the states, and it provides valuable context to the requirement.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 

# Comment ID 0250-A2.001.007
Author Name: Batterton Carol Organization: Water Environment Association of Texas, Texas Association of Clean Water Agencies, and Texas Water Conservation Association [This excerpt contains red-line/strikeout text. Refer to the original document for recommended edits.] Triennial Review Scope and Requirements

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If adopted, the proposed regulation would establish a new triennial review requirement that states must evaluate whether existing water quality criteria continue to be protective of designated uses. We are concerned that the approach described in the proposed rule will limit TCEQ's flexibility to adopt criteria different from what is in the 304(a) guidance document. This will further limit a state's ability to deal with site-specific issues, leading to inappropriate one size fits all water quality standards development. WEAT, TACWA, and TWCA believe that the TCEQ successfully achieves this standard through its current approach to the triennial review and the proposed language should be modified as follows: The third sentence in 40 CFR Part 131.20 (a) [the proposed amendment to this section] should be revised as follows, "Similarly a State shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA Section 304 (a) criteria recommendations [begin new text] taking into consideration the appropriate adaptation of such recommendations based on the relevant ecological, physical, and hydrological characteristics of the water subject to the criteria,[end new text] to assure that designated uses [being strikeout] (continue to be) [end strikeout] [begin new text] are [end new text] protected." [Parenthesis indicates deletions; underline indicates additions]
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section D 6.b 6.g 6.h 

# Comment ID 0251-A2.001.011
Author Name: Wigal Jennifer Organization: Oregon Department of Environmental Quality II) Comment regarding Triennial Reviews (40 CFR §131.20) EPA should revise its proposed rule for additional clarity Section 131.20, as amended, requires states to address two separate issues as part of triennial review: attainability of CWA section 101(a)(2) uses in water body segments that do include those uses, and revision of criteria in light of new or updated 304(a) criteria. For clarity and flow, DEQ proposes the following revisions to the proposed rule:

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131.20State review and revision of water quality standards. (a)State Review. The State shall from time to time, but at least once every 3 years, hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards. Procedures States establish for identifying and review water bodies for review should be incorporated into their Continuing Planning Process. (1)Any water body segment with water quality standards that do not include the uses specified in section 101(a)(2) of the Act shall be re-examined every 3 years to determine if any new information has become available. If such new information indicates that the uses specified in section 101(a) (2) of the act are attainable, the State shall revise its standards accordingly. (2)A State shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected. Alternatively, the added language regarding 304(a) criteria should be moved to the last sentence of the paragraph. In its current position, it interrupts the discussion regarding identifying and reviewing uses for water bodies, as the sentence immediately following the added provision discusses procedures for identifying and reviewing water bodies for review.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 

# Comment ID 0252-A2.001.032
Author Name: Fry Eric Organization: Peabody Energy Triennial Reviews (s. 131.20) Current triennial review regulations are nearly impossible to meet as-is, but EPA imposes additional requirements on States/Tribes making this issue even more onerous. EPA proposes to amend language to require States and Tribes to re-examine their water quality criteria during triennial reviews to determine if criteria should be revised based on new or updated CWA s. 304(a) criteria. States and Tribes must have the option of choosing whether or not to adopt new criteria on a case-by-case basis as appropriate to conditions unique to their waters, therefore the regulation must read that a State/Tribe "should" re-examine rather than a State/Tribe "shall" reexamine. If CWA s. 304(a) criteria are not updated by EPA on a regular basis to reflect more recent scientific information as is often the case, it seems unnecessary that States/Tribes be required to examine it.

08/04/2015 05:01 PM EDT 2-540Chapter 2 - Comment Documents Triennial Reviews Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.f:Section D 6.b 6.e 6.g 6.h 

# Comment ID 0255-A2.001.007
Author Name: Quaempts Eric Organization: Confederated Tribes of the Umatilla Indian Reservation Where appropriate, EPA can and should compel States to adopt necessary criteria by a specific date, and the CTUIR DNR supports the proposed language clarifying this obligation.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section D 6.h 

# Comment ID 0256-A2.001.009
Author Name: Shepherd Hal Organization: The Center for Water Advocacy In addition to the modest amendments proposed by EPA, we urge consideration and adoption of the following amendments: 1) Clarify that states must review the entirety of their standards in each Triennial Review and the results of that review, including criticisms and evidence submitted by the public, need to be submitted to EPA for its review.

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2) Clarify that during each triennial review period, states must adopt new section 304(a) criteria adopted by EPA to protect human health or criteria that provide the equivalent level of protection of designated uses. 3) Clarify that if a state elects not to modify or adopt new standards based on EPA's changes to section 304(a) criteria, it must explain its reasoning and make it available for public review.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.f:Section D 6.d 6.g 6.h 

# Comment ID 0257-A1.001.022
Author Name: Harpole Chad Organization: Kentucky Chamber of Commerce Triennial Review Procedures -- 40 CFR 131.20 EPA has proposed to amend 40 CFR 131.20(a) to require a state to "reexamine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA Section 304(a) criteria recommendations to assure that designated uses continue to be protected." The Chamber is concerned this proposed change would be used to force states to adopt EPA recommended criteria or to demonstrate to EPA during each Triennial Review why recommended criteria are not being adopted even if the state has previously determined that such recommended criteria are not necessary to protect uses. This proposed change infringes on the state's right to designate uses and the criteria that the state deems are appropriate for meeting those uses. Nothing in Section 304 of the Act provides for EPA to mandate that states take action on newly-developed or revised recommended criteria. This is consistent with the overall structure of the water quality standards program of the Act in which EPA can provide guidance to the states on scientific issues, but the responsibility for evaluating and determining uses and the criteria necessary to support those uses is left to the states. The proposed change to 40 CFR 131.20 also is ambiguous as to what would be considered adequate "reexamination" of water quality criteria by a state. The Chamber also questions how this provision would be enforced. Would EPA withhold approval of other water quality standards in order to force reconsideration of certain standards? Would this turn into an obligation for states to revise standards that EPA believes are potentially not sufficient? In sum, the Chamber

08/04/2015 05:01 PM EDT 2-542Chapter 2 - Comment Documents Triennial Reviews opposes this change as it is another unnecessary restriction on a state's inherent flexibility to develop its own water quality standards. Finally, EPA is proposing, without sufficient explanation, to remove the word "necessary" from 40 CFR 131.2. See 78 Fed. Reg. at 54537. EPA stated this deletion is needed for consistency with 40 CFR 131.11. The purpose of this change should be further explained. This change could be construed as authorizing states to adopt unnecessary restrictions and criteria.

Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section C 6.f:Section D 6.f:Section E 3.a 4.d 6.g 6.h 10.a 

# Comment ID 0263-A2.001.012
Author Name: Gretchen Watkins Larry Wawronowicz Organization: Lac du Flambeau Band of Lake Superior Tribe of Chippewa Indians Triennial Reviews The Tribe agrees with EPA's proposed revision to amend 40 CFR 131.20(a) to clarify that a state or authorized tribe should considered new or updated CWA 304(a) criteria recommendations published by EPA during a triennial review.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section B 

# Comment ID 0264-A2.001.022
Author Name: Chard-McClary Shellie

08/04/2015 05:01 PM EDT 2-543Chapter 2 - Comment Documents Triennial Reviews Organization: Association of Clean Water Administrators It is also important that EPA clarifies what is required for a state to determine that criteria should or should not be revised in light of any new 304(a) criteria recommendations. It should not mean that a state needs to adopt or even take to rulemaking every recommendation. It should rather be considered sufficient if a state takes into consideration a new 304(a) criterion recommendation using its best information and/or judgment. For example, consider EPA's national recommendation for aquatic life mercury criteria and the hurdle they face with ESA consultation in the Pacific Northwest. A state may, upon consideration, decide it is best to not adopt an EPA 304(a) recommendation, and EPA may even concur.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.f:Section D 6.g 6.h 

# Comment ID 0266-A2.001.009
Author Name: Reese Thomas Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 9. Section 131.20 amendment The FWF and the Davises request EPA amend Section 131.20 to require states and tribes to re-examine their WQSs to determine if their water quality criteria should be revised in light of any new or updated CWA Section 304(a) criteria to assure implementation of WQSs and the continued protection of designated uses, existing uses (Tier 1 uses), and antidegradation WQSs.

Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section E

08/04/2015 05:01 PM EDT 2-544Chapter 2 - Comment Documents Triennial Reviews 6.g 

# Comment ID 0266-A2.001.017
Author Name: Reese Thomas Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 9. The FWF and the Davises request EPA amend Section 131.20 to require states and tribes to re-examine their WQSs to determine if any water quality criteria should be revised in light of new or updated CWA Section 304(a) criteria to assure implementation of WQSs and the continued protection of designated uses, existing uses (Tier 1 uses), and antidegradation water quality standards.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section E 6.g 

# Comment ID 0267-A1.001.003
Author Name: Ingle April Organization: Georgia River Network Requirements of Triennial Reviews: We support EPA's proposal to require states and tribes to solicit public comments to "scope" out the Triennial Review, rather than presenting the public with a shortened list of topics to respond to. We also support the proposal to require states and tribes to review their water quality criteria and ensure they are still protective of uses as part of the Review, and compare those criteria with EPA's recommendations.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.g 6.h

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# Comment ID 0268-A2.001.010
Author Name: Bell Nina Organization: Northwest Environmental Advocates D. Requirements of Triennial Reviews We support EPA's proposal that triennial reviews be more than the current non-triennial random updates to state standards but, rather, include systematic reviews of needed upgrades. Again, it is a complete mystery why EPA does not cite the requirements of CWA § 303(c)(2)(B) in this context as it is completely on point with the discussion. Like a nervous tic, EPA's failure to mention this statutory amendment speaks volumes about its own willingness to ensure that states comply with the provision. It certainly weakens EPA's position vis-à-vis recalcitrant states that fail to regularly update their toxic criteria in a timely – every three year – fashion. In addition, EPA misleads the readers of its preamble by saying that "[w]hile states and tribes are not required to use EPA's 304(a) criteria recommendations, the EPA agrees that it is important for states and tribes to consider any new or updated 304(a) criteria as part of their triennial review[.]" Id. at 54525. True, states are not required to adopt EPA's recommended criteria. But the statute requires that they update their criteria for toxics. It is not just, as EPA suggests, that it is "important" that they "consider" them. We see no ambiguity in the statutory language of "shall adopt criteria for all toxic pollutants" that EPA could read as saying the required actions are merely "important." Again, EPA's preamble and its proposed rule text say as much about its own failures as it does about the failures of the states with regard to meeting Congressional intent to timely update toxic criteria.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.f:Section E
6.e 6.g 6.h 

# Comment ID 0269-A2.001.004
Author Name: Klotz Mark Organization: New York State Department of Environmental Conservation

08/04/2015 05:01 PM EDT 2-546Chapter 2 - Comment Documents Triennial Reviews (3)Triennial Reviews EPA proposes to amend 131.20(a) to clarify the requirement for States to reexamine their criteria where EPA has published new or updated section 304(a) criteria recommendations. NYSDEC always utilizes the best and most current science when revising or deriving new state ambient WQS, so this change would not significantly impact our program. However, from a national WQS program perspective, this is a reasonable requirement which NYSDEC supports.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.a 

# Comment ID 0271-A1.001.005
Author Name: Montoya Victor Organization: Pueblo of Sandia 5. Amendments to § 131.20 (a). The Pueblo of Sandia agrees with the amendments proposed. The Pueblo of Sandia agrees that criteria in the WQS should be new or updated if there are new or updated criteria available at the time of the triennial review. Consideration of new or updated EPA's 304 (a) criteria recommendations should be reviewed during the triennial review process.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.a 

# Comment ID 0272-A2.001.013
Author Name: Jennifer Chavez Janette Brimmer Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27

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C. EPA Must Utilize Its Authorities Under § 303 To Ensure That States Are Reviewing And Updating, With Effective Public Participation, Their Water Quality Standards On A Triennial Basis. First, EPA must renew its efforts to ensure that states are more compliant with the obligation to review their standards not less than every three years. Part of the problem is that once a state falls off the schedule the task becomes larger with each passing year, making it more and more difficult for a state to do thorough and substantive Triennial Review. Getting states back on schedule will do much to alleviate this seeming burden. If a state is keeping current with standards and criteria development, the task each three-year interval is lessened. An important component of EPA keeping states on task is for EPA to take seriously its § 303 authorities to determine that a state is not keeping its standards up to date and adequate as necessary to meet the requirements of the Clean Water Act. States can also lessen their burdens by promptly adopting EPA-developed criteria (such as for nutrients or toxics), availing themselves of EPA's work. Second, EPA must make clear to states that the entirety of their standards must be open for meaningful consideration in each Triennial Review. States must allow full participation by the public: in a situation such as that in Minnesota, a state must not be allowed to object and foreclose participation in the formal rulemaking process simply because a citizen or advocacy organization wishes to present evidence for a more expansive review or a change not desired or contemplated by the state agency. Without this, the public participation is a sham and not compliant with the Clean Water Act. EPA must further require states to submit the results of the entire public process to EPA as the full Triennial Review-the criticisms and the evidence for changes that the state may not be proposing must be included. EPA must then review the entirety of the submission, again including all of the public comments and evidence, in determining whether to approve the state's Triennial Review. A necessary part of EPA's review and action must be the public submissions. If a public submission adequately demonstrates the need for a change or addition to a state's standards and the state has refused, EPA should disapprove the submission as to that point and promulgate an adequate standard. The Water Protection Groups are mindful of the fact that this may increase burdens on the states and EPA from the amount of time spent now on Triennial Review, but these are burdens plainly contemplated and indeed required by the Clean Water Act. For too long, Triennial Review has been ineffective and not compliant. To manage those burdens, EPA could limit its review to the state's proposed changes and those areas that the public actually commented on and/or submitted evidence and argument on. (That is, there would be no need to review standards in EPA's triennial review assessment that neither the state nor the public address.) This approach is entirely within EPA's authorities (and better conforms to recent case law), more fully implements the triennial review requirements of the Clean Water Act and ensures that someone is minding the water quality store as contemplated by the Clean Water Act's oversight structure. EPA should revise its current rulemaking to include this process to more fully address the problems with Triennial Review.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B

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6.f:Section C 6.f:Section D 4.d 6.d 6.g 6.h 

# Comment ID 0274-A2.001.006
Author Name: Yeaton Violet Organization: Region 10 Regional Tribal Operations Committee 3. Triennial Review The Tribal Caucus strongly supports the proposed rule change -- "EPA is proposing to amend the triennial review requirements of paragraph (a) of § 131.20 to clarify that a state or tribe shall re-examine its water quality criteria during its triennial review to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected."
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.a 

# Comment ID 0276-A2.001.012
Author Name: Alves James Organization: Hopping Green & Sams on behalf of Florida Electric Power Coordinating Group, Inc. Triennial Review In § 131.2, EPA proposes to delete the word "necessary" before "criteria." Thus water quality standards would be described as including criteria "that protect the designated uses" instead of "necessary" criteria to protect the uses. This appears to represent an intention to induce states to develop criteria that are overly protective. This effort to make it easy to set criteria more stringent than necessary represents substandard environmental policy.

08/04/2015 05:01 PM EDT 2-549Chapter 2 - Comment Documents Triennial Reviews Response For response to this comment, see the following response essay(s): 6.f 6.f:Section C 6.f:Section E 6.g 10.a 

# Comment ID 0278-A2.001.009
Author Name: Hornback Chris Organization: National Association of Clean Water Agencies Triennial Reviews NACWA supports EPA's overriding interest in greater public transparency, better stakeholder information, and more effective implementation of the WQS program, including as part of the required triennial review process. However, requiring states to re-examine their criteria in light of any new or updated CWA §304(a) criteria recommendations goes too far.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 

# Comment ID 0278-A2.001.011
Author Name: Hornback Chris Organization: National Association of Clean Water Agencies Whether and how a state conducts its triennial review process is properly and entirely within the state's discretion. It may be perfectly appropriate for a state to consider, or re-examine, EPA's §304(a) criteria recommendations as part of the triennial review. But doing so should not be based on a mandate from EPA, particularly one that is not well defined. What does it mean for a state to "re-examine" its criteria in this context? On what basis would EPA disapprove a state's action for failure to examine, or inadequate examination of, EPA's criteria recommendations? What happens if a state has too many other issues to consider and, as a matter of state primacy and discretion, elects to defer consideration of EPA's criteria recommendations to the next triennial review cycle?

08/04/2015 05:01 PM EDT 2-5504.c Chapter 2 - Comment Documents Triennial Reviews EPA's §304(a) criteria recommendations serve as guidance to states. They are not binding, and as a consequence, states have no obligation to adopt them. States are free to consider them, and there are many good reasons to do so. However, NACWA does not believe that it would be appropriate for EPA to compel states to re-examine their criteria on the basis of EPA's guidance, and thereafter subject the states to the threat of EPA disapproval if EPA does not like the way in which the states conducted this re-examination.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section C 6.f:Section D 6.f:Section E 3.a
4.d 6.e 6.g 6.h 

# Comment ID 0282-A2.001.006
Author Name: Gildersleeve Melissa Organization: State of Washington, Department of Ecology 3. Triennial reviews Ecology recommends that EPA does not revise 40CFR131.20(a) to include requirements associated with 304(a) guidance values. Adding the discussion of EPA's 304(a) guidance values to the CFR will require states to review EPA's entire list of recommended criteria during every state triennial review. Trying to conduct such a requirement every three years is neither reasonable nor feasible given the workload and timeframes associated with such a requirement. EPA's recommended criteria are guidance values developed to assist states in the protection of designated uses, but may incorporate scientific rationale, policy, and risk management choices that are different from those made by individual states. Adding this specific requirement creates an additional workload for states and could increase liability for both the states and EPA if the extent to which it is complied with is called into question. The current language already addresses the designated uses and attainability of designated uses, and the language at 40CFR131.11(b) already speaks to how states can use the 304(a) guidance as well as a state's ability to modify the 304(a) guidance.

08/04/2015 05:01 PM EDT 2-551Chapter 2 - Comment Documents Triennial Reviews Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.e 6.g 

# Comment ID 0283-A1.001.010
Author Name: Thorme Melissa Organization: Downey Brand Attorneys LLP on behalf of several clients [This excerpt contains red-line/strikeout text. Refer to the original document for recommended edits.] We would like clarification that the Triennial Review should not be classified as a review only to determine if higher uses or more stringent criteria should be adopted. This appears to be the general direction of the description contained on page 54525 of the proposed regulations. New information should also be considered that uses are not attainable and should be removed, or that criteria are overly stringent and should be reconsidered. Many times, U.S. EPA has promulgated new criteria that are less stringent than previous criteria, yet the more stringent criteria are maintained even though no longer scientifically justified. U.S. EPA should encourage States to revise criteria either up or down based on the latest scientific data, and based on local site specific conditions. For example, U.S. EPA promulgated a cyanide criteria in the California Taxies Rule in 2000 that was based on toxicity levels related to an East Coast crab species that does not exist in California, thus the criteria were much more stringent than necessary to protect local species. Although some regions of California have adopted site-specific criteria that removed the East Coast crab species, this should be done statewide (by U.S. EPA in a modification to the California Toxic Rule or by the State Water Board) based on this more updated and more site specific scientific information. For these reasons, the final rule should encourage modification based on the latest science and local information whether or not the ultimate water quality standards are more or less stringent. For this reason, we recommend the following change to the regulatory proposal in 40 C.F.R. §131.20(a): (a)... Similarly, a State shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses [begin strikeout text] continue to be [end strikeout text] [begin new text] are reasonably [end new text] protected.
Response For response to this comment, see the following response essay(s): 6.f

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6.f:Section A 6.f:Section C 6.f:Section D 6.e 6.g 

# Comment ID 0284-A2.001.006
Author Name: Gildersleeve Melissa Organization: State of Washington, Department of Ecology 3. Triennial reviews Ecology recommends that EPA does not revise 40CFR131.20(a) to include requirements associated with 304(a) guidance values. Adding the discussion of EPA's 304(a) guidance values to the CFR will require states to review EPA's entire list of recommended criteria during every state triennial review. Trying to conduct such a requirement every three years is neither reasonable nor feasible given the workload and timeframes associated with such a requirement. EPA's recommended criteria are guidance values developed to assist states in the protection of designated uses, but may incorporate scientific rationale, policy, and risk management choices that are different from those made by individual states. Adding this specific requirement creates an additional workload for states and could increase liability for both the states and EPA if the extent to which it is complied with is called into question. The current language already addresses the designated uses and attainability of designated uses, and the language at 40CFR131.11(b) already speaks to how states can use the 304(a) guidance as well as a state's ability to modify the 304(a) guidance.
Response For response to this comment, see the following response essay(s): 6.f 6.f:Section A 6.f:Section B 6.f:Section D 6.e 6.g


# 6.G - TRI - OTHER GENERAL Comment ID 0178-A2.001.019
Author Name: Burnell Barry

08/04/2015 05:01 PM EDT 2-553Chapter 2 - Comment Documents Triennial Reviews Organization: Idaho Department of Environmental Quality c) Scope of review While Idaho sees merit in public outreach for scoping triennial review we know from experience that this is a time consuming effort of public education that does not necessarily yield useful ideas. Such scoping does not fit well into the idea of a top to bottom review of standards every three years. Five years or longer is a more reasonable review cycle, if public scoping is desired. Since three years is a CWA requirement and would thus require a change in statute, we believe it reasonable for EPA to continue to accept targeted review, and incremental revision of water quality standards, trusting in and working collaboratively with their state partners to know what parts of the water quality standards are most in need of revision.
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section A 6.g:Section B 6.d 

# Comment ID 0184-A2.001.011
Author Name: Curley Ed Organization: The Western Coalition of Arid States Existing criteria guidance documents do not adequately recognize the need to adapt standards to reflect these realities. These documents should be modified to reflect the reality that ephemeral, intermittent, and effluent-dominated streams are, in many ways, fundamentally different from other types of streams: and, thus, appropriate adjustments should be made when establishing water quality standards. EPA should assist in or support the development of methods to determine scientifically defensible, site-appropriate water quality standards for the ephemeral, intermittent, and effluent-dependent waters of the West, such as the Arid West Water Quality Research Project. EPA is uniquely positioned to conduct or oversee the relevant scientific studies. It is not just their responsibility to provide appropriate guidance for protecting the ecosystems of perennial waters. In a large part of the nation the majority of waters are not comparable to perennial waters. EPA has a responsibility toprovide appropriate objectives for these waters, too, taking into consideration the natural setting and the costeffectiveness of proposed regulations.
Response For response to this comment, see the following response essay(s):

08/04/2015 05:01 PM EDT 2-554Chapter 2 - Comment Documents Triennial Reviews 6.g 6.g:Section C 

# Comment ID 0184-A2.001.014
Author Name: Curley Ed Organization: The Western Coalition of Arid States 3. EPA should develop protocols for adapting criteria recommendations to be appropriate for arid and semi-arid waters.
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section C 

# Comment ID 0189-A1.001.012
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 Therefore, we recommend that EPA use its authority under 303(c)(4)(B) to update the WQS of any state that has substantially failed to perform its duty to update standards every three years and assure that all states have protective standards.
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section D 

# Comment ID 0189-A1.001.014
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

08/04/2015 05:01 PM EDT 2-555Chapter 2 - Comment Documents Triennial Reviews Also, where a state has failed to consider new EPA criteria, a determination should be made that a new or modified standard is necessary for that state.
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section D 

# Comment ID 0195-A1.001.012
Author Name: Norton Ken Organization: National Tribal Water Council EPA should use its authority under 303(c) (4) (B) to update the WQS of any state that has substantially failed to perform its duty to update standards every three years and assure that all states have protective standards.
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section D 

# Comment ID 0195-A1.001.016
Author Name: Norton Ken Organization: National Tribal Water Council Also, where a state has failed to consider new EPA criteria, a determination should be made that a new or modified standard is necessary for that state. Finally, EPA should require that states consider changes to standards that are proposed by the public during the standards review process or during the state continuing planning process required under Section 303(e) of the CWA. This requirement would enable tribes without authorized WQS programs to recommend revisions that would be more protective of critical subsistence and traditional water resources.
Response

08/04/2015 05:01 PM EDT 2-556Chapter 2 - Comment Documents Triennial Reviews For response to this comment, see the following response essay(s): 6.g 6.g:Section B 6.g:Section D 

# Comment ID 0196-A1.001.025
Author Name: Bostic Jason Organization: West Virginia Coal Association Triennial Review Requirements WVCA agrees that water quality standards should be reviewed and modified based on sound science. However, EPA should require that states review both, if criteria are stringent enough to protect designated uses, as well as whether criteria are overly stringent and whether uses are no longer attainable.

Response For response to this comment, see the following response essay(s): 6.g 6.g:Section E 

# Comment ID 0197-A1.001.010
Author Name: Garrison Naoh Organization: Natural Resources Defense Council We further urge EPA to make clear that where states do not demonstrate that, on the record through a public process, the state properly considered changes to standards for which EPA has published new or revised criteria since the last triennial review, EPA will make a determination that a new or modified standard is necessary, and will refuse to approve any proposed changes or modifications to other WQS from that state until the new or modified criteria is adopted.
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section D

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# Comment ID 0198-A1.001.006
Author Name: Card Bethany Organization: Massachusetts Department of Environmental Protection State review and revision of water quality standards Federal WQS regulations require that state WQS be reviewed by states at least once every three years. The proposed rule provides that: "a State shall re-examine its water quality criteria to determine if any criteria should be revised in ligh t of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected." MassDEP requests EPA confirm that state reexamination of EPA new or revised recommended criteria would be required in the context of the triennial review process, but not more frequently. Given that EPA's recommended criteria are intended for use on a national basis, they do not always capture adequately state to state differences in water quality. This, in turn, can lead to overly stringent EPA recommendations in some cases, when less stringent criteria would be protective. This was true most recently in certain Massachusetts and Connecticut waters with respect to the EPA recommended copper criteria. Both states, instead, developed site specific copper criteria, which proved to be a resource intensive undertaking. MassDEP requests that EPA add flexibility to its language to allow states time to develop their own criteria when that is the most prudent approach.
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section A 6.g:Section C 6.g:Section E 6.g:Section G 6.g:Section H 

# Comment ID 0201-A1.001.015
Author Name: Godfrey Mike Organization: Alabama Power Separately, Alabama Power expects this proposed triennial reexamination of water quality criteria to cut both ways. In other words, if States are going to review their criteria relative to the designated uses, they should review both whether the criteria are stringent enough, and whether the criteria are too stringent (i.e. go beyond the level that is needed to protect the uses). States should also evaluate whether their designated use criteria remain scientifically defensible. In some instances, EPA has promulgated new 304(a) criteria using more robust data and newly acquired scientific

08/04/2015 05:01 PM EDT 2-558Chapter 2 - Comment Documents Triennial Reviews information that has demonstrated that less stringent water quality criteria are protective of beneficial uses. If new information shows one or more criteria are not working as designed, the criteria should be changed-regardless of the direction of the change. Doing so would ensure that public and private resources are being focused in an effective and efficient manner on those water quality issues that truly need to be addressed and can be practically remedied.
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section E 

# Comment ID 0218-A1.001.009
Author Name: Elardo Pam Organization: King County Department of Natural Resources and Parks

•Allow for a nine-year or longer timeframe for consideration of new or updated state or Tribal water quality standards rather than the current triennial review
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section A 

# Comment ID 0218-A1.001.018
Author Name: Elardo Pam Organization: King County Department of Natural Resources and Parks In addition to defining and specifying what the EPA considers an adequate re-examination, the EPA should also consider extending the timeframe for consideration and adoption of new or updated information into state or Tribal standards on a longer revolving period, such as a nine or twelve year basis. While the CWA mandates reconsideration of criteria on a triennial basis, the rapidly evolving laboratory methods and exponential increases in information on toxicological affects cannot reasonably be evaluated every three years. Thank you for this opportunity to comment on the EPA's proposed revisions.
Response

08/04/2015 05:01 PM EDT 2-559Chapter 2 - Comment Documents Triennial Reviews For response to this comment, see the following response essay(s): 6.g 6.g:Section A 6.g:Section F 

# Comment ID 0223-A1.001.006
Author Name: Lindekugel Buck Organization: Grassroots Attorney on behalf of Southeast Alaska Conservation Council Alaska's inadequate fish consumption value provides a critical example of a situation where states may retain criteria in their WQS that no longer protect designated uses for multiple triennial review cycles. For example, despite repeated requests from SEACC (in 2011 and again in 2012) and others for the State of Alaska to update its fish consumption value, Alaska continues to determine the human health criteria for consumption of seafood based on the since outdated default EPA level of 6.5g/day/person/year [FN3]. This criterion is inadequate to protect most Alaskans. In addition to the modest amendments proposed by EPA, we urge consideration and adoption of the following amendments: 1) Clarify that states must review the entirety of their standards in each Triennial Review and the results of that review, including criticisms and evidence submitted by the public, need to be submitted to EPA for its review. 2) Clarify that during each triennial review period, states must adopt new section 304(a) criteria adopted by EPA to protect human health or criteria that provide the equivalent level of protection of designated uses. 3) Clarify that if a state elects not to modify or adopt new standards based on EPA's changes to section 304(a) criteria, it must explain its reasoning and make it available for public review. [FN3] http://water.epa.gov/scitech/swguidance/fishshellfish/fishadvisories/upload/day1l.pdf)
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section A 6.g:Section B 6.g:Section C 6.g:Section J 6.f

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# Comment ID 0230-A1.001.013
Author Name: Ettinger Albert Organization: One of the counsel for the Environmental Law and Policy Center et al. Finally, EPA should add additional language clarifying that the Agency will use its authority under 303(c)(4)(B) to update the water quality standards of any state that has substantially failed to perform its duty to update standards every three years in order to assure that all states have protective standards. In our experience, states do not currently review their standards on anything like a 3year basis despite the requirement of Section 303(c) of the CWA. Frequently when they do review standards, states only consider the standards that might be weakened to facilitate allowing more pollution, rather than considering all standards, others of which may require strengthening to meet current scientific information. [FN2] It is important for EPA to exercise its authority under Section 303(c)(4)(B) to ensure that all states are complying with the triennial review requirement of the CWA. For example, in Wisconsin the Wisconsin Department of Natural Resources (WDNR) and EPA both know that the state's antidegradation rule does not meet Clean Water Act requirements. Rule revisions to address this deficiency were proposed in 2008 as a priority in triennial review. No changes were made. Those rule revisions were again proposed as a high priority in the 2011 triennial review, however, WDNR recently indicated that it would no longer be prioritizing those rule revisions because it is now awaiting development of federal rules. [FN2] In some cases the topics suggested for triennial review are not related to water quality standards at all and deal with other issues. Again in Wisconsin, the DNR has prioritized several non-water quality standards issues–such guidance on NPDES permitting procedures, or proposed revisions to water quality standards that would weaken those standards–as higher priorities than review of a number of waters that have not met the fishable and swimmable goals since 1991. This is despite the clear language in the Clean Water Act and 40 C.F.R. 131.20 that directs states to review these waters and requests to undertake such a review in both the 2008 and 2011 triennial review.

Response For response to this comment, see the following response essay(s): 6.g 6.g:Section B 6.g:Section D 6.g:Section J 

# Comment ID 0237-A2.001.011
Author Name: Tucker James Organization: Idaho Power Company

08/04/2015 05:01 PM EDT 2-561Chapter 2 - Comment Documents Triennial Reviews [This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.]
7. The proposed revisions to the regulation governing state review and revision of water quality standards would require a state at its triennial review to evaluate whether its existing water quality criteria should be revised due to new or updated CWA section 304(a) recommendations to assure the protection of designated uses. This revision should not be limited to consideration of section 304(a) recommendations, but should also include other new or updated scientific evidence relative to the protection of the designated use. EPA's proposed revision should be amended to state: § 131.20 State review and revision of water quality standards. (a)State Review. The State shall from time to time, but at least once every 3 years, hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards; in particular, any water body segment with water quality standards that do not include the uses specified in section 101(a)(2) of the Act shall be re-examined every 3 years to determine if any new information has become available. If such new information indicates that the uses specified in section 101(a)(2) of the Act are attainable, the State shall revise its standards accordingly. Similarly, a State shall re-examine its water quality criteria to determine if any criteria [begin new text] continue to be scientifically defensible or [end new text] should be revised in light of any new or updated [begin new text] scientific evidence or [end new text] CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected. Procedures States establish for identifying and reviewing water bodies for review should be incorporated into their Continuing Planning Process. Thank you for the opportunity to comment. Please direct any questions or response to the undersigned.
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section G 

# Comment ID 0255-A2.001.006
Author Name: Quaempts Eric Organization: Confederated Tribes of the Umatilla Indian Reservation Triennial Reviews History and other evidence clearly indicate that States often fail to comply with Triennial Review requirements. EPA can and should do more to make sure that States review and update their water quality standards every three years. It should also ensure that affected Indian tribes are properly consulted and that the public can meaningfully participate in the process.

08/04/2015 05:01 PM EDT 2-562Chapter 2 - Comment Documents Triennial Reviews Response For response to this comment, see the following response essay(s): 6.g 6.g:Section I 

# Comment ID 0264-A2.001.023
Author Name: Chard-McClary Shellie Organization: Association of Clean Water Administrators Finally, both state and federal agencies face hurdles in getting through their administrative and legal processes, and delays by EPA in approving or disapproving water quality standard submissions adds to the hurdles states face in accomplishing timely and comprehensive review of their standards.
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section A 

# Comment ID 0268-A2.001.011
Author Name: Bell Nina Organization: Northwest Environmental Advocates EPA needs to decide – with regard to the new proposed language on criteria and the existing language on previously unattainable uses – what it will do if states ignore these provisions. To date it has simply approved state submissions that fail to meet statutory and/or regulatory requirements so long as what is submitted is acceptable (e.g., based on sound science). It has not had a plan, as far as we can see, on how to address states' omissions. What will it do now to ensure that states do not continue to ignore these provisions? We believe now is the time for EPA to make that commitment. For example, it could establish in rule that after three years states will be subject to federal promulgation. It could establish that submitted revisions to water quality standards will be rejected if they do not conform with statutory requirements. Presumably there are other options. Perhaps some have less direct impact on EPA's resources than others. But to continue the status quo where states, and EPA, routinely disregard clear Congressional direction is unacceptable. Merely clarifying the regulation will likely have as much impact as EPA's existing regulation on updating previously unattainable uses: no effect whatsoever.
Response

08/04/2015 05:01 PM EDT 2-563Chapter 2 - Comment Documents Triennial Reviews For response to this comment, see the following response essay(s): 6.g 6.g:Section D 

# Comment ID 0274-A2.001.007
Author Name: Yeaton Violet Organization: Region 10 Regional Tribal Operations Committee The Triennial Review process is often the only time for tribes to voice concerns about existing water quality standards, such as shortcomings with fish consumption rates, reviewed and considered by EPA. As such, the Tribal Caucus recommends that additional language be added to ensure that states specifically solicit and consider input from tribal governments on all of its water quality standards and that the comments and information received be forwarded to EPA. Moreover, language should be added to require consultation with affected tribes prior to any decision by EPA on the Triennial Review process.
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section I 

# Comment ID 0280-A2.001.019
Author Name: Aspatore Amanda Organization: National Mining Association However, EPA should also encourage states to review whether criteria are overly stringent and whether designated uses are no longer attainable.
Response For response to this comment, see the following response essay(s): 6.g 6.g:Section E


# 6.H - TRI - LEGAL

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# Comment ID 0272-A2.001.014
Author Name: Jennifer Chavez Janette Brimmer Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 D. EPA Has Authority To Compel States To Adopt § 304 Criteria Or An Equivalent Criteria By A Date Certain. A subset of the problems with Triennial Review is states' failure to adopt EPA-developed criteria in their Triennial Reviews. EPA has authority under the Clean Water Act to require states to adopt criteria, and we agree with EPA's proposal to make the obligation to do so clear in this rulemaking. See 78 Fed. Reg. at 54525. Under § 303, EPA has the independent authority to, at any time, determine that a state's water quality standards are not adequate to the purposes of the Clean Water Act. Also under §303, EPA has the authority and the obligation to review and approve or disapprove state standards that are new or revised. The combined effect is that EPA has the authority to dictate that state's adopt § 304 criteria or criteria that provide the equivalent level of protection of designated uses, whenever states are engaging in triennial review. (By allowing an equivalent, EPA allows states to retain some flexibility). This structure also allows a state to adopt the EPA-developed criteria to ensure minimum protections are met as timely as possible. A state may submit revisions later if it develops an equivalent protective criteria that it prefers. This same authority would allow EPA to require states to submit the entirety of the triennial review process to EPA for review including evidence and arguments submitted by the public that a state has chosen to reject or disregard, along with an explanation from the state as to why it did not adopt a change advocated by the public. It is plain that the Clean Water Act purposely places EPA in the role of watchdog over state water quality standards and under this role it is not just appropriate, but necessary, that EPA provide by rule that states adopt § 304 criteria or their equivalent and that EPA ensure that triennial reviews are meaningful and complete.
Response For response to this comment, see the following response essay(s): 6.h 6.a 6.g

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