CHAPTER 2 

Issue Category: Triennial Reviews

Pages 2-463 – 2-565 

Response to Public Comments

Water Quality Standards Regulatory Revisions

August 2015

40 CFR Part 131

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

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

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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 

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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. 

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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 reexamine 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 

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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 

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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 

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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) 

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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 

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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 

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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,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. 

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6.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 

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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 

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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. 

131.5 which 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 

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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 

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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 

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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 

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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 

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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 reexamine 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 

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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 

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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). 

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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.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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Chapter 2 - Comment Documents Triennial Reviews 

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 reexamine 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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Chapter 2 - Comment Documents Triennial Reviews 

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 2-499 
6.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. 

3.0 Requirements 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 

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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 

08/04/2015 05:01 PM EDT 2-502 
Chapter 2 - Comment Documents Triennial Reviews 

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 reexamination. 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 

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Chapter 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 

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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 

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to conditions in the more water-rich regions. Watersheds in the West are typified by hot, highly mineralized waters with 

poor 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 

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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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Chapter 2 - Comment Documents Triennial Reviews 

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) 

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According to EPA's "tri-fold" summary, the proposed revision to this regulation is intended to clarify that states "shall reexamine 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 

08/04/2015 05:01 PM EDT 2-511 
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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 

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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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131.20 is 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. 

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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 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." 78 Federal Register 54,525. We strongly support this amendment and the 

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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 and 

undertake 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. 

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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 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 

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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 

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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 

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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 

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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 criteria 

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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 and 

undertake 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 necessarily 

follows 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 2-526 
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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 

08/04/2015 05:01 PM EDT 

4.c 

2-527 
Chapter 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 

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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 

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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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Chapter 2 - Comment Documents Triennial Reviews 

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? 

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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 

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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Chapter 2 - Comment Documents Triennial Reviews 

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 

08/04/2015 05:01 PM EDT 2-533 
Chapter 2 - Comment Documents Triennial Reviews 

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 

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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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Chapter 2 - Comment Documents Triennial Reviews 

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 

08/04/2015 05:01 PM EDT 2-538 
6.c 

Chapter 2 - Comment Documents Triennial Reviews 

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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Chapter 2 - Comment Documents Triennial Reviews 

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. 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. 

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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.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 

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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 2-543 
Chapter 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 

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Chapter 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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2.c 

Chapter 2 - Comment Documents Triennial Reviews 

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 

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Chapter 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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Chapter 2 - Comment Documents Triennial Reviews 

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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Chapter 2 - Comment Documents Triennial Reviews 

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. 

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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? 

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4.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 2-551 
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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.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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Chapter 2 - Comment Documents Triennial Reviews 

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 

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Chapter 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 to 

provide 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): 

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Chapter 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 

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Chapter 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 

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Chapter 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 light 

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 

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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 

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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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Chapter 2 - Comment Documents Triennial Reviews 

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 

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Chapter 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. 

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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 

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Chapter 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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Chapter 2 - Comment Documents Triennial Reviews 

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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