CHAPTER 3 

Issue Category: Compliance Schedule 

Authorizing Provisions

Pages 3-409 – 3-427

Response to Public Comments

Water Quality Standard Regulatory Revisions

August, 2015

40 CFR Part 131

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

This document is part of a larger document.
Chapter 3 – Response Essays 9.a – CSAP – Gen Supp 

Essay 9.a – Compliance Schedule Authorizing Provisions: 

General Support

A. General Support

The U.S. Environmental Protection Agency (EPA) appreciates commenters’ support of the proposed 

provision at section 131.15 regarding compliance schedule authorizing provisions (CSAPs) as appropriate 

and consistent with existing law. EPA appreciates commenters’ support of the proposed provision as 

helping to ensure that permittees’ compliance schedules (CS) are legally binding and allowable under 

the Act.

EPA appreciates commenters’ support that section 131.15 should conform to the precedent established 

in the Star-Kist decision, and that as such, the proposed provision reflects existing and long-standing EPA 

interpretation and policy since In the Matter of Star- Kist Caribe, Inc. [1990 WL 324290 (EPA), 1990 EPA 

App. LEXIS 45, 3 EAD 172 (April 16, 1990)]. 

B. Specific Scenarios in States and Authorized Tribes

Commenters from several states and authorized tribes noted that they already have adopted CSAPs. 

Where EPA has already approved such provisions under 303(c) as water quality standards (WQS), there 

is no need for states or authorized tribes to make additional changes to their WQS. In promulgating this 

final rule, EPA has not evaluated specific state/authorized tribal regulations for consistency with it. It is 

beyond the scope of this rulemaking for EPA at this time to conduct such a state- or authorized tribespecific evaluation, and for that reason EPA will not express agreement or disagreement here with the 

specific situations that commenters have identified. EPA recommends that states and authorized tribes 

evaluate their WQSs for consistency with the final regulation at section 131.15 and further recommends 

that States and authorized tribes work with their EPA Regional offices, which are available to assist with 

any questions.

C. Level of Effort for States and Authorized Tribes

Some commenters stated the view that the proposed section 131.15 would likely increase the level of 

effort required by a state’s environment department, because it would require that the state’s WQS 

include an authorizing provision in its WQS. EPA points out that today’s provision at section 131.15 does 

not reflect a change in EPA interpretation or policy, so there should be no increased level of effort with 

respect state or authorized tribal CSAPs. Additionally, neither the proposed rule nor today’s final rule 

require that the CSAPs be housed in a state’s or authorized tribe’s WQS themselves. As discussed in the 

preamble to the final rule, as long as a state or authorized tribe has a legally binding provision

authorizing the use of CS, it is possible for EPA to take action on it under 303c as a WQS no matter 

where it is housed in regulation. Finally, the commenters stated that the proposed provision at section

131.15 would add complexity to the process for securing variances. The commenters did not provide an 

explanation for how section 131.15 would complicate the process of securing WQS variances and so EPA 

is not able to respond directly to this comment. However, EPA notes that states and authorized tribes 

have flexibility in how they adopt their CSAP to facilitate the use of CS when implementing variances. 

Some states and authorized tribes have established pollutant and water body specific CSAPs, while 

others have adopted more generally applicable provisions. To the extent that states and authorized 

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tribes wish to minimize the regulatory burden of adopting a provision to authorize CS at the time they 

adopt a WQS variance, states and authorized tribes may wish to evaluate what type of CSAP best suits 

their needs and could be adopted in advance of the WQS variance. See response essay to 8.e. for 

additional information on the relationship between permit CS and WQS variances.

D. Requirements for Individual National Pollutant Discharge Elimination 

System Permit Compliance Schedules

EPA appreciates commenters’ support of EPA’s clarification that while the authorizing provisions are 

considered WQS, individual CS issued pursuant to those provisions are not WQS. EPA deleted specific 

text on this point because it appeared to add to the confusion of whether section 131.15 pertained to

individual CS rather than their authorizing provisions. While the final regulatory text does not include 

this clarification, the preamble specifically notes that individual CS are not WQS subject to EPA approval. 

In addition, EPA’s new provision at section 131.15 does not change any of the permit CS requirements of 

section 122.47. 

Some commenters supported section 131.15 because in their view, it would not set a maximum 

duration for CS in National Pollutant Discharge Elimination System (NPDES) permits. EPA agrees with the 

factual statement that section 131.15 does not set a maximum duration for CS in NPDES permits. Some 

commenters also said that CS should not exceed 5 years (reflecting the duration of an NPDES permit 

authorization). EPA points out that, while section 131.15 does not set any specific limits on the length of 

a permit CS, section 131.15 does not allow CS of excessive length either. Per the NPDES regulations at 

Title 40 of the Code of Federal Regulations (CFR) section 122.47, CS must be designed to achieve 

compliance “as soon as possible,” which is situation-specific. In some permits, a 5- year CS may be 

appropriate, while in others, the appropriate schedule might be shorter or longer (see 

http://water.epa.gov/lawsregs/guidance/wetlands/upload/signed-hanlon-memo.pdf for additional 

discussion on the expectations for permit CS, even when a CS extends beyond the expiration date of the 

NPDES permit). 

Some commenters stated that CS are essential when a “new” or revised water quality-based effluent 

limit (WQBEL) is included in an NPDES permit. They said that this could occur when a state has revised 

its WQS rules to adjust a numeric criterion, has added a criterion for a new constituent to its rules, or 

when a completed and approved total maximum daily load (TMDL) results in more stringent WQBELs for 

one or more effluent constituents. The final regulation at section 131.15 does not speak to the specific 

circumstances under which individual permit CS may be granted. EPA refers any entity seeking to 

include a permit CS for WQBELs in an NPDES permit to the NPDES regulations at 40 CFR 122.47 and 

relevant EPA guidance. 

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Essay 9.b – Compliance Schedule Authorizing Provisions: 

General Opposition

A. General Support

The U.S. Environmental Protection Agency (EPA) appreciates comments supporting the proposed

addition of the provision at section 131.15.

EPA appreciates comments supporting EPA’s mention of the regulatory authority of states and authorized 

tribes to include compliance schedules (CS) in discharge permits and EPA’s support for using CS. EPA 

agrees with comments stating that CS are important tools for achieving the goals of the Clean Water Act 

(CWA) as they allow dischargers a reasonable period of time to come into compliance with permit limits 

based on applicable water quality standards (WQS), particularly where states/authorized tribes need time 

to implement new or more stringent water quality-based effluent limits (WQBELs) in National Pollutant 

Discharge Elimination System (NPDES) permit requirements. EPA also agrees with comments that pointed 

to CWA 301(b)(1)(C) (“schedule of compliance, established pursuant to State law or regulations”) to 

explain that CS are an appropriate mechanism for meeting WQS. EPA agrees that a schedule of compliance 

can provide a mechanism for achieving WQBELs, and ultimately, WQS. EPA’s final rule does not alter the 

flexibility that states and authorized tribes have to use permit CS, as appropriate.

EPA acknowledges receipt of comments appreciative of EPA's clarification that CS can extend beyond a 

particular permit term, because the commenters view this as both necessary and welcome.

EPA appreciates comments supporting the proposed clarification regarding compliance schedule

authorizing provisions (CSAPs) for WQBELs designed to be consistent with the decision in In the Matter 

of Star-Kist Caribe, Inc.

EPA appreciates commenters’ support for the language within section 131.15 that states “[i]ndividual 

compliance schedules issued pursuant to such authorizing provisions are not themselves water quality 

standards” and therefore not subject to review under 303(c). While EPA did not finalize this language in 

regulation, this is still EPA’s policy position and EPA has made this clear in the preamble to the final rule. 

EPA recognizes a statement in comments that the Star-Kist opinion contains a useful discussion of the 

right of states to develop and interpret their own WQS and appreciates the commenter’s agreement 

with the holding that EPA may not unilaterally amend State WQS by granting permit CS that were not 

authorized by the State.

EPA received one supportive comment stating that “...it agrees with EPA that schedules of compliance 

are, and have always been appropriate for compliance with WQBELs where they are allowed under state 

statutes or regulations, either for water quality standards or NPDES permitting.” While EPA appreciates 

the comment, EPA would like to be clear that CS are a mechanism to provide time to meet WQBELs in an 

NPDES permit and not time to meet the WQS themselves. Based on the definition of CWA 502(17), CS

are an enforceable sequence of actions leading to compliance with an effluent limitation. Thus, CS are 

not appropriate where there is uncertainty as to whether the WQS will be met or not. Rather, the 

appropriate tool in that instance could be a WQS variance. EPA’s preamble to the final rule discusses the 

appropriate uses of both tools in more detail.

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B. General Opposition

EPA disagrees with commenters’ requests to eliminate 131.15 from the final rule. The new provision is 

important because it expressly incorporates into EPA’s regulations long-standing EPA interpretation and 

policy and creates a regulatory mechanism to ensure that any permit with a CS to meet a WQBEL derives 

from and complies with the applicable state or authorized tribal WQS, consistent with CWA section 

301(b)(1)(C) and Title 40 of the Code of Federal Regulations (CFR) section 122.44(d)(1)(vii)(A). Without 

an authorizing provision approved by EPA pursuant to CWA section 303(c), any permit with a CS to meet 

its WQBEL could be vulnerable to challenge that it was inconsistent with CWA section 303(b)(1)(C) and 

40 CFR 122.44(d)(1)(vii)(A). See additional discussion in following sections for EPA’s response to the 

specific reasons commenters cited when recommending that EPA eliminate section 131.15.

C. Comments That Compliance Schedules Are Not Water Quality Standards

EPA agrees with comments stating that it is inappropriate to characterize a CS itself as a “water quality 

standard” and that it is important that CS retain their nature as permitting tools. EPA also agrees that it 

is not necessary for states or authorized tribes to include in their WQS specific requirements for the 

design and issuance of CS, that CS themselves are not included in the definition of a WQS at 40 CFR 

131.3(i), and that CS themselves are state/authorized tribal decisions made within the context of the 

NPDES permitting process. EPA also acknowledges that CWA section 303(e)(3)(A) refers to “effluent 

limitations and schedules of compliance” as elements of state continuing planning processes (CPP) and 

that CWA section 303(e)(3)(F), another CPP provision, refers to “adequate implementation, including 

schedules of compliance, for revised or new water quality standards.” 

However, EPA disagrees with comments saying the proposal would “make compliance schedules a 

WQS,” would cause confusion, and is inconsistent with the Act. The proposed rule and the final rule 

make explicit that EPA’s new regulation is only characterizing CSAPs for WQBELs as elements of a state’s

or authorized tribe’s WQS and is clear that permit CS themselves are not WQS. 

While CS themselves are permitting mechanisms and not WQS, NPDES permits are inextricably linked to 

WQS because WQBELs in such permits must derive from and comply with the applicable WQS consistent 

with CWA section 301(b)(1)(C) and 40 CFR 122.44(d)(1)(vii)(A). For a permit to lawfully include a CS

delaying the date of compliance for one or more of its WQBELs, therefore, there must be an applicable 

state or authorized tribal WQS authorizing the use of such a CS. Any such CSAPs are themselves WQS 

because they operate to authorize a delay in the otherwise applicable obligation that an NPDES permit 

holder meet its WQS-based WQBEL on the date of permit issuance. As such a CSAP has the potential to 

alter and extend the implementation timeframe for that WQS in the NPDES permitting context. As a 

WQS, such an authorizing provision must be approved by EPA pursuant to CWA section 303(c). EPA 

recognizes that its definition of a WQS at 40 CFR 131.3(i) does not expressly include CSAPs for WQBELs. 

However, the definition is not intended to be exhaustive and the failure to list CSAPs is not dispositive of 

the issue. For example, the definition also does not include antidegradation policies, another aspect of a 

state or authorized tribe’s WQS. EPA provides guidance in the form of a frequently asked questions 

(FAQ) to explain what EPA considers to be new or revised WQS subject to EPA approval, consistent with 

this definition. This FAQ can be found at 

http://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm. EPA also explains in the preamble 

to the proposed and final rule why a CSAP for a WQBEL is a new or revised WQS.

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EPA agrees that provisions adopted by states or authorized tribes dealing with the specifics of permit CS

based on the NPDES regulation at 122.47 are generally not WQS in and of themselves. EPA disagrees 

with comments that said the proposed regulation was an attempt to control states’ authority and 

discretion to implement their WQS as part of a greater initiative to broaden EPA’s control of states’ 

decision-making. These commenters misinterpreted EPA’s proposal as requiring either that CS

themselves must be adopted as WQS, or that all of a state’s CS-related regulations (e.g., their state or 

authorized tribal analogs to section 122.47) must be approved by EPA as WQS. As discussed earlier, this 

was not EPA’s intent, nor is it what EPA has finalized. EPA intends to act on and approve as a WQS only

the state or authorized tribal provision authorizing schedules of compliance for WQBELs, not the

permitting-type regulations describing how the CS itself must be written or implemented. The final rule 

strikes an appropriate balance between relatively minimal and unobtrusive EPA involvement in 

approving as WQS state and authorized tribal CSAPs for WQBELs, while leaving broad discretion to 

states/authorized tribes regarding where the authorizing provision is housed in state/authorized tribal 

regulations and the nature of the permit-specific details of CS themselves. In other words, not only do 

states and authorized tribes continue to have the flexibility and discretion to house their CSAPs for 

WQBELs in their WQS or in any other implementing regulations, but if the authorizing provision is 

housed in the state or authorized tribes’ general CS regulations, EPA would only approve the explicit 

authorizing provision as a WQS and not the remaining CS regulatory provisions. Thus, 40 CFR 131.15

provides EPA no CWA 303(c) authority over the state or authorized tribe’s design or use of CS

themselves beyond its approval, as a WQS, of the state or authorized tribe’s regulatory provision 

authorizing their use for WQBELs in NPDES permits. The fact that EPA’s rule only applies to state or

authorized tribal provisions authorizing use of CS for WQBELs in NPDES permits does not mean that all 

other types of CS are prohibited. This rule is limited to provisions authorizing use of CS for WQBELs in 

NPDES permits because it is only those CS that must be issued consistent with the statutory 

requirements of CWA section 301(b)(1)(C) – including the July 1, 1977 deadline - and 40 CFR

122.44(d)(1)(vii)(A).

D. Comment That EPA Should Edit Text for Clarity That Compliance Schedules 

Are Not Water Quality Standards

Comments suggested a specific edit to the proposed text at 131.15 to clarify that while the states’ and

authorized tribes’ WQS may authorize use of CS, individual CS are not required to be adopted as WQS. 

EPA agrees that some clarity was needed in the rule and so it revised the final rule to consistently use 

the phrase “authorize the use of compliance schedules for WQBELs” and made it clear that “Such 

authorizing provision” was a WQS subject to EPA review and approval. EPA was concerned that the 

proposed language could have been read to include, as subject to EPA approval, the schedules of 

compliance themselves or any other provision in a state or authorized tribe’s regulations relating to CS. 

It is EPA’s view that this particular edit provides sufficient clarification in response to the comment even 

though the final rule text is not identical to that suggested by the commenter.

E. Comments That Section 131.15 Is Not Needed

EPA disagrees with commenters who suggest that section 131.15 is not needed and that there is no 

need to require states to authorize the use of CS for WQBELs as part of their WQS because (1) these

authorizing provisions are approved as part of a state's or authorized tribes’ authorized NPDES program

and (2) EPA has the authority to review and, where appropriate, comment on or object to NPDES 

permits containing CS. 

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In regards to the first rationale, commenters cited the regulation at 40 CFR 122.47 which addresses CS

as elements of the NPDES program, including when they are appropriate to include in permits and what 

elements they must include. Commenters cited the regulation at 40 CFR Part 123 which discusses the 

requirements that a State must meet in order to be authorized by EPA to issue NPDES permits. One of 

these requirements, as set forth in section 123.25 (a)(18), is that the State must have the legal authority 

to establish schedules of compliance. Commenters concluded that therefore all States that have been

authorized to administer have already been determined to have the authority to establish schedules of 

compliance, and no further regulation is necessary. One commenter provided an example of a state that 

incorporated EPA’s regulations at 40 CFR Part 122.47 to justify their point that CS are authorized by 

existing state NPDES program regulations.

Several commenters stated the opinion that EPA should not require duplicative review of CS policies 

under 303(c) of the Act, if they are already reviewed under section 402 of the Act. Specifically, 

commenters stated that no purpose is served by subjecting the state provisions to a second EPA review 

under 303(c), and that EPA has not articulated any basis for potentially subjecting the state's CS policy to 

an additional review under a different section of the CWA. 

As explained in the preamble to the proposed and final rule, EPA approval as a WQS of the state’s or 

authorized tribe’s permit CSAP for WQBELs ensures that any NPDES permit, whose WQBEL has a delayed 

effective date due to a CS, derives from and complies with applicable WQS as required by CWA section

301(b)(1)(C) and 40 CFR 122.44(d)(1)(vii)(A). Because the state’s or authorized tribe’s approved WQS 

would then authorize extended compliance, any delay in compliance with a WQBEL pursuant to an 

appropriately issued permit CS is consistent with the statutory implementation timetable in CWA 

section 301(b)(1)(C). If a state or authorized tribe decides to authorize permit flexibility using CS for 

WQBELs in NPDES permits without an authorizing provision approved under CWA section 303(c) as a 

WQS (i.e. relying solely on their delegated NPDES program), the permits could be subject to legal 

challenge. While EPA has not, before this final rule, explicitly established a regulatory provision 

addressing CWA section 303(c) approval of a CSAP, this has been EPA’s longstanding position since the 

Star-Kist decision, and section 122.44(d)(1)(vii) has always required that permit limits derive from and 

comply with the applicable WQS. Many States have avoided legal vulnerability by obtaining EPA 

approval under CWA section 303(c) of their CSAPs. 

EPA recognizes that some states currently issue permit CS based on the authority contained in their 

NPDES program regulations. And it is not surprising that a condition of NPDES program approval is that, 

per section 123.25 (a)(18), the State must have its own state legal authority to establish schedules of 

compliance. However, every CS for WQBELs in an NPDES permit that is issued in a state or authorized 

tribe without an applicable authorizing provision that been approved by EPA as a WQS under 303(c) is 

potentially vulnerable to challenge on the theory that, because the delay in WQBEL implementation 

afforded by the CS does not derive from and comply with the state or authorized tribe’s CWA-applicable 

WQS, it is not consistent with CWA section 301(b)(1)(C) and section 122.44(d)(1)(vii)(A). Today’s rule 

provides a mechanism for states and authorized tribes to protect themselves against such vulnerability 

by ensuring that any delay of compliance with WQBELs allowed pursuant to NPDES permit CS is 

consistent with their own WQS and thus consistent with CWA section 301(b)(1)(C) and section

122.44(d)(1)(vii)(A).

It is important to note that, if states and authorized tribes have adopted CSAPs for WQBELs as part of 

their NPDES regulations, there is no need for a state or authorized tribe to readopt the provision as a 

new or revised WQS. Rather, the state or authorized tribe may submit the legally binding provision to 

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EPA with a certification from its Attorney General or appropriate tribal legal authority that such 

provision was adopted pursuant to state or tribal law. EPA will then act on it pursuant to CWA section 

303(c).

EPA also disagrees with comments that said additional approval under CWA section 303(c) is not 

necessary because permit CS are already subject to EPA approval as part of the NPDES permit program. 

Permit CS are issued by authorized states and authorized tribes for WQBELs in NPDES permits, generally 

without EPA prior approval. EPA does have oversight authority over authorized state and tribal NPDES 

permit programs; thus, EPA has the authority to object to a permit (including any permit CS) issued by a 

state or tribal permitting authority if the permit does not derive from and comply with the applicable 

WQS or otherwise does not meet federal requirements. EPA does not have the obligation to review and 

approve or disapprove each NPDES permit as it does for WQS. Permit CS themselves are not subject to 

EPA approval as a WQS under 303(c), and EPA’s discretion to not object to a permit is not equivalent to 

EPA “approval” of a permit or CS under any CWA authority. It is advantageous for the state and 

authorized tribe to eliminate any potential legal vulnerability to CS for WQBELs in their NPDES permits 

by seeking EPA approval of their authorizing provisions and not risk the wasted resources and time that 

a legal challenge to the permit would incur.

EPA acknowledges comments stating that adding a new federal regulation will not enhance clarity or 

consistency in discharge permits nor promote more efficient or rapid compliance. The final rule at 

section 131.15 is not intended to address general issues of clarity, consistency, or compliance in 

connection with NPDES discharge permits. Those matters are regulated by 40 CFR Part 122. The final 

rule at section 131.15 only provides a mechanism for states and authorized tribes to use to help ensure 

that their permit CS for WQBELs derive from and comply with the applicable WQS consistent with CWA 

section 301(b)(1)(C) and section 122.44(d)(1)(vii)(A).

F. Comments That the Requirements of Section 131.15 Should Be Placed in the 

Federal Permitting Regulations

EPA disagrees with comments suggesting that EPA’s proposed provision at section 131.15 would be 

more appropriately placed in the NPDES permitting regulations than the WQS regulations. Section 

131.15 specifically addresses EPA’s authority to review CSAPs as an aspect of a state or authorized 

tribe’s WQS, which authority is more logically located in 40 CFR part 131, and not part 122, which 

contains requirements related to the contents of permits themselves, including the specific details of 

individual CS. 

G. Comments That Compliance Schedules and Compliance Schedule

Authorizing Provisions Are Part of the Continuing Planning Process, Not 

Water Quality Standards

Some comments stated that CS and compliance schedule policies are not WQS, they are implementation 

procedures and permitting tools that are left to the discretion of the States and that EPA’s requirement 

diverges from the CWA and its implementing regulations. (Title 33 of the United States Code (U.S.C.) 

Section 1362(11) and (17); 33 U.S.C. 1313(e)(3)(A)) The comments stated that neither CS nor CSAPs are 

subject to the discretionary approval of U.S. EPA, and EPA should not have any disapproval powers as 

along as a CS meets the definition in CWA section 501(17). In response, EPA notes that it explicitly 

explained in the preamble to the proposal, and in the preamble to the final rule, that individual CS in 

permits are not WQS. The final rule only addresses state and authorized tribal CSAPs as WQS. These 

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CSAPs (or “policies” as the commenter referred to) are indeed WQS. As previously noted, 40 CFR part 

131.15 only pertains to authorizing the use of CS for WQBELs in NPDES permits, and leaves decisions 

about the specific nature of individual CS themselves to states and authorized tribes under the authority 

of the NPDES permitting regulations at 40 CFR part 122.

Commenters specifically cited section 303(e)(3)(A) of the CWA, which mentions that “effluent 

limitations and schedules of compliance” are elements of a State's CPP, and pointed out that nothing in

section 303 of the CWA that discuss WQS references CS. Elsewhere in this response and in the rule’s 

preambles, EPA explains the legal rationale for approving CSAPs as WQS under CWA 303(c). It is not 

dispositive that section 303(c) does not expressly say that CSAPs are WQS. Section 303(c) does not 

specifically mention “antidegradation policies” either. Just because section 303(e)(3)(A) and (F) specify 

that CS themselves be included, as appropriate, in a state or authorized tribe’s CPP, that does not mean 

that state or authorized tribal CSAPs are not also reasonably understood to be part of a state or 

authorized tribe’s WQS subject to approval pursuant to CWA section 303(c). The two ideas are not 

mutually exclusive and can co-exist harmoniously. Indeed, if a state has included a provision authorizing 

the use of CS in its CPP, there is no reason for the state to readopt the provision or amend its regulations 

to place it elsewhere. Rather, the state may submit the provision to EPA along with an attorney general 

certification that it was adopted pursuant to state law. EPA will then act on the provision under CWA 

303(c).

H. Comments That EPA Has Misinterpreted the Star-Kist Decision regarding 

Provisions Authorizing the Use of Compliance Schedules

EPA disagrees with comments that said EPA has misinterpreted the Stark-Kist decision when establishing 

its proposed rule language. Specifically, comments cited the Star-Kist decision’s statement that “EPA 

does not have the authority to establish schedules of compliance in NPDES permits that will postpone 

compliance with state water quality standards beyond the July 1, 1977 statutory deadline, unless the 

schedule is added pursuant to authorization contained in the state water quality standards or the State's 

regulations implementing the standards.” Comments stated that therefore the actual holding of the 

Stark-Kist decision is not that states lack the authority to adopt implementing regulations that allow the 

use of schedules of compliance in NPDES permits to achieve compliance with pre-1977 standards, but 

that EPA lacks such authority when the state regulations fail to provide for it.

While the Star-Kist decision is indeed focused on a situation where EPA was the permitting authority 

that included a CS where the state had not authorized the use of one, the decision clearly explains why 

an authorizing provision is needed and the explanation holds regardless of whether the permitting 

authority is EPA, the State or the Tribe. In his 1990 Star-Kist Order on Petition for Reconsideration, the 

Administrator noted that “By allowing the discharger to phase in compliance over time, the interim 

limitations implicitly sanction pollutant discharges that violate applicable water quality standards.” The 

Administrator went on to say that “In my opinion, the only instance in which the permit may lawfully 

authorize a Permittee to delay compliance after July 1, 1977, pursuant to a schedule of compliance, is 

when the water quality standard itself (or the state’s implementing regulation) can be fairly construed 

as authorizing a schedule of compliance. The Agency’s powers in this respect, as discussed below, are no 

greater than the States’.” (See pages 4-5 of the decision). This principal rationale remains intact 

regardless of the permitting authority. 

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Some commenters suggested that EPA has failed to properly apply the holding of the Star-Kist decision 

and 301(b)(1)(C) and that the State does not have to put its CS provisions into the WQS itself but rather 

just needs a clear indication that the State is authorizing use of CS. EPA agrees that a state or authorized 

tribe does not need to house its provision to authorize the use of CS in its WQS or WQS regulations. 

However, the Court’s decision in the U.S. Court of Appeals for the Eleventh Circuit’s 2004 decision, 

Florida Public interest Research Group Citizen Lobby, Inc., et al. v EPA, 386 F.3d 1070 (11th Cir. 2004)

established that EPA has a mandatory duty to approve or disapprove new or revised WQS even if the 

state did not submit such new or revised WQS to EPA for review. Thus EPA’s position is that its authority 

and duty to evaluate whether a provision is a new or revised WQS is not dependent upon whether the 

provision was submitted to EPA for review and whether or not they are physically located in the state’s 

WQS regulations.

I. Comments That EPA’s Interpretation of Star-Kist Inappropriately Limits 

Compliance Schedules to Water Quality Standards Adopted after July 1, 1977

EPA received many comments regarding its interpretation of CWA 301(b)(1)(C), as articulated in In the 

Matter of Star-Kist Caribe, Inc., that after July 1, 1977, permits must require immediate compliance with 

(i.e., may not contain CS for) effluent limitations based on WQS adopted before July 1, 1977. While 

EPA’s preamble to the proposed rule reiterated the Agency’s longstanding position in this regard, 

neither EPA’s proposed Water Quality Standards Regulatory Clarifications Rule nor EPA’s final rule 

establish any regulatory requirements addressing this issue or change any requirements for CS

themselves established in section 122.47. In addition, EPA’s preamble to the proposed rule is not the 

first place EPA has articulated such a position since the Star-Kist Caribe decision. For example, EPA 

articulated this position in a memo from Jim Hanlon, Director of the Office of Wastewater Management, 

to Alexis Strauss, the EPA Region 9 Water Division Director, about CS for WQBELs in 2007. This memo 

can be found at http://water.epa.gov/lawsregs/guidance/wetlands/upload/signed-hanlon-memo.pdf. 

Therefore, these comments about EPA’s historical position regarding the availability of CS for WQBELs 

based on pre-July 1977 WQS are outside the scope of this rulemaking, which was limited solely to 

establishing a regulatory provision addressing EPA approval of state or authorized tribal compliance 

schedule authorizing provisions. Accordingly, EPA is not responding to the specific comments provided 

on this specific issue.

J. Comment That the Phrase “Consistent with State Law” Is Unnecessary

Some comments said that the phrase “consistent with state law” in the proposed section 131.15 was 

unnecessary, because a state only acts as authorized by state law. If CS are not consistent with state law, 

they can be challenged in state court, and thus it is not necessary for EPA to specify in Federal 

regulations that such schedules must be consistent with state law. EPA agrees that this phrase is 

unnecessary, and the final rule does not include it.

EPA also agrees with comments that “If a state agency has issued a compliance schedule in violation of 

state law, that is a matter to be dealt with in state courts under state law.” As discussed in other 

sections of this response, 40 CFR Part 131.15 does not alter this paradigm but rather ensures that the 

applicable WQS allow a CS so as to minimize legal vulnerability.

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K. Comments regarding the Specific State Situations

EPA acknowledges receipt of comments expressing the view that a specific state or authorized tribe’s 

regulations are consistent with EPA’s proposed rule at section 131.15. Other comments stated that it 

was unclear what affect this rule would have on an existing, previously-approved state program. EPA has 

not evaluated specific state provisions for consistency with the final rule, and will not express 

agreement or disagreement here with the specific situations that commenters point out. EPA 

recommends states and authorized tribes evaluate their program and state provisions for consistency 

with the final regulation at section 131.15. States and authorized tribes should work with their EPA 

Regional offices, which are available to assist states and authorized tribes with any questions about the 

final requirements.

L. Comment regarding References to Clean Water Act and National Pollutant 

Discharge Elimination System Regulation

Some comments requested that the rule be consistent with and specifically reference the following: 

requirements for permit CS in CWA sections 502(17) and 301(b), as well as 40 CFR 122.2, 122.44, 122.47.

EPA’s final rule provides the appropriate references, as necessary, to convey the requirement as it 

intends. While the regulatory provision at section 131.15 does not specifically cite to the regulations at 

40 CFR part 122, it does not eliminate the need for any permits and CS to meet the relevant permitting 

requirements. EPA’s preamble also references the proper permitting regulations.

M. Comment That Compliance Schedule Authorizing Provisions Could Limit 

Flexibility in Permits

Some comments stated the concern that EPA regional offices could interpret the proposed provision at 

section 131.15 to mean that authorizing provisions must include not only a statement of authority but 

also the provisions that are included in the specific permit CS (e.g., time period, specific interim 

deadlines, etc.). The commenters were concerned that such requirements would severely limit a State's 

ability to structure a permit that is appropriate for the specific condition as they relate to that individual 

permit. While EPA disagrees that EPA’s regulation could be interpreted in this way, EPA has made sure 

that the final rule language and preamble clearly articulate the intent of the regulation. The final rule at 

section 131.15 does not address the specifics of the CS themselves, and the preamble is clear that this

rule does not “change any permit compliance schedule requirements at § 122.47” (See section N of this 

response essay for information regarding what detail is or is not expected in a provision authorizing CS

for which EPA would take action under CWA section 303(c).) EPA is confident that the information in the 

final rule, final preamble, and these responses to comments are clear regarding the intent of this 

regulation and will ensure that this provision is discussed in any subsequent national guidance so as to 

be interpreted consistently across all EPA Regional Offices and Headquarters. 

N. Comment regarding Detail Required in Compliance Schedule Authorizing 

Provisions 

Comments stated that based on Star-Kist, States need only indicate or mention that they intend to 

authorize the use of CS in their respective WQS or implementing regulations. Details such as “time limits 

or any other restrictions on compliance schedules” was not addressed by Star-Kist and thus “EPA has no 

authority to require that a State’s detailed CS provisions be submitted to the Agency for its approval.”

EPA agrees that, as a general matter, state or authorized tribal regulations functioning as the analogues 

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to 122.47 need not be submitted to EPA for approval as WQS. Such details about specific CS are not 

subject to EPA approval. As discussed earlier, section 131.15 does not assert or create EPA authority 

under CWA section 303(c) over CS themselves or state and authorized tribal regulatory provisions 

regarding CS that go beyond authorizing their use.

O. Comment That Compliance Schedules Are Not Just for Water Quality-Based 

Effluent Limits in National Pollutant Discharge Elimination System Permits

Some comments stated that the proposed rule created further confusion by asserting that CS may only 

be authorized for WQBELs, and said that this assertion is not supported by the text of the Act. The 

commenters misunderstand the purpose of the new rule. Neither the proposed nor final rule limit the 

use of CS to NPDES permits or limit the use of those CS to WQBELs. The rule is only intended to provide 

a mechanism for EPA approval pursuant to CWA section 303(c) of state or authorized tribal provisions 

authorizing the use of CS for WQBELs so that such CS are consistent with and derive from and comply 

with CWA section 301(b)(1)(C) and 40 CFR 122.44(d)(1)(vii)(A). An authorizing provision is not necessary 

for CS addressing non-WQBEL NPDES permit limits or conditions. Response essay 9.c addresses related 

comments.

P. Comment That Compliance Schedules Need More Limitations

EPA received comments on how it should add restrictions to the use of CS in NPDES permits. Generally 

comments expressed concern that, without provisions limiting the availability of CS, the proposed 

language may allow states and dischargers to avoid or indefinitely delay compliance with WQS. 

Commenters expressed concern about allowing states to grant long delays in meeting WQBELs without 

direct EPA supervision, since EPA approval is not required for each CS issued by a state or authorized 

tribe (in contrast to variances, site specific criteria, and changes to designated uses, which must all be 

approved by EPA as WQS). Some comments also expressed concern that allowing a CS on top of already 

backlogged permits could extend the permit’s compliance date. In terms of specific restrictions, some 

commenters said that CS should be expressly prohibited for new and increased discharges of pollutants. 

Some urged EPA to limit the length of CS to no longer than one NPDES permit term (5 years) or even 

shorter (3 years). Some urged EPA to incorporate provisions which limit the availability of CS to 

situations where the permittee has a legitimate need for more time to comply with new, more stringent 

WQBELs, where compliance is required “as soon as possible,” and where specific actions are required 

within the schedule to come into compliance.

EPA is not responding to these suggestions for rulemaking addressing permit CS themselves because

these comments are beyond the scope of this rulemaking which is focused solely on adding a provision 

addressing EPA approval of state and authorized tribal provisions authorizing use of schedules of 

compliance for WQBELs in NPDES permits. EPA did not propose or solicit comment on other issues 

relating to the issuance and implementation of CS or potential revisions to the NPDES regulatory 

provisions that govern permit CS themselves, namely the regulations at 40 CFR 122.2 and 122.47. As 

clearly stated in the final rule, section 131.15 does not change those longstanding regulatory 

requirements.

Some comments said that Star-Kist may allow for issuance of CS in instances that are not permitted 

under the CWA. The commenters did not provide evidence for this assertion so EPA is unable to provide 

a response. 

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Q. Compliance Schedules Are Not Allowed Anymore

Some commenters provided a variety of reasons for its position that CS for WQBELs in NPDES permits 

should no longer be allowed. EPA is not responding to comments requesting EPA to prohibit permit CS

altogether because they are beyond the scope of this rulemaking which is focused solely on the need for 

states and authorized tribes to obtain EPA approval pursuant to CWA 303(c) for their provisions 

authorizing schedules of compliance for WQBELs in NPDES permits as allowed by the current regulations 

at 40 CFR 122.47. EPA did not propose or solicit comment on the NPDES regulatory provisions that apply 

to permit CS themselves. Any blanket prohibitions to use of CS altogether would require revisions to the 

NPDES regulations at 40 CFR part 122, and EPA did not propose or solicit comment on revising those

regulatory provisions.

EPA refers the commenter to the Administrator’s 1990 Order on Petition for Reconsideration in Star-Kist

for further discussion of EPA’s position on the availability of CS. 

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Chapter 3 – Response Essays 9.c – CSAP – Specific Comments 

Essay 9.c – Compliance Schedule Authorizing Provisions: 

Specific Comments

A. Comments on How Detailed Compliance Schedule Authorizing Provisions 

Must Be

The U.S. Environmental Protection Agency (EPA) agrees with the comment that the following sentence

from the proposal could be construed to require that, as part of a state or tribe’s approved water quality 

standards (WQS), the compliance schedule authorizing provision (CSAP) must not only allow for permit 

compliance schedules (CS) but also require specifics of how the CS will be implemented in permits:

“(i)ndividual compliance schedules must be consistent with CWA Section 502(17), the state's EPAapproved compliance schedule authorizing provision, and the requirements of §§122.2 and 122.47.” It is 

EPA’s intent in this rule only to add a provision addressing the need for states and authorized tribes, if 

they desire to issue CS for water quality-based effluent limits (WQBELs) in National Pollutant Discharge 

Elimination System (NPDES) permits, to adopt a provision authorizing use of such CS and that such 

authorizing provision be approved under Clean Water Act (CWA) 303(c) as a WQS. Accordingly, because 

the above quoted language in the proposal does more than that, EPA is removing it from the final rule. 

Details regarding what the design and content of individual CS is already addressed by existing language 

in the CWA and Title 40 of the Code of Federal Regulations (CFR) Part 122, especially 40 CFR section 

122.47. EPA does not intend for this rule to change any of the existing CS requirements in Part 122.

Please see response essay 9.b. for related information.

B. Comment That Supports No Specific Time for a Compliance Schedule

A comment supported clarification that the use of permit CS authorized under state or tribal WQS will 

be based on 40 CFR parts 122.2 and 122.47 to achieve compliance as soon as possible, but not a specific 

time period for compliance. EPA notes that the comment raises issues beyond the scope of the 

proposed rulemaking but agrees with the comment that permit CS authorized under state or tribal WQS 

are subject to the relevant provisions in the NPDES regulation at 40 CFR part 122, and that nothing in 

that regulation or the Part 131 regulation limits such schedules to a specific length.

C. Comment about Citations to Statute and National Pollutant Discharge 

Elimination System Regulations

A comment suggested changing the proposed text for 131.15 to include several other citations within 

the NPDES regulation at 40 CFR part 122 in addition to those proposed. EPA appreciates the comment, 

and agrees in principle that permit CS authorized under state or tribal WQS are subject to all relevant 

provisions in the NPDES regulation at 40 CFR part 122. The final rule does not include a list of statutory 

and regulatory citations with which individual permit CS must be consistent because that is beyond the 

scope of the proposal and redundant of other existing provisions in Part 122. CWA section 502 and 

40 CFR part 122 apply to individual CS, even though the final rule at 40 CFR 131.15 does not reiterate 

those citations. Citing those provisions could give the wrong impression that CSAPs must include the 

level of detail already specified in those provisions.

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Chapter 3 – Response Essays 9.c – CSAP – Specific Comments 

D. Comments That Permit Compliance Schedules Are Not Only for Water 

Quality-Based Effluent Limits 

EPA disagrees with some commenters who said that the following proposed regulatory language - 

“authorize schedules of compliance for water quality-based effluent limits (WQBELs) in NPDES permits” 

- could have the effect of narrowing the universe of NPDES permits and permit requirements for which 

permitting authorities can include permit CS. The regulation does not narrow that universe, however, 

nor does it preclude other appropriate uses of permit CS as provided for in section 122.47. The new 

section 131.15 requirements only apply to the authorization of CS for WQBELs in NPDES permits. Such 

WQBELs are designed to meet WQS established by the state or authorized tribe and approved by EPA 

under CWA section 303(c). (40 CFR 122.44(d)(1); 122.44(d)(1)(vii)(A).) Adding this new provision to the 

WQS regulation will encourage the state or authorized tribe to takes the necessary steps to ensure that 

any NPDES permit with a permit CS for a WQBEL is consistent with the state’s or authorized tribe’s

applicable WQS. The requirement in section 131.15 does not preclude, or apply to, use of CS for permit 

limitations or conditions that are not WQBELs. A permitting authority can grant a permit CS for nonWQBEL NPDES permit limits or conditions without an EPA-approved authorizing provision, provided the 

permit CS is consistent with the CWA, EPA’s permitting regulation, especially sections 122.2 and 122.47, 

and any applicable state or tribal laws and regulations. Permitting authorities can include such permit CS

without an EPA-approved permit CSAP because such limits and conditions are not themselves designed 

to implement the state’s or authorized tribe’s approved WQS.

E. Other

With regard to the comments that disagree with EPA’s position that CS are not available for WQBELs 

based on WQS adopted prior to July 1, 1977, see response essay 9.b.

With regard to the comments that section 131.15 is not needed, and that neither CS nor CSAPs are WQS 

that must be submitted to EPA, see response essay 9.b.

With regard to the comments that section 131.15 would require states and authorized tribes to re-adopt 

existing CSAPs as part of its WQS, see response essay 9.b.

With regard to the comments that EPA does not have authority to act on a state’s or authorized tribe’s 

detailed CS regulations, see response essay 9.b.

With regard to the comments that EPA has misapplied or misinterpreted the Star-Kist decision, see 

response essay 9.b.

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Chapter 3 – Response Essays 9.d – CSAP – Other General 

Essay 9.d – Compliance Schedule Authorizing Provisions: 

General Comments

A. General Support

The U.S. Environmental Protection Agency (EPA) appreciates comments in support of permit compliance 

schedules (CS) as tools that can be useful to states and authorized tribes in achieving water quality 

standards (WQS). 

EPA appreciates comments in support of EPA’s proposed clarification of the requirement for states and 

authorized tribes seeking to use CS for water quality-based effluent limits (WQBELs) in National 

Pollutant Discharge Elimination System (NPDES) permits to adopt an authorizing provision and have that 

provision approved under Clean Water Act (CWA) 303(c).

B. Comments regarding Permit Compliance Schedules and Other Mechanisms 

to Achieve Water Quality Standards

Some comments suggested that EPA should also make clear in its rules that states must issue CS as CS

and not use any other mechanisms, such as administrative orders, to achieve the same purpose. These 

comments are outside the scope of this rulemaking, as the rulemaking only addresses compliance 

schedule authorizing provisions (CSAPs). EPA does not think it appropriate to dictate how a state or 

authorized tribe use administrative orders and other judicial mechanisms. 

Some comments suggested that EPA make clear states are to evaluate whether a CS could be used prior 

to pursuing a variance. These comments are outside the scope of this particular provision. Moreover, 

EPA disagrees. There is no CWA or regulatory requirement that states or authorized tribes consider 

whether a CS could be used prior to pursuing a variance, and there is no compelling reason to add such a 

requirement. Permit CS and variances are different tools intended to be used for different purposes. In

many circumstances it may not be appropriate to consider a permit CS before pursuing a variance. For 

example, if it is unknown what concrete actions need to be taken in order to achieve the WQBEL, a 

permit CS would not be appropriate. For more information on EPA’s expectations regarding 

appropriateness of permit CS, see the memorandum from James A. Hanlon, EPA, to Alexis Strauss, EPA 

Region 9, Re: Compliance Schedules for Water Quality-Based Effluent Limitations in NPDES Permits (May 

10, 2007) (http://www.epa.gov/npdes/pubs/memo_complianceschedules_may07.pdf). As discussed in 

the WQS variance section of EPA’s preamble, CS and variances are not mutually exclusive, and in some 

cases a CS may be needed during the term of a variance. See response essay 8.e. and 8.f.i. for additional 

information on the relationship between CS and variances. 

EPA understands that commenters’ concern is whether EPA’s proposed variance rules will really lead to 

incremental water quality improvements, and the commenter’s general opinion is that CS are better 

positioned than variances to ensure progress is made. EPA revised its final variance rules in response to 

some of these comments. See EPA’s final rule preamble for more detailed discussion on how EPA 

revised the final variance rule to ensure progress in achieving WQS. 

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Chapter 3 – Response Essays 9.d – CSAP – Other General 

C. Comments regarding the Universe of National Pollutant Discharge 

Elimination System Permits to Which Section 131.15 Applies

Some commenters requested clarification on the universe of NPDES permits and permit requirements to

which EPA’s new regulation at section 131.15 applies. Some comments suggested that EPA clarify that 

the proposed CS regulations are limited to numeric WQBELs. Others recommended that EPA clarify in 

the preamble that CS can be used not only for classic point source NPDES permits but also stormwater 

permits. EPA discusses this issue in detail in section F of its preamble. Specifically, it says “The new 

§ 131.15 requirements only apply to the authorization of compliance schedules for WQBELs in NPDES 

permits. Such WQBELs are designed to meet WQS established by the state or authorized tribe and 

approved by EPA under CWA section 303(c).1 Adding this new provision to the WQS regulation will 

ensure that the state or authorized tribe takes the necessary steps to ensure that any NPDES permit 

with a permit compliance schedule for a WQBEL is consistent with the state’s or authorized tribe’s

applicable WQS. The requirement in § 131.15 does not preclude, or apply to, use of compliance 

schedules for permit limitations or conditions that are not WQBELs. A permitting authority can grant a 

permit compliance schedule for non-WQBEL NPDES permit limits or conditions without an EPAapproved authorizing provision, provided the permit compliance schedule is consistent with the CWA, 

EPA’s permitting regulation, especially §§ 122.2 and 122.47, and any applicable state or tribal laws and 

regulations. Permitting authorities can include such permit compliance schedules without an EPAapproved permit compliance schedule authorizing provision because such limits and conditions are not 

themselves designed to implement the state’s or authorized tribe’s approved WQS.” For example, for a 

municipal separate storm sewer system (MS4) permit in which the effluent limitations are not WQBELs, 

the state does not need to have authorized itself to give permit CS for these kinds of limits, since the 

limits are not derived from WQS. EPA has revised the final regulatory text to make this clear. It is also 

important to note that the key factor to consider is whether the limit to which the CS applies is intended 

to meet the WQS, not whether the limit is numeric or narrative.

D. Comments regarding the 2007 EPA Memo on Compliance Schedules for 

Water Quality-Based Effluent Limitations in National Pollutant Discharge 

Elimination System Permits

A comment suggested that all aspects of the memorandum from James A. Hanlon, EPA, to Alexis 

Strauss, EPA Region 9, Re: Compliance Schedules for Water Quality-Based Effluent Limitations in NPDES 

Permits (May 10, 2007) should be incorporated into the final regulation. This comment is beyond the 

scope of the proposed rulemaking whose limited purpose was to establish a regulatory provision 

regarding CSAPs. That memorandum articulates EPA policy guidance regarding use of CS and many 

elements of the memorandum reflect provisions of the NPDES permitting regulations at part 122, which 

are already themselves legally binding requirements. 

 

1 40 CFR 122.44(d)(1); 122.44(d)(1)(vii)(A).

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Chapter 3 – Response Essays 9.d – CSAP – Other General 

E. Comments regarding Limitations on and Conditions of Permit Compliance 

Schedules

EPA received multiple comments regarding the requirements at sections 122.2 and 122.47 for CS

themselves. These comments included reconsidering how interim requirements and dates for their 

achievement are established in CS, limiting CS to 5 years or a permit term, addressing when a CS may be 

modified, prohibiting CS for new and increased discharges of pollutants, and whether EPA’s regulations 

should provide any limitations on the States’ authority to establish CS. EPA is not responding to 

suggestions for rulemaking regarding the components or implementation of permit CS themselves 

because these comments are beyond the scope of this rulemaking which is focused solely on the need 

for states and authorized tribes to obtain EPA approval as a WQS of the state or authorized tribe’s 

provisions to authorize use of schedules of compliance for WQBELs in NPDES permits. EPA did not 

propose or solicit comment on the regulatory provisions that apply to permit CS themselves, namely the 

regulations at Title 40 of the Code of Federal Regulations (CFR) sections 122.2 and 122.47. As clearly

stated in the final rule, section 131.15 does not change those regulatory requirements.

See also response essay 9.b for a discussion about why section 131.15 is needed even though there are 

federal permitting requirements for CS themselves, and even though states and authorized tribes have 

the authority to decide whether or not to authorize permit CS. 

F. Comments on Specific State and Authorized Tribal Situations

Multiple commenters remarked that specific states or authorized tribes already have CSAPs that they 

believe are consistent with the proposed requirement. Other commenters remarked that specific states 

or authorized tribes have programs that they believe would not be affected by a requirement for CSAPs. 

Other commenters remarked that a specific state or authorized tribe’s current regulations are already in 

place and are not subject to further action under 303(c). It is beyond the scope of this rulemaking for 

EPA to evaluate specific states for consistency with the final rule, and EPA will not express agreement or 

disagreement here with the specific situations that commenters point out. EPA recommends states and 

authorized tribes evaluate their program for consistency with the final regulation at 131.15. States and 

authorized tribes should work with their EPA Regional offices, which are available to assist states and 

authorized tribes with any questions about the final requirements. See response essay 9.b for additional 

discussion about the need for 303(c) approval by EPA of existing CSAPs and how EPA approval does not 

require re-adoption of the provision by the state. 

One commenter asked what process EPA will use “to evaluate if a state or tribe has compliance 

schedules in law.” EPA interprets this question as referring to whether a state or authorized tribe has an 

approved CS authorizing provision. The EPA regional offices will work with states and authorized tribes 

to determine whether any additional action is necessary in order to be consistent with the final rule.

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Chapter 3 – Response Essays 9.e – CSAP – Legal 

Essay 9.e – Compliance Schedule Authorizing Provisions: EPA’s 

Legal Authority

A. General Support

The U.S. Environmental Protection Agency (EPA) appreciates comments supporting the general purpose 

of the addition of the provision at section 131.15.

B. Comments That Section 131.15 Is Not Needed

For a response to comments suggesting that section 131.15 is not needed and should be eliminated, see 

response essay 9.b. section E.

C. Comments regarding the Need for Re-Approval of a Compliance Schedule 

Authorizing Provision as Water Quality Standards

For comments regarding the need to re-approve compliance schedule authorizing provisions (CSAPs)

since states have been issuing compliance schedules (CS) legally up until this point, see response essay 

9.b. section E.

D. Comments regarding Permit Compliance Schedules for Water Quality 

Standards Adopted after July 1, 1977

For a comments reflecting concern with EPA’s interpretation of the Star-Kist Caribe decision and permit 

CS for water quality-based effluent limits (WQBELs) based on water quality standards (WQS) adopted 

after July 1, 1977, see response essay 9.b. section I.

E. Comments regarding the Appropriateness/Authority for Section 131.15 

For comments regarding EPA’s authority to establish these requirements, concern about the detail of 

CSAPs and concern that EPA is placing limitations on the implementation of CS, see response essay 9.b. 

section N and 9.c section A. 

For comments regarding EPA’s authority to require that provisions authorizing CS be submitted to EPA 

for review and approval or disapproval, see response essay 9.b section C.

For comments that the Federal regulations already authorize CS, see response essay 9.b. section E.

Some commenters stated that whether a state agency is issuing CS without proper authorization in state 

law or state regulation is an issue for the state legislature or state courts to address, not an issue subject 

to oversight by a federal agency. Whether a state has authority to issue CS in permits would be a matter

of interest to the state legislature and possibly state courts. EPA’s regulations at Title 40 of the Code of 

Federal Regulations (CFR) section 123.25(a)(18) make it a program authorization requirement that state 

programs have legal authority to implement, among other things, EPA’s regulatory requirements at 

122.47 regarding schedules of compliance. If, however, a state issues CS for WQBELs in National 

Pollutant Discharge Elimination System (NPDES) permits without an authorizing provision approved by 

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Chapter 3 – Response Essays 9.e – CSAP – Legal 

EPA pursuant to Clean Water Act (CWA) 303(c) as part of the state’s WQS, the state runs the risk that 

someone might challenge such CS as inconsistent with CWA 301(b)(1)(C) and 40 CFR. 

122.44(d)(1)(vii)(A). It was to help states avoid that risk that EPA issued today’s rule. For additional 

discussion on how permit CS relate to state law, see response essay 9.b section J.

Some comments also stated that schedules of compliance for implementing or achieving WQS standards 

are a matter for states/tribes and not for EPA. They cited to CWA sections 303(e) and 510 and certain 

quotes from the Star-Kist Caribe, Inc. Decision. For a discussion of EPA’s authority for section 131.15, 

how it relates to CWA section 303(e) and continuing planning processes (CPPs), and comments 

regarding the Stark-Kist Caribe, Inc. decision, see response essay 9.b.

F. Compliance Schedule Authorizing Provisions Should Not Be in Water Quality 

Standards

For comments that CS or CSAPs should not be a part of WQS, see response essay 9.b sections C-G, J, 

and M.

G. Comments regarding Confusion about Whether Compliance Schedules Can 

Be Authorized for Anything Other than Water Quality-Based Effluent Limits 

With regard to commenters noting confusion about whether CS can be authorized for anything other 

than WQBELs, see response essay 9.b section O and 9.c section D.

H. Compliance Schedules Are Part of the Continuing Planning Process, Not 

Water Quality Standards

With regard to commenters noting that CS are part of the CPP, not WQS, see response essay 9.b 

section G. 

One commenter said that the CWA does not give EPA authority to rename part of the CPP as a WQS, 

such as the CSAPs. They said that “...then EPA could rename any requirement of state law, call it a part 

of “water quality standards,” and make it subject to EPA’s approval.” EPA has not arbitrarily determined 

that CSAPs are WQS that must be reviewed and approved or disapproved by EPA while individual CS are 

not. EPA’s final rule preamble at section F discusses why a provision authorizing the use of CS is a WQS

and why EPA approval of such provision as a WQS helps ensure the legality of including such CS in an 

individual permit. See also response essay 9.b section E.

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