# CHAPTER 3 Issue Category: Antidegradation

Pages 3- 138 – 3- 289

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 7.a – Antideg – Gen Supp



## Essay **7.a – Antideg**  **radation: General Support** 

The U.S. Environmental Protection Agency ( EPA ) agrees with commenters that high quality water is a precious resource and that maintaining high water quality is consistent with the intent and purpose of the Clean Water Act ( CWA ) . EPA agrees that improv ing the Tier 2 review process will better protect h igh quality waters, which are important resources, consistent with the CWA intent and purpose. EPA agrees with commenters that it is important for states and authorized tribes to seek alternatives to degradation of high water quality.

EPA agrees with comme nts expressing that per CWA section 303, states and authorized tribes have primacy in developing and implementing water quality standards ( WQS ) . EPA agrees that EPA’s proposal appropriately did not intrude on the specifics of antidegradation implementation. The final rule continues to provide state s and authorized trib es with flexibility in most aspects of implementation.

EPA agrees with comments stating that EPA’s proposal added clarity and flexibility to the antidegradation review process.

EPA disagrees with some comments that expressed concern that EPA’s proposal preamble was an attempt to establish supplemental rules. The proposal preamble and the final rule preamble provide policy statements to accompany the regulatory text, and do not es tablish any independent binding rules. Only the regulation itself is legally binding. EPA also disagree s that “the current Tier 2 process frequently fails to protect high quality waters.” Prior to today’s rule, the Tier 2 regulations and process resulted i n many protections for high quality waters. EPA is finalizing today’s rule to improve the Tier 2 process and further enhance protection to high quality waters.Chapter 3 – Response Essays 7.b – Antideg – Gen Opp



## Ess **ay 7.b**  **– Antidegradation**  **: General Opposition** 

**A. General Support** 

The U.S. Environmental Protection Agency ( EPA ) agrees with comments stating that the principle of antidegradation is necessarily inferred from the goals and mandates of the Clean Water Act ( CWA ). EPA agrees with comments that states ’ and tribes’ antidegradation policies and antidegradation implementation methods should be readily available to the public and dischargers.



### B. **Comments T**  **hat A**  **dditional R**  **equirements at 131.12**  **W ill**  **N ot**  **Fix U neven**  **I mplementation** 
EPA disagrees with commenters who argued that a national rule is not needed to address uneven and sometimes deficient implementation in states and tribes. EPA recognizes commenters’ points that state and tribal agencies face challenges such as resource constraints and differing priorities, and does not dispute these challenges. EPA’s revisions are partly intended to preserve mechanisms, such as the water body – by – water body approach to identifying high quality waters, states and authorized tribes can utilize to most effectively use these limited resources in a manner consistent with the CWA. Commenters also stated that lack of EPA guidance was a reason for the uneven implementation. EPA
agrees that implementation may improve if EPA provided additional guidance

. EPA plans to enhance its guidance on antidegradation after the final rule is published. However, EPA disagrees that these specific regulatory revisions are not necessary. EPA guidance would not establish requirements for states. Howev er, with new regulatory requirements, states will be required to implement antidegradation in a manner consistent with the regulations.

Commenters did not provide specific reasons for asserting that any revisions to 131.12 would not lead
to improve ments in implementation. EPA’ s view is that while resource constraints, priorities, and lack of guidance may contribute to uneven implementation, adding more detail to a few aspects of the federal antidegradation provisions will provide more clarity and therefore improve implementation in a streamlined and transparent manner

.



### C. **Comments T**  **hat the C**  **lean Water Act I**  **s S**  **ufficiently P**  **rotected**

A commenter stated that the CWA is s ufficiently protected with the curre nt regulations and “ proposed rule. ” EPA is unclear what the commenter meant by “ and proposed rule ” but disagrees that the CWA “ is sufficiently protected .” EPA’s view is that as water qual i ty challenges and state antidegradation programs have evolved over time, the regulations must be revised to ensure that programs continue to provide the antidegradation protection envisioned under the CWA. In addition, the proposed rule was not legally binding, and thus provide s no additional protection. EPA is therefore finalizing revisions to section 131.12 fo und in today’s final rule.



### D. **Comments T**  **hat A**  **ntidegradation I**  **mplementation I**  **s in the Water Quality**  **Management Program, N**  **ot W**  **ater Quality Standards**
A commenter expressed the view that the federal regulation should not require states and tribes to adopt their antidegradation implementation methods as water quality standards (WQS) becauseChapter 3 – Response Essays 7.b – Antideg – Gen Opp

i mplementation has been typically handled in the water quality management p lan s or proposed antidegradation rules (which are already evaluated by EPA). While some states may include their antidegradation implementation methods in the state water quality management plans, this is not a requirement in the federal regulations (See Title 40 of the Code of Federal Regulations ( CFR ) section 130.6). Likewise, not all states or authorized tribes adopt their antidegradation implementation methods into proposed rules that are evaluated by EPA. Regardless, EPA’s final rule does not require adoption of implementation methods as new or revised WQS

. Today’s rule at s ection 131.5(a)(3) ma kes explicit EPA’s authority to review states’ and authorized tribes’ antidegradation policies and any adopted antidegradation implementation methods and to determine whether those policies and methods are consistent with section 131.12. Please see EPA’ s f inal rule preamble section D , subsection titled Antidegradation Implementation Methods and response essay 7.f.i. for additional discussion.



### E. **Comments T**  **hat D**  **esignated U**  **ses S**  **hould B**  **e P**  **rotective E**  **nough**
EPA disagrees with comment s arguing that water bod ies are adequately protected if the designated uses and “ associated water quality standards ” are attained and that an antidegradation program is not necessary to prevent degradation of a water body. Antidegradation provides protection beyond the protection pro vided by designated uses and water quality criteria. EPA’s proposal and final rule address enhancements to the specific part of an antidegradation program that protects high quality waters, therefore EPA will address these comment s in that context. In wate rs with high water quality, the water quality is better than necessary to support protection and propagation of fish, shellfish, and wildlife and recreation in and on the water, (i.e.
, the CWA section 101(a)(2) goals) and is thus, in most cases, better tha n necessary to meet the designated uses and criteria. As discussed in the final rule preamble s ection D, this increment of “ ...high quality water provides a margin of safety that will afford the water body increased resilience to potential future stressors, including climate change ” . The purpose of the antidegradation requirements at section 131.12(a)(2) is to ensure states and authorized tribes go through an informed and public decision

- making process before allowing degradation of this water quality. Withou t such a process, high quality waters could be degraded from their current high quality down to the minimum required by the designated uses and criteria unnecessarily . A commenter stated that “ minor degradation ” where “ water quality standards ” are being me t might have little or no impact

on uses. In the context of the comment, it is unclear what is meant by “ water quality standards ” or

“ minor degradation. ” I n some instances, de minimis (i.e. insignificant) degradation may have little or no impact on the designated use if the water quality criteria is being met. However, as discussed earlier, the purpose of EPA’s revisions are to protect waters where the attained water quality is better than the CWA’s objectives unless the state makes a finding that degrading the water quality is necessary. W hile de minimis degradation may not result in a failure to protect designated uses, it does cause loss of assimilative capacity of the water body and diminishes the water body’s resilience to future stressors.

Commenter s also pointed out that the proposed rule did not define how much decline equals degradation. EPA’s regulations do not define “ degradation ” because it provides stat e s and authorized tribes the discretion to address this question in their individual antideg radation programs. Some states and tribes define “ degradation ” formally and have antidegradation policies that specifically exempt discharges that would cause “ insignificant degradation ” from Tier 2 review. Please see EPA’s final rule preamble s ection D and response essay 7.i. for additional information on de minimis significance thresholds for antidegradation.Chapter 3 – Response Essays 7.b – Antideg – Gen Opp



### F. **Comments T**  **hat EPA’s**  **P roposal**  **I s a**  **R adical**  **Revision R eversing**  **E stablished**  **L aw** 
EPA disagrees with comments stating that EPA's proposed revisions to the antidegradation rule are a

“ radical revision of the current antidegradation rule ” that reverses established law regarding antidegradation requirements. The proposed rule did not propose to and the final rule does not radically revise or reverse established federal antidegradation rules. The changes to 131.12 are consistent with the previous version of 131.12, while providing clarifying requirements to ensure that state and authorized trib es continue to develop and implement antidegradation programs con sistent with the CWA and section 131.12 and with adequate public involvement

.

None of these revisions are radical. The water body - by

- water body approach and parameter

- by

parameter approaches were discussed in the 1998 Advance Notice of Proposed Rulemaking ( ANPRM )
, where EPA articulated that either approach, when properly implemented, is consistent with the CWA, and described advantages and disadvantages to both approaches. However, the A gency has found that it is possible for states and authorized tribes to identify high quality waters in a manner inconsistent with the CWA and the intent of EPA’s implementing regulations. Today’s rule reaffirms EPA’s support for both approaches, while ensuring that use of the water body - by - water body approach is consistent with the CWA.

The new regulatory requirement for an analysis of alternatives found at 40 CFR section 131.12(a)(2)(ii) is also not radical. A similar concept was considered and addressed in the water quality requirements for the Great Lakes state s in 1995 (see 40 CFR part 132, Appendix E). 40 CFR part 132 Appendix E requires that any entity seeking to degrade high water quality must submit an antidegradation demonstration for consideration by the state. This demonstration includes an analysis iden tifying cost

- effective pollution prevention alternatives and techniques, as well as an analysis identifying alternative or enhanced treatment techniques (and their relative costs) that are available to the entity and that would eliminate or significantly r educe the ex t ent to which the increased loading results in a lowering of water quality. Today’s final rule provides that before allowing a lowering of high water quality, states and authorized tribes must find, after an analysis of alternatives, that such a lowering is necessary to accommodate important economic and social development in the area in which the waters are located. That analysis must evaluate a range of non

- degrading and less degrading practicable alternatives. 40 CFR 131.3(n) defines “ practicable ” to mean “ technologically possible, able to be put into practice, and economically viable. ” The requirement at 40 CFR 131.12(a)(2)(ii) provides transparency and consistency in states’ and authorized tribes’ decisions about high water quality. The new requirement makes the analysis of alternatives an integral part of a state’s or authorized tribe’s finding that degradation of high quality water is “ necessary. ” Such an analysis provides states and authorized tribes with a basis to make informed and reaso ned decisions, assuring that degradation only occurs when truly necessary.

In regards to the antidegradation implementation methods, the new public involvement requirement is rooted in the CWA

. As discussed in the preamble to the final rule, “ CWA section 101(e) provides that ‘public participation in the development, revision, and enforcement of any regulations, standard, effluent limitation, plan, or program established [...] under this Act shall be provided for, encouraged, and assisted [...].’ Thus, today’s rule also provides for public involvement during the development or revision of implementation methods. ” It is reasonable to expect states and authorized tribes to involve their public when deciding how to protect the waters as such waters are a public reso urce. EPA’s regulations provide sufficient flexibility for the states and authorized tribes to decide the best way to effectively engage their own public where the implementation methods are not legally binding. WhereChapter 3 – Response Essays 7.b – Antideg – Gen Opp

the methods are legally binding, the a ppropriate federal and state administrative procedures requirements apply.



### G. **Comments T**  **hat EPA B**  **ased t**  **he R**  **egulation on F**  **aulty A**  **ssumptions /R**  **ationales**
Some commenters disputed EPA’s position in the proposal preamble that antidegradation is not being implemented as effectively as it could be. Specifically, commenters stated that the preamble to the proposal provided unsupported claims that the nation’s water quality is declining as a result of an

“ increasing degree of stre ss from anthropogenic influences ” and that current antidegradation policies must be ineffective because there are increasing numbers of waters that are listed as impaired. Commenters said that EPA should not present that information as evidence that water quality is worsening, because the increasing number of impaired waters has other causes (e.g., monitoring has improved, assessment and modeling tools have improved, WQS have become more stringent, etc.). EPA’s preamble statement did not attribute the incre asing number of impaired waters solely to deficient antidegradation implementation. As EPA stated in the proposal preamble, EPA received substantial feedback from stakeholders that existing CWA antidegradation regulatory provisions and related guidance hav e not been fully successful in ensuring consistent and effective implementation of Tier 2 high quality water protections. EPA agree s that the increasing number of waters listed as impaired has many causes, including the cause s cited by commenters. And EPA appreciates state efforts to improve monitoring and assessment. However, it is reasonable for EPA to use the increasing number of impaired waters (as well as feedback from stakeholders) as a basis for strengt hening the Tier 2 regulations. EPA’s final rule represents an effort to strengthen the regulations to facilitate efforts to protect high quality
waters . While commenters provided additional reasons for why additional waters have been listed under CWA section 303(d), the commenters do not refute that the nation’s waters are indeed being degraded nor do they provide evidence that today’s antidegradation programs are sufficient.



### H. **Comments T**  **hat EPA S**  **hould N**  **ot A**  **dopt R**  **egulations T**  **hat I**  **nfringe on**  **S tate**  **P rimacy** 

Some commenters provided examples of how several states design their antidegradation implementation programs. These commenters maintained that state s should be given more discretion in antidegradation implementation than EPA proposed. Other commenters maintain ed that state are in the best and primary position to exercise good, independent judgment to prevent degradation.

While states play a key role , EPA d isa grees that the state alone is in the best and primary position to prevent degradation . The CWA gives EPA an important role in determining appropriate minimum levels of protection and providing national oversight. It also gives considerable flexibility and discretion to states and authorized tribes to design their own programs and establish levels of protecti on above the national minimum. EPA’s view is that the final regulation strikes the appropriate balance of preserving
sta te discretion with some boundaries to ensure that even utilizing its flexibility, states and authorized tribe’s programs will continue t o be consistent with the CWA and the federal regulations

. Some commenters argued that states are already implementing successful programs and that EPA should work collaboratively with states that are not adequately implementing antidegradation prior to (or instead of) undertaking rulemaking. EPA agrees that it should work collaboratively with states that are not adequately implementing antidegradation, however it disagrees that such work must occur prior to or instead of the revisions to section 131.12. EPA ’s regulation is intended to provide transparent requirements so states and authorized tribes develop and implement antidegradation programsChapter 3 – Response Essays 7.b – Antideg – Gen Opp

consistent with the CWA and regulation. EPA cannot expect states to revise their programs if the federal requiremen ts are not clear. Once EPA revises the rule, EPA will work with states and authorized tribes to ensure that adequate revisions are made, where necessary. Please s ee response essay 7.c for additional discussion.

Some commenters expressed that specific state antidegradation regulations that have already been developed with public involvement and approved by EPA as adequate and should not have to be revised. EPA disagrees. CWA s ection 303(c)(1) and the implementing regulations at 40 CFR 131.20 require states and tribes to hold public hearings at least once every 3 years for the purpose of reviewing applicable WQS and, as appropriate, modifying and adopting standards. Federal, state and authorized tribal regulations are always evolving to keep pace with environmental and administrative challenges. It is unreasonable to expect that once a state ’s or authorized trib e’s WQS are approved that such WQS will never again need to be revised. This practice would lead to state and authorized tribal WQS to quickly become obsolete and ineffective at protecting the waters in its jurisdiction for the use the state and authorized tribe itself has articulated as the desired condition. Therefore, EPA fully expects states to revise their antidegradation regulations and methods to ensure consistency with the final rule requirements. EPA does not expect such changes to occur instantaneously. EPA provides some flexibility, stating in its preamble that “ EPA’s ex pectation is that, where a new or revised requirement necessitates a change to state or authorized tribal WQS, such revisions will occur within the next triennial review that the state or authorized tribe initiates after publication of this rule. ”



### I. **Comments T**  **hat EPA’s**  **Revisions W ould**  **H ugely**  **B urden**  **S tates**  **and P**  **ermittees**
Commenters expressed concern that the proposed changes to antidegradation requirements would greatly increase administrative burden on states and decrease the State’s ability to provide sou nd water quality management . EPA disagrees. M any states and authorized tribes will incur a one

- time administrative burden to make changes to their regulations for consistency with the final rule. However, some states may face no additional burden. EPA has accounted for these costs in its economic analysis (EA) . Based on that analysis, those costs are not significant and EPA has finalized regulatory revisions that are necessary to ensure that sound water quality management decisions are made nationally. For
states and authorized tribes that currently have WQS that are consistent or mostly consistent with today’s rule
, EPA expects that any revisions to those water quality will have minimal burden on the state and minimal impact on the state or authorized trib e’s decision making process.

EPA disagrees with comments stating that the rule will place excessive burden on permittees seeking authorization because permittees would not be allowed to increase any pollutants to a stream unless they demonstrated they were applying the most stringent wastewater technology that could be paid for by the company and no other project options were determined to be available that would decrease pollutant loading, including a reduced proj ect scope or no project at all. The final r equirement for alternatives analysis, like the proposed requirement, allows for considerable state and tribal discretion. The rule does not require permittees to implement any alternative that is not “ practicable, ” nor are they required to implement the “l east degrading ” practicable alternative.

Please see response essay 12.a. for additional discussion on the administrative burden of this rule.Chapter 3 – Response Essays 7.b – Antideg – Gen Opp



### J. **Comments Q**  **uestioning H**  **ow W**  **aters C**  **an B**  **e B**  **oth “H**  **igh Q**  **uality ”**  **and “I**  **mpaired ” S**  **imultaneously**

A commenter stated that the proposal would make antidegradation policies apply to many waters that are ‘impaired,’ making them both ‘high quality’ and ‘impaired’ at the same time. EPA agrees that it is possible for a water to be considered “ high quality ” (for purposes of Tie r 2 of antidegradation) and

“ impaired ” (by the 303(d) listing program) at the same time. For example, a water might be of high quality with respect to some chemical, physical, and biological paramete rs but impaired with respect
to others. Tier 2 can provide protection for the high water quality that exists in the water body (e.g., assimilative capacity for some parameters), despite having impairments with respect to other parameters. CWA s ection 101(a) includes the objective to “ restore and maintain the che mical, physical and biological integrity of the Nation’s waters. ” The potential for a water to be both high quality and impaired is evident in this section of the CWA. This goal can only be met by restoring the Nation’s waters and by maintaining the chemic al, physical and biological integrity which has been achieved. Restoration and maintenance may occur on a single waterbody for different parameters. Waiting to “ maintain ” water quality when a water body is completely unimpaired on every parameter would likely result in no waters eventually being restored.

To be clear, “ antidegradation policies ” do apply to impaired waters; for instance , Tier 1 of antidegradation applies to all waters of the U.S.



### K. **Comments T**  **hat t**  **he Revisions A**  **ren’t P**  **rotective E**  **nough**

EPA disagrees with comments stating that the proposal fell short of meeting the CWA’s objective of maintenance of high quality waters. EPA’s view is that the final regulation strikes the appropriate balance of providing appropriate boundaries to ensure that antidegradation programs are developed and implemented consistent with the CWA and regulations but also allows states and authorized tribes an appropriate level of discretion to make water quality management decisions that are case specific and appropriate for the state/tribe. EPA does not believe a one size fits all approach will lend itself to the most effective antidegradation program nor is it consistent with the CWA’s intent to provide states and authorized tribes a level of primacy to make their own specific decisions as long as they are consistent with the CWA requirements.

For comments that EPA should require states and authorized tribes to use a parameter by parameter approach when identifying high quality waters, please see response essay 7.d.ii. Fo r comments that EPA should require states and authorized tribes to analyze the least degrading or non

- degrading alternative for any determination that lowering water quality is necessary, please see response essay 7.e.ii and 7.e.iv.



### L. **Comments T**  **hat t**  **he Pr**  **oposal W**  **as A**  **mbiguous**

EPA agrees with commenters stating that more requirements are needed to ensure adequate protection of water quality . EPA considered comments arguing that the proposal was ambiguous or unclear
, and disagrees that the proposal was ambiguous and unclear and did not give adequate guidance about how to conduct Tier 2 review. The proposal preamble provided additional explanation for the proposed requirements. EPA intentionally did not propose nor finalize detailed requirements for how to conduct a Tier 2 review, in order to continue to provide for state and tribal flexibility and innovation, provided that the basic requirements of Tier 2 protection are covered. EPA’s finalized revisions are focused on howChapter 3 – Response Essays 7.b – Antideg – Gen Opp

states and authorized tribes decide which waters are high quality, how they determine whether a lowering of water quality is “necessary” and ensuring that antidegradation implementation methods are developed and antidegradation related decisions are made t aking into account public input. EPA intends to provide additional guidance on conducting Tier 2 reviews subsequent to the final rule

.Chapter 3 – Response Essays 7.c – Antideg – Guidance



## Essay **7.c – Antideg**  **radation: Guidance** 

The U.S. Environmental Protection Agency ( EPA ) agrees with the comment that the principle of antidegradation is one of the most powerful, yet underutilized, components of states’ and tribes water quality standards ( WQS ) , as evidenced, for example, by many states’ and tribes’ lack of waters protected

as outstanding national resource waters ( ONRWs ) , the growing number of impaired waters in the U nited States , and the EPA’s national Rivers and streams assessment. EPA als o agrees with the observation that implementation methods are not consistent nationally, and that this inconsistency highlights the need for more guidance and oversight to ensure that the purpose of antidegradation is achieved. Today’s rule provides regula tory requirements that will promote consistency nationwide and allows for more public oversight and engagement

. EPA intends to provide subsequent guidance after promulgation of the final rule . The comment specifically seeks guidance on antidegradation impl ementation for Tier 1 and for water quality trading. These topics are outside the scope of today’s rulemaking, therefore, EPA is not promulgating any rule provisions addressing Tier 1 or water quality trading programs. However, EPA will consider those as p otential topics to address in subsequent guidance. Meanwhile, EPA suggests consulting available EPA resources on water quality trading at http://water.epa.gov/type/watersheds/trading.cfm

.

A comment suggests that instead of promulgating regulatory revisions, EPA should work closely with states to determine why implementation is lacking in order to find solutions (presumably non

regulatory) . It further suggests that the problem of some states not implementing, or inadequately implementing, antidegradation can be addressed by clearer EPA guidance. While EPA agrees that additional guidance can only be helpful and that the Agency should work collaboratively with States and authorized tribes , EPA d isagrees that it is necessary to do these before revising the regulations. As discussed in response essay 7.b., EPA’s regulation is intended to provide transparent requirements so states and authorized tribes develop and implement antidegradation programs consistent with the Clean Water Act ( CWA ) and regulation. EPA cannot expect states to revise their programs if the federal requirements are not clear about what is necessary. Once EPA revises the rule, EPA will be better equipped to work with states and authorized tribes to ensure that adequate revisions are made, where
necessary.
EPA established its modern WQS regulation in 1983, a nd EPA has provided guidance in the form of the WQS Handbook and various memos and other documents since 1983 which are all a vailable on EPA’s website at http://water.epa.gov/scitech/swguidance/standards/library/index.cfm

. In addition , EPA Regions work individually with states and authorized trib es when they have specific questions or difficulties with developing or revising their antidegradation programs. Again, EPA does plan to provide updated guidance subsequent to the final rule , so that the guidance can incorporate elements related to the rev ised regulations

.Chapter 3 – Response Essays 7.d – Antideg – ID HQ Waters



## Essay **7.d – A ntideg**  **radation: Identification of High Quality Waters** 

No comments are assigned to this issue category, and thus no response is necessary.Chapter 3 – Response Essays 7.d.i – Antideg HQ – Gen Supp



## Essay 7. **d.i – Antideg**  **radation and High Quality Waters: General Support**  **for Proposed Revision**

**A. Support for EPA**  **’ s**  **P roposal** 
The U.S. Environmental Protection Agency ( EPA ) considered comments supporting the proposed language regarding identification of high quality waters for Tier 2 protection. EPA also considered comments stating that how states identify waters for Tier 2 protection is a key issue. EPA agrees with these comments.

A co mmenter stated that the proposal addresses the concern that states and tribes in the past have identified a water body not as a high quality water, specifically on the basis that the water body did not satisfy all the uses specified in the Clean Water Act ( CWA ) section 101 (a) (2). The comment states that the practice that may be based on a mere technicality seems to be against congress' intent, as a water body that exceeds most of the uses specified but may be slightly under the threshold for one use would thus become excluded from the Tier 2 designation, and the higher protection afforded due to that designation. Given the overall purpose of the CWA and Congress' intent to “ restore and maintain the chemical, physical, and biological integrity of the Nation's waters ” (CWA s ection 101 (a)), it is clear that those water bodies with quality that exceed the levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, should be given the Tier 2 designation.

EPA agre es with the comment that it is important to take a holistic evaluation of the water body itself, to evaluate all the chemical, biological, and physical characteristics in an effort to achieve the overall goal of the CWA

. Other commenters reiterated the imp ortance of a holistic evaluation of the water body and stated that that the proposal would result in Tier 2 protection for an increased number of deserving
waters. The preamble to the final rule explains the holistic evaluation: “ To make a decision to exclude a water body from Tier 2 protection, states and authorized tribes must identify the factors considered which should include factors that are rooted in the goals of the CWA, including the chemical, physical, and biological char acteristics of a water body

. Where states and authorized tribes wish to consider CWA section 303(d) listed impairments, it would be important that they also consider all other relevant available data and conduct an overall assessment of a water ’ s character istics. It would also be important that states and authorized tribes consider the public value of the water. This includes the water ’ s impact on public health and welfare, the existing aquatic and recreational uses, and the value of retaining ecosystem res ilience against the effects of future stressors, including climate change... The rule provides for a decision

- making process where states and authorized tribes consider water quality and reasons to protect water quality more broadly. This can lead to more robust evaluations of the water body , and potentially more waters receiving Tier 2 protection. ”

EPA agrees that a holistic evaluation will provide Tier 2 protection for an increased number of waters that are high quality for certain parameters (while not high quality for other parameters). EPA found that without a change to the regulation, states or authorized tribes could decline to provide Tier 2 protection for waters that could otherwise be considered high quality, without any reason other than the fact tha t it is listed pursuant to CWA section 303(d) for one parameter, and without any opportunity for public involvement on that decision. Maintaining the status quo would be contrary to the environmental goal for this rule which is to enhance the antidegradation requirements to promote more effective and widespread protection of high quality waters in order to maintain resilience to futureChapter 3 – Response Essays 7.d.i – Antideg HQ – Gen Supp

environmental and anthropogenic stressors. EPA also agrees with the comment that the proposal would have codified (and the final rule does codify) the flexibility to use the water body

- by

- water body approach.

Multiple commenters agreed with EPA ’ s proposal to explicitly allow states and authorized tribes the flexibility to identify waters for Tier 2 protection on a parameter

- by

- parameter or a water body

- by

water body basis. Commenters said that the final rule should allow states and authorized tribes the discretion to use either method. Commenters stated that EPA correctly referred to states ’ and authorized tribes ’ primary role in developing and implementing their water quality standards ( WQS ) under CWA 303, and that EPA ’ s proposal preserved discretion regarding identification of high quality
waters. Commenters pointed out that EPA ’ s proposal generally tracked the rationale of the federal courts that have affirmed the water body

- by

- water body option on the basis of an overall holistic
assessment.

Some commenters stated that the mechanism by which waters receive Tier 2 protection on a water body

- by

- water body basis should be at the state or authorized tribe ’ s discretion. EPA received comments describing specific state approaches (for example, using biological criteria to determine the subcategories of aquatic life uses )

. EPA agrees that the precise mechanism for identifying waters for Tier 2 protection is at the discretion of the states and authorized tribes, provided protection is provided consistent with the final rule requirements. EPA continues to recognize states ’ and authorized tribes ’ discretion to use a water body

- by

- water b ody approach to prioritize their resources, understanding that those decisions may be based on considerations not limited to water quality alo ne. EPA ’ s view is that it is possible to use a water body

- by

- water body approach in ways that are consistent with the CWA and Federal WQS regulation. EPA recognizes that there may be multiple ways for a state or authorized tribe to develop a water body

- based approach consistent with the goals of the CWA and the antidegradation regulation
, and that many states and auth orized tribes effectively use the water body

- by

- water body approach to prioritize waters for protection under section 131.12(a)(2).

Commenters stated that states and authorized tribes should have the flexibility to use CWA 303(d) lists (impaired waters lis ts) as part of the process of identifying waters that will and waters that will not receive Tier 2 protection. EPA agrees that 303(d) lists can provide useful information to help make such decisions. EPA ’ s view is that using data from 303(d) lists to identify for Tier 2 protection (or for exclusion from Tier 2 protection) can be consistent with the final rule, provided states and authorized tribes do not exclude waters from Tier 2 protection solely because water quality does not exceed levels necessary
to s upport all of the uses specified in section 101(a)(2) of the Act. As explained in the preamble to the final rule, “... when considering whether to exclude waters from Tier 2 protection, states and authorized tribes must consider the overall quality of the wat er rather than whether water quality is better than necessary for individual chemical, physical, and biological parameters to support all the uses specified in CWA section 101(a)(2). The rule provides for a decision

- making process where states and authoriz ed tribes consider water quality and reasons to protect water quality more broadly. This can lead to more robust evaluations of the water body , and potentially more waters receiving Tier 2 protection. To make a decision to exclude a water body from Tier 2 protection, states and authorized tribes must identify the factors considered which should include factors that are rooted in the goals of the CWA, including the chemical, physical, and biological characteristics of a water body

. Where states and authorized tribes wish to consider CWA section 303(d) listed impairments, it would be important that they also consider all other relevant available data and conduct an overall assessment of a water ’ s characteristics. It would also be important that states and auth orized tribes consider the public value of the water. This includesChapter 3 – Response Essays 7.d.i – Antideg HQ – Gen Supp

the water ’ s impact on public health and welfare, the existing aquatic and recreational uses, and the value of retaining ecosystem resilience against the effects of future stressors, including climate change. ”

Some commenters supported EPA ’ s proposal because even waters that may be listed on a 303(d) list as impaired for certain parameters would still be able to receive Tier 2 protection. They stated that this would be consistent with the intent of the CWA, since many water bodies impaired due to param e ters such as mercury and PCBs may otherwise be high quality and worthy of Tier 2 protection. EPA agrees that excluding a water body from Tier 2 protection because it did not attain only one o f the uses specified in section 101 (a) (2), would allow a potential categorical exclusion of most of the water bodies of the U.S., which would be inconsistent with the purpose of the antidegradation requirements

. For comments that “ disagree with the proposition that a state must consider as high quality a water that is specifically regulated as “ impaired ” by EPA ” and that “ States should be allowed to determine what level of review is appropriate for impaired waters ” , please see the responses elsewhere in t his essay and in response essay 7.b., section J for additional discussion.

EPA considered comments stating that specific states identify high quality waters on a water body

- by

water body basis such that all waters receive Tier 2 protection at a minimum. EP A supports this approach as it is consistent with the intent of the antidegradation requirements , and encourages states and authorized tribes to consider broad application of Tier 2 protection, particularly where data may be limited . A s discussed in EPA ’s preamble to the final rule, in instances where states and authorized tribes lack data and information on the water quality to make individual water body conclusions, EPA recommends that they provide all or a subset of their waters with Tier 2 protection, b y default. Doing so will increase the probability that these waters will maintain a level of resiliency to future stressors. EPA points out, however, that the federal rule does not require states and authorized tribes to provide Tier 2 protection to all wa ters.

A comment er requested clarity over whether EPA ’ s proposal intended to require states and authorized tribes to establish the antidegradation tier for each applicable CWA 101(a)(2) use. For example, could a state or authorized tribe classify a water body as Tier 1 for protection of recreation in and on the water, but Tier 2 for aquatic life protection ? The final rule requires that “... the State shall not exclude a water body from the protections described in (a)(2) of this section solely because water q uality does not exceed levels necessary to support all of the uses specified in section 101(a)(2) of the Act. ” For a discussion regarding a “ use

- by

- use ” approach, please see response essay 7.d.ii.

For a response to comments regarding state and authorized t ribal discretion on how to conduct Tier 2 reviews, please see response essay 7.d.iii.



### B. **Disagreement with Proposal and /or**  **S uggestions for**  **C hanges** 
A commenter stated that the proposed regulation could be interpreted to require a state that previously ident ified all waters for Tier 2 protection to remove Tier 2 protection from some of those waters. The comment suggested that the final regulation acknowledge that treating all waters as Tier 2 would meet the requirements of the regulation. EPA is not including a statement about this particular situation in the regulation because it was not a necessary clarification to make within the regulation. EPA agrees that treating all waters as Tier 2 would meet the requirements of the regulation as discussed in section A of this essay. Such an approach is also consistent with CWA section 510 and section 131.4

.Chapter 3 – Response Essays 7.d.i – Antideg HQ – Gen Supp

Commenters stated that the mandatory limitation on the water body

- by

- water body method (requiring that waters not be denied Tier 2 protect ion solely because not all of the uses specified in CWA 101(a)(2) are attained) is unnecessary and improperly intrudes on states ’ primacy in WQS. One commenter suggested that while not the best or most appropriate mechanism, EPA could “ disapprove the state ’s action under the auspices of reviewing the state ’ s standards submittal. ” EPA disagrees as EPA only has the authority to review and approve or disapprove new or revised WQS. EPA could not “ disapprove ” any submittal if there was a concern with whether or not a state provided Tier 2 protection at the time of authorizing a lowering of water quality

. Other c ommenters suggested that instead of promulgating a final rule addressing identification of waters for Tier 2 protection, EPA and third parties have the ab ility to address or challenge a permit that unnecessarily denies Tier 2 protection as part of the permit
process. Commenters suggested that this would be a better and more direct option than revising the WQS regulation because it respects state discretion in identifying waters for Tier 2 protection while also protecting against error at the point when those decisions are applied. While EPA agrees that it is possible for EPA to exercise its oversight authority over permits and for third parties to challenge permits, EPA disagrees that the best and most direct option for ensuring that Tier 2 is applied appropriately is through permit challenges. EPA may object to a permit if the water quality

- based effluent limit ( WQBEL ) does not derive from and comply with th e applicable WQS. If the applicable WQS does not provide specific guidelines for when a water will be provided Tier 2 protection versus not, it would be difficult for EPA to say that denying Tier 2 protection in a particular instance does not derive from a nd comply with the applicable WQS. Thus EPA ’ s regulation specifically provides the limitation in federal regulation and state and authorized tribal antidegradation requirements must be consistent with the federal regulation. In addition, EPA ’ s rule require s that states and authorized provide an opportunity for public involvement in each decision, when using a water body – by – water body approach. With such a requirement, the only opportunity for public involvement on state and authorized tribal decisions

a bout providing waters with Tier 2 protection would be in the public notice for a permitted or licensed activity that would lower water quality. This would deprive the public of the chance to influence the decision of whether to provide Tier 2 protection lo ng in advance of a potential activity. Finally, permit objections are an inefficient means for EPA to ensure that water quality is protected. EPA is providing antidegradation regulations that enhance the protection of high quality waters and promote consis tency in implementation with the intention of avoid ing individual permit objections (where possible) in order
to provide certainty to the dischargers and reduce the unnecessary loss of limited resources.

A comment requested that EPA amend the regulation to require that EPA ’ s proposed high quality waters identification be applied to all Tier 2 and Tier 2.5 waters. The comment stated that states and authorized tribes must use all relevant water quality data and information to conduct an overall holistic asses sment of the characteristics of Tier 2 and Tier 2.5 waters to determine whether a water body would receive Tier 2 or Tier 2.5 protection, and at a minimum must consider the factors EPA listed in the proposal to the preamble (e.g., existing aquatic uses, overall value and significance of the water body). The final rule requirement does not explicitly require states and authorized tribes to evaluate all relevant data and information to conduct a holistic assessment to determine whether a water body would re ceive Tier 2 protection. Rather, the final rule at section 131.12(a)(2)(i) requires that “ ...the State shall provide an opportunity for public involvement in any decisions about whether the protections described in (a)(2) of this section will be afforded to a water body, and the factors considered when making those decisions. ” EPA ’ s preamble, however, speaks to the importance of considering all other relevant data when conducting an overall assessment. When excluding waters from Tier 2 protection, the final r ule requires that states and authorized tribes not exclude a water from Tier 2 solely because water quality does not exceed levels necessary to support the CWA 101(a)(2) uses. As discussed in the preamble, since exclusion cannot be based on the single fact or of the water not supporting a 101(a)(2) use, EPA expectsChapter 3 – Response Essays 7.d.i – Antideg HQ – Gen Supp

the state or authorized tribe to do an overall assessment. EPA ’ s preamble specifically says “ ...when considering whether to exclude waters from Tier 2 protection, states and authorized tribes must

c onsider the overall quality of the water rather than whether water quality is better than necessary for individual chemical, physical, and biological parameters to support all the uses specified in CWA section 101(a)(2). The rule provides for a decision

- ma king process where states and authorized tribes consider water quality and reasons to protect water quality more broadly. This can lead to more robust evaluations of the water body , and potentially more waters receiving Tier 2 protection. To make a decisio n to exclude a water body from Tier 2 protection, states and authorized tribes must identify the factors considered which should include factors that are rooted in the goals of the CWA, including the chemical, physical, and biological characteristics of a water body

. Where states and authorized tribes wish to consider CWA section 303(d) listed impairments, it would be important that they also consider all other relevant available data and conduct an overall assessment of a water ’ s characteristics. It would also be important that states and authorized tribes consider the public value of the water. This includes the water ’ s impact on public health and welfare, the existing aquatic and recreational uses, and the value of retaining ecosystem resilience against the effects of future stressors, including climate change. For additional information on this overall assessment, see the preamble to the proposed rule at 78 FR 54527 (September 4, 2013). ” As for applying the federal requirements to Tier 2.5, the federal re gulation does not contain a “ Tier 2.5 ” requirement , though EPA recognizes that some states and authorized tribes use this concept to describe protection that is more protective than Tier 2 and less protective than Tier 3 for state and authorized tribal wat ers . EPA expects that states ’ and authorized tribes ’ requirements for Tier 2.5 be at least as protective as Tier 2 and thus be consistent with the requirements
at section 131.12(a)(2)

.

Commenters stated that states and authorized tribes should have discretion on which waters to identify

as Tier 2 waters . EPA agrees that states and authorized tribes have discretion to determine which waters to provide Tier 2 protection, however EPA disagrees that the agency does not have a formal ap proval or disapproval process

. As discussed in response essays 7.f.i and 7.f.ii and other response essays, EPA ’s authority to review and approve or disapprove under CWA section 303(c) along with the factors the agency considers when determining whether a s tate provision is a new or revised WQS is discussed in its 2012 frequently asked questions (FAQs) titled “ What is a New or Revised WQS under CWA section 303(c)(3) ” found at htt p://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm . Therefore,

w here a state or authorized tribe identifies waters for Tier 2 protection in their legally binding WQS (e.g., in their antidegradation policy or legally binding implementation methods ), EPA does have authority to take 303(c) action on those decisions (when they are new or revised) . However, the federal regulations do not require states and authorized tribes to adopt such decisions into their regulations

. The final rule requires that st ates ’ and authorized tribes ’ legally binding antidegradation policies be consistent with the final rule requirements for identifying waters for Tier 2 protection

. A comment requested that EPA consider amending paragraph (b)(1) and “ Water Quality Guidance f or the Great Lakes System ” to provide that high quality waters are identified on a designated use basis, rather than a parameter

- by

- parameter basis. EPA ’ s regulation allows the water body

- by

- water body approach because it can be implemented consistent with the intent of the CWA. EPA ’ s view is that the final rule allows flexibility for states and authorized tribes to consider specific suites of parameters
, provided they explain the factors considered to the public, and do not exclude waters from Tier 2 protection solely because not all of the CWA 101(a)(2) uses are met. For a discussion on a use

- by

- use approach, please see response essay 7.d.ii. The “ Water Quality Guidance for the Great Lakes System ” is outside the scope of this rulemaking because EPA di d not propose any revisions to Part 132 of the regulations

.Chapter 3 – Response Essays 7.d.i – Antideg HQ – Gen Supp

A comment stated that f or water

- rich states, using a parameter

- by

- parameter approach is problematic because in

- stream monitoring data may not be available for all parameters. If a parameter

- by

parameter approach is continued, the comment requested EPA provide clarification on ho w to make these determi nations absent in

- stream data. The final rule provides that states and authorized tribes may identify waters for Tier 2 protection on either a parameter

- by

- parameter or water body

- by

- water body basis. T he rule reaffirms EPA ’ s support for both approaches. Thus, where states do not have adequate data to use the parameter

- by

- parameter approach, states and authorized tribes have the discretion to use the water body

- by

- water body method where appropriate

. While the final rule does not addr ess questions of decision

- making when using the parameter

- by

- parameter approach in the absence of data, EPA will consider providing more information on this issue as the A gency develops additional antidegradation guidance subsequent to the final rule.



### C. C **omments r**  **egarding the**  **D ifference**  **b etween**  **“U ses**  **S pecified**  **in C lean**  **W ater**  **A ct**  **S ection**  **101(a)(2) ”**  **and “P**  **rotection and**  **P ropagation**  **of Fish, S**  **hellfish , and**  **W ildlife**  **and R**  **ecreation in and on the**  **W ater**  **”**

EPA received comment that said “ Also, the purpose of the anti

- degradation requirement is to protect those waters with a quality higher than necessary to ‘support propagation of fish, shellfish, and wildlife and recreation. ’ 40 C.F.R. §131.12(a)(2). In this regard, EPA suggests an alternative stating that ‘Tier 2 reviews are only required for parameters associated with 101(a)(2) [of the Clean Water Act] ’ – the paragraph that sets out Congress ’ ‘fishable and swimmable ’ goal .” The commenter stated that they supported the alternative. The commenter appears to be refe rring to the proposal preamble where EPA asked for comment about the following alternative: “ Alternatively, the EPA could specify that for waters identified as high quality on a water body

- by

- water body basis, Tier 2 reviews are only required for parameter s associated with the 101(a)(2) uses currently being supported. For example, in Water Body B above, [a hypothetical water body supporting CWA 101(a)(2) recreational uses but not aquatic life uses] a Tier 2 review would only be required for each parameter that is better than the applicable criteria to protect recreation. And, a Tier 2 review would not be required for any parameter only associated with the aquatic life use (i.e., and not also associated with the recreation use). ” 78 FR 54528, second column. E PA did not include the alternative described in the proposal preamble in the final rule. Although EPA considered this approach and the comments that supported the approach, EPA did not finalize this alternative for reasons explained in response essay 7.d.i ii ( “ Antidegradation High Quality Waters Tier 2 Review ” ) section A for more discussion.



### D. Comments **r egarding**  **D etermining**  **W hen**  **an A**  **ctivity “A**  **ccommodates I**  **mportant E**  **conomic or**  **S ocial**  **D evelopment**  **”**
For a response to these comments, please see response essay 7.e.ii, section J.Chapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp



## Essay 7. **d.ii – Antideg**  **radation and High Quality Waters: General**  **Opposition for Proposed Revision** 

**A. Support for**  **P rotection of**  **H igh**  **Q uality**  **W aters** 
The U.S. Environmental Protection Agency ( EPA ) received and agrees with comments supporting the protection of high quality waters. EPA agrees that protection of high quality waters is important , and discussed the reasons for this in the preamble to the proposed rule. Further, EPA agrees with comments pointing out that protecting high quality waters will help states and authorized tribes continue to strive towards the Clean Water Act ( CWA ) goals, and is be central to supporting both economic and community growth and sustainability.



### B. Opposition to **P rop**  **osal B**  **ecause I**  **t D**  **oes N**  **ot R**  **equire P**  **arameter -By**  **P arameter**  **, or I**  **s N**  **ot P**  **rotective E**  **nough**

C omments provided on specific water bodies as far as whether they should or should not be identified as high quality waters (i.e., receive Tier 2 protection ), and comments provided on specific states ’ and authorized tribes ’ approaches are outside the scope of this rulemaking. This is a national rulemaking and EPA is not finalizing (and did not propose) a rule that speaks to specific status of particular waters. States and a uthorized tribes have the responsibility and discretion to determine if waters receive Tier 2 protection as long as the state or authorized tribe is consistent with the regulations. EPA will work with states and authorized tribes to determine whether and w hat revisions are necessary for state and authorized tribal antidegradation programs to be consistent with the regulations after publication

. EPA disagrees with comments stating that the purpose of antidegradation is to provide the greatest protection for water quality possible, and that since the parameter

- by

- parameter method best achieves this, it should be required. The antidegradation provisions in the water quality standards ( WQS ) regulation are not intended to require the greatest protection possible for water quality. Title 40 of the Code of Federal Regulations CFR s ection 131.12(a)(1), or Tier 1, provides protection for existing uses for all waters. 40 CFR s ection 131.12(a)(2), or Tier 2, provides a decision

- making process for states and authorized t ribes to use when deciding whether to allow lowering of water quality (and how much to allow) up to the water qual i ty criteria levels adopted to protect the designated use. 40 CFR s ection 131.12(a)(3), or Tier 3, provides a mechanism for states and authorized tribes to identify waters for which they will not allow any degradation. 40 CFR s ection 131.12(a)(4) coordinates requirements for thermal discharges with the requirements of CWA 316. Antidegradation provides these four different types of protection, only one of which (Tier 3) provides the greatest protection possible by prohibiting any degradation for those waters. The final rule only changes requirements related to Tier 2, which is
not intended to prohibit degradation in those waters but rather to ensure that state and authorized tribal decisions on whether and how much l owering to allow first goes through a public decision making
process

. EPA agrees with comments that the parameter

- by

- parameter method provides protection for high quality water for individual parameters that are meeting WQS. C omments stat ed that t he purpose of antidegradation is to m aintain and protect the uses specified in CWA section 101(a)(2) and for that reason EPA m ust require the parameter

- by

- parameter approach in order to ensure that waters that are better than any given WQS will be protected for those standards and cleaned up for the other. EPAChapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

agrees that the purpose of antidegradation is to maintain and protect the 101(a)(2) uses. However, EPA disagrees that the Agency must require the parameter

- by

- parameter approach to fulfill the purposes of antidegradation. First, the WQS component s that are intended to provide for the protection and propagation of the uses sp ecified in CWA 101(a)(2) are designated uses ( section 131.10) and criteria to protect those uses ( section 131.11). The purpose of the antidegradation regulation is to maintain the chemical, physical, and biological integrity of the Nation ’ s waters (CWA sec tion 101(a)). EPA implements CWA section 101(a) and the antidegradation requirements to maintain existing uses, protect waters that exceed levels necessary to support the uses specified in CWA section 101(a)(2) and to protect Outstanding National Resource Waters (ONRW s). Doing so supports economic and community growth and sustainability and provides a margin of safety that will afford the water body increased resilience to potential future stressors (See EPA ’ s preamble to the final rule for further discussion)

. EPA does not agree that the parameter

- by

- parameter method must be required because it ensures water bodies that are impaired for other parameters will be cleaned up. Tier 2 antidegradation
, by definition
, can only provide protection for high w ater quality where it exists

. As stated in section 131.12(a)(2), high water quality exists where water quality exceeds levels necessary to support the uses specified in CWA section 101(a)(2) (i.e., protection and propagation of fish, shellfish, and wildlif e and recreation in and on the water). W here a water is impaired with respect to a particular parameter protecting a use specified in CWA 101(a)(2), no assimilative capacity is available for Tier 2 protection (i.e., the water quality does NOT exceed the levels necessary to support the uses specified in CWA 101(a)(2)) and thus a state or authorized tribe would not be required by section 131.12(a)(2) to conduct a Tier 2 review related to that parameter

. Total maximum daily loads ( TMDLs ) are a more appropriate tool to plan for improving water quality with respect to the particular parameter for which the water is impaired.

The water body

- by

- water body approach allows states and authorized tribes to prioritize their resources by focusing on waters that the state or authorized tribe determines are most in need of protection

. Commenters that support requiring the parameter

- by

- parameter method stated that their opposition to the water body

- by

- water body method was because it allows unnecessary degradation. The final rule allows states and authorized tribes to use the parameter

- by

- parameter method or to use the water body method with some specified limitations. The water body

- by

- water body method can be used consistently with the CWA, and the final rule provides limit ations on the method to provide a balance between providing an approach that may be more practical for states and authorized tribes and ensuring consistency with the CWA.

EPA agrees with commenters ’ statement that because some pollutants are pervasive and cause p roblems for meeting WQS in many waters, even waters that would otherwise be completely pristine might violate WQS for one or more parameters (e.g., mercury.) EPA agrees with commenters that a state or authorized tribe should not be allowed to apply lesser protections to what might otherwise be a high quality water simply because it exceeds a standard with respect to a single pervasive pollutant. The commenters stated that the proposal would allow states to claim that some waters are not of high quali ty based on impairment of only one parameter. EPA disagrees with this characterization and points out that it discusses this very issue on page 54527 of its proposal as EPA is explaining its rationale for the proposed limitation on the waterbody – by – wat erbody approach. The proposal and the final rule specifically prohibit excluding waters from Tier 2 protection “ solely because water quality does not exceed levels necessary to support all of the uses specified in section 101(a)(2) of the Act ” . In other

wo rds, if a water is impaired only for mercury, this would mean that the water quality does not exceedChapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

levels necessary to support an aquatic life 1 use because the aquatic life is not safe for human consumption. EPA ’ s final rule does not prohibit states and authorized tribes from using 303(d) listings to inform their high quality water decisions. However, s tates and authorized tribes using 303(d) impairments to inform exclusion of waters from Tier 2 protection must also point to at least one other factor roo ted in the goals of the CWA that supports the decision , and allow for public involvement before deciding to exclude a water from Tier 2 protection. Commenters stated that the water body

- by

water body approach would be the antithesis of the principles of th e CWA and antidegradation regulation, since waters will become more degraded rather than less. EPA disagrees. Neither the CWA nor the antidegradation regulation prohibit degradation of high quality waters unless the state or authorized tribe has decided to provide Tier 3 protection for a water body. The water body

- by

- water body method, when used consistently with the CWA and antidegradation regulation, provides protection to high water quality while allowing states and authorized tribes flexibility to manag e their resources to protect the higher priority waters first. Please see response essay 7.d.iii for discussion on conducting Tier 2 reviews once a water body is identified as high quality.

EPA agrees with comments stating that the parameter

- by

- parameter m ethod for identifying high quality
water s for Tier 2 protection provides more waters with Tier 2 protection than the water body

- by

- water body method. This is because the parameter

- by

- parameter approach provides Tier 2 protection for every parameter for which assimilative capacity (water quality better than the levels needed to support CWA 101(a)(2) uses) exist s, regardless of anything else. In other words, all waters that have at least one parameter with assimilative capacity, will be provided some level of Tier 2 protection.

EPA disagrees with comments stating that the word “ levels ” in 40 CFR. 131.12(a)(2) ( “ where the quality of the waters exceed levels necessary to support the protection and propagation of fish, shellfish, and wildlife and recreation in an d on the water, that quality shall be maintained and protected... ” ) mandates the parameter

- by

- parameter approach. “W here the quality of waters exceed levels ” can refer to water quality as viewed by looking at specific parameters exceeding levels
, or looking at suites or groups of parameters exceeding levels , or looking at the uses being protected and whether water quality is generally better than that necessary to meet the uses specified in CWA section 101(a)(2) . The provision can be interpreted mu ltiple ways and does not mandate a parameter

- by

- parameter approach per se

. On a related note, the final rule corrects a grammatical error so that the provision begins “W here the quality of the waters exceeds ,” to clarify that it is the quality of the water s that exceeds, not the waters that exceed.

1 Reference to “ aquatic life ” her e is for purposes of the example. EPA recognizes that some states associate protection of human health when consuming aquatic life to other CWA 101(a)(2) type uses, such as recreation in and on the water, or a separate fishing designated use. Any designated use protecting human health when consuming aquatic life is considered a use specified in section 101(a)(2).Chapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

EPA agrees with comments that the parameter

- by

- parameter method can be easier to implement because determining whether high water quality exists for which to provide Tier 2 protection is a function of the activit y that degrades water quality and the quality of the water in the water body, which can be identified on a case

- by

- case basis at the time additional degradation is proposed. EPA agrees with comments that the parameter

- by

- parameter method is a proven, accur ate, science

- based methodology. As commenters point out, for a state or authorized tribe to identify high water quality relative to what parameters would be degraded by a proposed activity using a water body

– by

– water body approach , the most accurate way wo uld be to do an individual ized evaluation of the water body with respect to the parameters that would be affected. EPA agrees with c ommenters that looking at Tier 2 protection in this manner can make it challenging to compile a list of waters to receive Ti er 2 protection in advance , since it would be hard to know what the “ high quality ” is that needs protecting before knowing the proposed activity. EPA agrees that this can be a concern with the water body

- by

water body approach. However EPA views that approach as an acceptable way to manage Tier 2 if a state or authorized tribe wants to use it and also points out an advantage of id entifying a list of waters eligible for Tier 2 review is that the information is easily publicly accessible and transparent.

Some c ommenters stated their preference for the parameter

- by

- parameter approach because it conforms to the dictates of the CWA to e liminate discharges and protect from pollution. EPA agrees that the parameter

- by

- parameter approach is consistent with the CWA. Commenters further stated that the parameter

- by

- parameter approach conforms to antidegradation regulations by ensuring that wate rs that are better than any given WQS will be protected for those standards and cleaned up for the others. EPA agrees that the approach conforms to the federal regulation at 131.12, but does not agree with this characterization. The parameter

- by

- parameter approach provides Tier 2 protection for high water quality above and beyond the levels necessary to support the uses specified in CWA 101(a)(2), not high water quality with respect to any designated uses a state or authorized tribe might adopt. (States and authorized tribes may adopt uses different from, and in addition to, those uses specified in CWA section 101(a)(2).) EPA agrees with the comment that allowing high water quality to degrade and then restoring it later can be more difficult and more expensi ve than protecting the high water quality to begin with, and can result in significant loss of aquatic benefits. EPA discusses this point in its preamble to the final rule.

Some c ommenters disagreed with EPA ’ s proposal to retain the water body

- by

- water bod y approach as less

- favored but still allowed, because even though EPA proposed more limits and structure to the water body

- by

- water body approach, the proposed limits and requirements are vague. They argued that this vague policy requirement for a “ holisti c assessment ” with a variety of factors that will result in confusio n and error by the states , and even litigation . EPA ’ s view is that the final rule and preamble provide enough structure that they will not result in confusion and error, and will consider providing additional guidance in the future. EPA found that it was reasonable and protective of overall water quality is to allow some level of flexibility in the considerations that go into determining how to protect water qual i ty. EPA determined that thi s flexibility is consistent with the CWA ’ s system of cooperative federalism and continues to provide states and authorized tribes with discretion to make water quality decisions. EPA ’ s rule is intended to allow that flexibility because it believes that it is possible to implement a water body

– by

– water body approach consistent with the CWA and regulations that effectively protects high water quality and is ready to work with states and authorized tribes to achieve this result.Chapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

Some c ommenters objected to the factors EPA discussed in the preamble to the proposal as factors that a state or authorized tribe could consider in an overall holistic assessment of waters for inclusion in or exclusion from Tier 2 protection, because the factors included “ the overall value and significance of the water body from an ecological and public

- use perspective. ” They said that this factor was vague and poorly worded, and likely to be cited as an excuse not to identify waters for Tier 2 protection by simply declaring any individu al water body as not very important to public use. EPA has reworded the discussion in the preamble to the final rule in order to be clearer . The preamble to the final rule explains that: “ ...when considering whether to exclude waters from Tier 2 protection, states and authorized tribes must consider the overall quality of the water rather than whether water quality is better than necessary for individual chemical, physical, and biological parameters to support all the uses specified in CWA section 101(a)(2). The rule provides for a decision

- making process where states and authorized tribes consider water quality and reasons to protect water quality more broadly. This can lead to more robust evaluations of the water body, and potentially more waters receiving T ier 2 protection. To make a decision to exclude a water body from Tier 2 protection, states and authorized tribes must identify the factors considered which should include factors that are rooted in the goals of the CWA, including the chemical, physical, and biological characteristics of a water body

. Where states and authorized tribes wish to consider CWA section 303(d) listed impairments, it would be important that they also consider all other relevant available data and conduct an overall assessment of a water ’ s characteristics. It would also be important that states and authorized tribes consider the public value of the water. This includes the water ’ s impact on public health and welfare, the existing aquatic and recreational uses, and the value of reta ining ecosystem resilience against the effects of future stressors, including climate change. ” EPA considered the commenters ’ concern that a state or authorized tribe could cite “ public value ” of the water as a reason for not providing Tier 2 protection, a nd thus the final rule requires public involvement on decisions regarding whether Tier 2 protection will or will not be provided.

Some c ommenters stated that the detail and amount of work inherent in applying the “ holistic ” factors necessary to use the wat er body

- by

- water body approach would require a level of vigilance by EPA (and citizens) that EPA has not demonstrated to date when monitoring state compliance with antidegradation requirements. EPA agrees that conducting a holistic assessment of a water bo dy may take more effort than the parameter

- by

- parameter approach . This is because identifying high water quality with the parameter

- by

- parameter approach is solely based on evaluating the ambient level of water quality in the water body with respect to the parameters that would actually be discharged, rather than evaluating multiple factors in a holistic assessment. However, looking at the water body holistically is consistent with the CWA goal of maintaining the chemical, physical AND biological integrity of the nation ’ s waters. EPA disagrees that because the waterbody by waterbody method may require more effort means that the approach should be prohibited and disagrees that more oversight is needed than EPA already provides. EPA ’ s role in monitoring compli ance and enforcement of activities subject to antidegradation requirements remains unchanged by this rulemaking

. This means it is still limited (e.g., when states or authorized tribes implement antidegradation requirements for activities that are not regulated) and discretionary (e.g., for antidegradation implementation in National Pollutant Discharge Elimination System [ NPDES ] permits). The purpose of this rulemaking is to enhance protection of high quality waters, provide more consistent implementation an d provide transparency to the public. The regulation will benefit states, the public, regulated entities, and EPA in its oversight role. With these revisions, the Agency ’ s intention is to prevent unnecessary litigation.Chapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

Some c omments stated that if EPA declines to prohibit the water body

- by

- water body approach as requested, EPA should at least significantly revise the proposal to provide much clearer standards as to when a state can categorically eliminate a waterbody from Tier 2 protection. Acco rding to the commenters, EPA should make clear that states must not exclude from high quality water protection any water body that is attaining all of the uses specified in CWA section 101(a)(2)

. EPA agrees with comments that the issue of which waters must be provided Tier 2 protection needs clarification and is clarifying here that under section 131.12(a)(2) (a provision that has existed since 1983 and reflects EPA ’ s longstanding policy) regardless of whether a state or authorized tribe uses the water body

- by

- water body approach or parameter

- by

- parameter approach to identify waters for Tier 2 protection, any water body that is attaining all of the uses specified in CWA section 101(a)(2) must receive Tier 2 protection. The preamble to the final rule states t his clearly: “ Where water quality is better than necessary to support all of the uses specified in CWA section 101(a)(2), § 131.12(a)(2) requires states and authorized tribes to provide Tier 2 protection. ” The comments also say that EPA must clarify that s tates must protect every water body as to all parameters relating to the 101(a)(2) uses the water is attaining. EPA ’s response is in essay 7.d.iii.

Some c omments stated that the parameter

- by

- parameter approach should be adopted by the EPA as the only approach compatible with the goals of the CWA. These c ommenters stated that the water body

- by

- water body approach is not consistent with the CWA goal because allowing new pollution that has not been shown to be necessary or allowing a water impaired by one poll utant to be contaminated by other pollutants is not consistent with the goal of maintaining and restoring the Nation ’ s waters

. EPA agrees in principle with the phrase “ one does not...restore waters impaired by one pollutant by allowing them to be contaminated by other pollutants ”. However, a s discussed earlier , Tier 2 protection is intended to protect water qual i ty that exceeds levels necessary to support the uses specified in CWA section 101(a)(2). Even if a state or authorized tribe declines to provide Tier 2 protection for parameters for which a water has assimilative capacity in a water that is 303(d) listed as impaired for other parameters, it must still protect for the designated uses and criteria. Declining to provide Tier 2 protection for any reason does not remove the responsibility of the state or authorized tribe to manage their water quality program to achieve the adopted designated uses and criteria. T he final rule ’s recognition that a water body

– by

– water body approach is acceptable is intended to facilitate achievement of the CWA goals of restoration and maintenance of water quality and still maintain the principles of cooperative federalism enshrined in the Act and in the WQS regulation as EPA ’ s provision allows a state or authorized tribe to dete rmine the best approach for themselves that still meets the CWA objectives . The final rule also maintains states ’ and authorized tribes ’ discretion to make decisions about when they will allow lowering of high water quality. Therefore, EPA found that it is reasonable to continue to allow the use of the water body

- by

- water body approach.

Some c ommenters pointed out that EPA has mandated the parameter

- by

- parameter approach for waters covered by the Great Lakes Initiative (GLI) , a fact which EPA does not dispu te. Please see response essay 7.k. for additional discussion on the antidegradation requirements in the 40 CFR Pa rt 132.

Some c ommenters provided hypothetical examples of water bodies with different designated uses to illustrate points about how the water body

– by

– water body approach has been used in the past. In an extreme example, the commenter said that a state might decide that Tier 2 applies only to waters containing federally listed endangered species, and that it only performs Tier 2 analyses for ammo nia. In this case, the commenter said that a water identified for Tier 2 protection would not receive Tier 2 review unless a discharge with new loading of ammonia would be allowed, while it would not receiveChapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

Tie r 2 review for any other lowering of water qu ality. This hypothetical narr ow interpretation of Tier 2 would not be consistent with the requirements of the final rule. First, Tier 2 protection must be provided to waters that support all of the uses specified in CWA 101(a)(2); in the hypothetical examp le, a water could be excluded from Tier 2 even if all those uses were supported because it does not support federally listed endangered species. Second, limiting Tier 2 protection to only one parameter would not be consistent with the federal requirement a t 131.12(a)(2) that “ [w]here the quality of the waters exceeds levels necessary to support the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless ...” Please se e response essay 7.d.iii for additional discussion on conducting Tier 2 reviews after a water body has been identified for Tier 2 protection

. In another example, commenters described an approach that EPA agrees has been commonly used: using the state ’ s or authorized tribe ’ s 303(d) list to identify waters that will not receive Tier 2 protection because they are impaired for one or more parameters according to the list. EPA agrees that this approach is problematic, because waters may be 303(d) listed due to impairments of non

- 101(a)(2) uses while waters that are not supporting the uses specified in CWA section 101(a)(2) may not be 303(d) listed because the uses reflect subcategories of the uses specified in CWA section 101(a)(2) instead . EPA agrees that a furt her problem with using the 303(d) list as the sole basis for deciding whether waters receive Tier 2 protection is that a state or authorized tribe might identify waters as not receiving Tier 2 protection for the sole reason that one of the 101(a)(2) uses i s impaired due to a single (or a small group of) pollutants (e.g., mercury) while the waters are still very high quality with respect to other parameters and other uses. Commenters provided a specific example of a state water that was impaired by mercury

a nd not classified by the state for Tier 2 protection, while the state ’ s tourist brochures promoted the lake as one of the best fisheries and recreational areas in the country. While EPA does not comment on the specifics of the water body in the example , an d does view decisions about Tier 2 protection as ultimately up to states and authorized tribes, the final rule requires a more holistic examination of a
water ’ s worthiness for Tier 2 protection and transparency for the public than just whether it is 303(d) listings . High water quality is a public good, and the public must be informed about decisions such as a decision to not provide Tier 2 protection to a water that is a major tourism and recreational resource. EPA ’ s final rule makes clear that the approach described would not be consistent with the CWA or the regulations if the decision was made after the effective date of today ’ s rule and that states and authorized tribes must involve the public when deciding which waters receive Tier 2 protection versus

n ot when impleme nting a water body

– by

- water body approach.

Some c ommenters objected to the proposed rule ’ s limitation to the water body

- by

- water body approach because it only explicitly prohibited one method for excluding waters from Tier 2 protection witho ut providing direction or requirements for how the water body approach should be applied. Similar to the proposed rule, the final rule provides a prohibition on one specific way of using the water body approach that is of specific concern to EPA . As explai ned in the final preamble, this was intended to preserve state and authorized tribal flexibility while prohibiting the most commonly expressed concern with the water body

– by

– water body approach. The final rule prohibits states and authorized tribes from ex cluding waters from Tier 2 protection solely because “ water quality does not exceed levels necessary to support all of the uses specified in section 101(a)(2) of the Act .” This means th at a state or authorized tribe generally could not exclude a water from Tier 2 protection based on the impairment of one parameter unless that parameter affected all the uses specified in CWA section 101(a)(2). This resolves the concern that many commenters expressed that a state or authorized tribe could exclude a water from Tier 2 protection just because it is impaired for mercury when it is otherwise pristine. The preamble to the final rule explains that if a state or authorized tribe is going to use 303(d) listing s as partChapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

of its decision

- making process
, they mu st also consider other factors rooted in the CWA (e.g., value of the water for recreation). Arbitrary factors such as the name of the water body would not be factors consistent with the Act. The preamble to the final rule articulates more information on EP A’s expectations. Commenters also expressed concern that the rule would allow states and authorized tribes to continue to follow divergent standards for identifying high quality waters. EPA ’ s regulations are not intended to provide a one size fits all solu tion. As long as states and authorized tribes implement the water body

- by

- water body approach consistent with the final rule, states and authorized tribes and their antidegradation implementation methods will be consistent with the CWA. It is acceptable an d expected that even within the bounds of the Act and the regulations, there will be some variability in how states and authorized tribes implement antidegradation requirements as there is variability in state and authorized tribal waters, stressors, processes and administrative requirements , but consistency with the CWA is required

. EPA confirms that commenters are correct in concluding that EPA ’ s intent in the proposal was to articulate that states and authorized tribes must apply Tier 2 protection to at least the waters that meet all of the uses specified in CWA 101(a)(2). Commenters stated that EPA ’ s intention was also that states and authorized tribes must
, in addition
, provide Tier 2 protection to at least some waters that do not meet all these uses (e.g., a water that supports aquatic life uses but does not support recreation uses.) EPA agrees that this was the intention of the proposal. The final rule does not explicitly require that Tier 2 protection must be provided to all of those waters, but is clear that while states and authorized tribes have discretion any such decision must be made consistent with the final rule at 131.12. Commenters stated that even interpreting the rule in this manner, guidance is inadequate to direct further action. EPA has provided initial guidance in the preamble to the final rule, and will consider providing additional guidance in the future.

EPA disagrees that to solve the problem of states and authorized tribes not adequately implementing Tier 2, EPA should require use o f the parameter

- by

- parameter approach, just the way the parameter

- by

parameter approach is used to identify waters that are impaired for 303(d) lists. Commenters said that it is does not make sense to create one set of approaches and assumptions for one purpose and an entirely different set of approaches and assumptions for the other side of the regulatory program. EPA disagrees with this characterization. For one, although 303(d) lists are generally based on chemical parameters (e.g., a water is listed as impaired with respect to methylmercury), this is not universally the case. Waters can be listed for reasons that are not parameters, for example “ aquatic life, ” or “ unknown

cause. ” Secondly, while EPA agrees that the parameter

- by

- parameter approach is consistent with the CWA and an appropriate way to identify waters for Tier 2 protection, the water body

- by

- water body approach as required by the final rule, will also be consistent wi th the CWA as detailed in this essay, the final rule preamble, and throughout the comment response document

. Finally, each regulatory program serves a different function in implementing the CWA. As such, it is reasonable that there may be different approac hes and assumptions to implement each program.

EPA did not propose a definition of the term “ lowering ” in the context of Tier 2 review , thus such
comments requesting a definition of the term are outside the scope of this rulemaking. EPA will consider provi ding future guidance on this term in the future.

Commenters pointed to a specific example of a state that does not conform to the description of how states and authorized tribes “ typically ” identify waters on a water body

- by

- water body basis in EPA ’s proposal preamble, challenging EPA ’ s assumptions about inherent protections in the water body

- by

water body approach. Commenters gave the example of a state that does not identify high qualityChapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

waters in advance of a proposed lowering of water quality, and that does not weigh a variety of factors to classify a water ’ s “ overall quality. ” EPA ’ s proposal was intended to articulate “ typical ” approaches for purposes of introducing the water body

– by

– waterbody approach and not to imply a judgement on atypical appro aches. To the extent to which such atypical approaches are consistent with the requirements in the final rule, no changes would be needed following publication of the final rule. EPA will work with states and authorized tribes after the rule is published t o determine whether and what revisions are necessary to state/authorized tribal antidegradation programs in order to be consistent with the revised regulations.

Commenters objected to EPA ’ s use of the word “ may ” in the following statement in the preamble t o the proposal: “... it is currently possible for high quality waters to be identified on a water body

- by

- water body basis in a manner that the EPA believes may be contrary to the intent of the antidegradation provisions. In some cases, states or authorized t ribes have implemented antidegradation such that, where a water body is listed on the CWA section 303(d) list based on one or more parameters affecting only one of the CWA 101(a)(2) uses, the state or authorized tribe automatically considers the water no longer high quality. ” EPA agrees that the word “ may ” there indicated equivocation, when EPA ’ s view is that such a use of the water body

- by

- water body approach in fact would be contrary to the intent of the antidegradation provisions. EPA ’ s final rule makes clear that the use of the water body

– by

– water body approach in this manner is not consistent with the Act and thus prohibited by the regulations.

Commenters objected to EPA ’ s proposal to not require states and authorized tribes to adopt their implementati on methods as legally binding, while EPA claimed that the proposal would advance water quality protection. Commenters said that the two positions are inconsistent because the proposal would place a specific state ’ s Tier 2 approach (which they asserted to b e “ contrary ” to the intent of the antidegradation regulation) outside the realm of EPA authority to reject it. While the proposal placed the requirements for the water body

- by

- water body approach in the section about implementation methods (which can be binding or non

- binding,) the final rule requirements for the water body

- by

- water body approach are now in section 131.12(a)

. S tates ’ and authorized tribes ’ legally binding antidegradation requirements must be consistent with the new requirements for identifi cation of waters for Tier 2 protection and are subject to EPA review and approval or disapproval

. For more information, please see response essay 7.g.iii, section J.

Commenters were concerned that EPA ’ s proposal to allow identification of waters for Tier 2 protection on a water body

- by

- water body basis with some limitations would be too complicated, leading to states and authorized tribes wasting time and resources in unnecessary decision

- making and considering holistic water quality of all of their waters, when they already face limited resources. EPA recognizes that states and authorized tribes have hard choices to make with regard to managing resources. The final rule provides discretion to states and authorized tribes so that if they choose to use a wate r body

by

- water body approach in order to manage their resources, they will do so consistent with the CWA and the WQS regulation. Using a water body

- by

- water body approach is not necessarily onerous, as states and authorized tribes can choose to identify w aters as Tier 2 by default (which some states have done in the past.) If a state or authorized tribe finds that the water body

- by

- water body approach is indeed too onerous, they can choose a parameter

- by

- parameter approach.

Commenters questioned whether EPA has the resources to oversee this process, specifically oversee the reasons that states and authorized tribes will use to avoid being deemed as having “ solely ” excluded waters from Tier 2 protection contrary to the rule. WQS are not independently enforce able, but areChapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

enforced through implementing programs such as NPDES permits. EPA ’ s resources for oversight of implementing programs as such comments are outside the scope of this rule making

. 

### C. Opposition to **P roposal**  **B ecause**  **I t**  **I s**  **T oo**  **P rescriptive** 

Some c ommenters pointed to a resolution of the Environmental Council of the States that EPA should minimize the use of interim guidance and draft policy and requiring Regional Administrators to require compliance with such policies. Comments regarding past practice of EPA Regional Administrators are out of scope of this rulemaking. The changes to the regulations will provide a new framework for future practices. Commenters said that the ECOS resolution did not merit EPA codifying former guidance as regulatory req uirements. EPA disagrees. One way to reduce the use of guidance in making decisions, as the ECOS resolution requested, is to create regulatory provisions, which is what EPA has done in the final rule. EPA does not claim that the ECOS resolution provided au thority for EPA to propose revisions to the WQS regulation. EPA discusse s its authority to promulgate revisions in the preamble to the proposal and the final rule and in the response to comments document

.

Some c ommenters said that guidance should be recomm endations from EPA, rather than an exertion of

“ one size fits all ” authority over state and authorized tribal programs operating under unique, localized conditions. EPA agrees that guidance and policy are recommendations to states and authorized tribes and do not pose binding, “ one size fits all ” requirements. Federal rules, like the final rule, however, contain binding requirements nationwide . Commenters preferred EPA should leave states flexibility intended under the Act to identify high quality waters as appropriate for their local conditions. The final rule provides a binding framework of requirements to ensure that antidegradation programs are implemented consistent with the Act . However, rather than creating a “ one size fits all ” antidegradation
progra m EPA leaves considerable discretion to states and authorized tribes to tailor their programs to local conditions

. This is because states and authorized tribes have the relevant expertise to adapt their programs to most appropriately protect waters with si te

- specific conditions and to most efficiently operate under their own regulatory and management structures

. EPA disagrees with the characterization made by commenters that the proposal would prohibit a water body from being excluded from Tier 2 protection because not all uses are attained. The final rule is clear that states and authorized tribes are prohibited from excluding a water from Tier 2 protection solely because water quality does not exceed levels necessary to support all of the uses specified in section 101(a)(2) of the Act

. S tates and authorized tribes may use 303(d) listings as one of the factor s in their consideration , but not the only factor

. See the discussion in the preamble and elsewhere in the comment response document for additional factors states and authorized tribes should consider.

Comments stated that EPA ’ s proposed limitation on the water body

- by

- water body approach (that
waters not be excluded solely because not all of the uses specified in CWA 101(a)(2) are attained) implies that EPA would evaluate and review high quality waters on a parameter

- by

- parameter basis regardless of the State ’ s determination and identif ication of high qua lity waters. EPA does not and will
not “ evaluate and review high quality waters on a parameter

- by

- parameter basis ” as the commenters
say, because states and authorized tribes (not EPA) have the authority to evaluate and review high quality waters via Tier 2 reviews. While EPA has authority under CWA 303(c) to review legally binding antidegradation requirements, and in some cases those include a state ’ s or authorized tribe ’ s list of waters identified for Tier 2 protection (or identified as not receiving Tier 2 protection)
, EPA does not evaluate and review the state ’ s or authorized tribe ’ s WQS submission on a parameter

- by

- parameter basis. EPA ’ s basis for review and action would be based on whether the submission is consistent withChapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

the federal regulation, which specifically allows for use of a water body

- by

- water body approach with some restrictions.

Some c ommenters said that EPA ’ s proposal contradicts itself by saying that high quality waters may be identified on a parameter

- by

- parameter basis or a water body -by- water body basis at the state ’ s discretion, but then places a restriction on use of the water body

- by

- water body method. The final rule does not contain the phrase “ at the state ’ s discretion .” The phrase “ at the state ’ s discretion ” in the proposal referred to the state ’ s decision to use the parameter

- by

- parameter or water body approach, and was not intended to mean that the state had complete discretion in how it used the method chose. States and authorized tribes do have the discre tion to choose to identify high quality waters on a parameter

- by

- parameter basis or on a water body

– by

– water body basis. However, if choosing a water body

– by

– water body basis, it can only be implemented consistently with the CWA with a restriction in regul ation. Thus how a state or authorized tribe uses the water body

– by

– water body approach is not completely at the discretion of the states and authorized tribes. The final rule ’s wording is intended to prevent confusion.

EPA disagrees with commenters stating that the restriction on the water body

- by

- water body approach regarding all uses not being attained supersedes the states ’ and authorized tribes ’ option to identify waters for Tier 2 protection using a holistic approach, rendering the entire water body

- by

- water body approach as a moot option. As discussed in the preamble to the final rule, the final rule allows identification of waters for Tier 2 protection using a holistic approach by only prohibiting an approach that would exclude waters from Tier 2 prot ection solely because water quality does not exceed levels necessary to support all of the uses specified in CWA section 101(a)(2)

. EPA disagrees with commenters stating that the rule will effectively eliminate the waterbody

- by

waterbody option and effectively mandate that s tates and authorized tribes adopt a parameter

- by

parameter approach

. EPA also disagrees with commenters who said that the proposal indicated that EPA was attempting to force states and authorized tribes to use the parameter

- by

- par ameter approach. EPA does not intend to force states and authorized tribes to use only the parameter

- by

- parameter approach . EPA did not finalize a rule requiring that approach. The final rule explicitly allows for use of the water body

- by

- water body approa ch and the restriction in the rule on the use of the water body

- by

water body approach is intended to ensure that such an approach is implemented consistent with the CWA and to provide regulatory language that states and authorized tribes can use to guide their state actions.

. The preamble to the final rule describes how states and authorized tribes can use a waterbody

- by

- waterbody approach in a manner consistent with the CWA but this manner is not equivalent to the parameter

- by

- parameter approach. Using a water body

– by

– water body approach consistent with the final rule still allows states to look at the overall water quality. In addition, this manner still leaves open the possibility for a state to determine that a water body is not deserving of Tier 2 pro tection even if certain parameters have assimilative capacity. Some commenters stated that imposing new obligations on states and authorized tribes using a water body

- by

- water body approach creates a new administrative preference to switch to a parameter -by- parameter approach. EPA does not have information to support agreement or disagreement with this position, and views this as something that would vary among states and authorized tribes. EPA ’ s rule is intended to provide states and authorized tribes choi ces in how to identify high quality waters consistent with the CWA and today ’s rule successfully provides those choices.Chapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

Commenters objected to restrictions proposed for the water body

- by

- water body approach, saying such restrictions are unnecessary, an un due intrusion on state and authorized tribal primacy for implementation, and will prevent the flexibility to implement efficiently and beneficially. They stated that EPA should specify that states and authorized tribes have discretion, per the Agency ’ s cur rent policy, to use whatever mechanism they choose to identify high quality waters on a water body

- by

water body basis. EPA disagrees. EPA described the reasons for adding restrictions to the water body

- by

water body approach in the preamble to the proposa l. The final rule allows states and authorized tribes to use the parameter

- by

- parameter method or to use the water body method with some specified limitations so that it will be used consistently with the CWA. The final rule ’ s recognition that a water body

– by

– water body approach is acceptable is intended to facilitate achievement of the CWA goals of restoration and maintenance of water quality and still maintain the principles of cooperative federalism enshrined in the Act and in the WQS regulation as EPA ’s provision allows a state or authorized tribe to determine the best approach for themselves that still meets the CWA objectives. It does not intrude on state or authorized tribal primacy, as it still offers broad discretion in implementation, which will al low for efficient and beneficial implementation.

Commenters stated that the proposed changes would increase the burden of states and authorized tribes to do Tier 2 reviews on waters that have impairments, would negate any resource advantage of the water body approach, would increase permit renewal costs, and would tax states ’ and authorized tribes ’ limited resources. EPA ’ s economic analysis (EA) takes into account any increase in cost or burden of this rule. For additional discussion on the EA of this rul e, see essay 12.b.

Commenters suggested that the final rule text specify that the water body

- by

- water body approach may be used at the state ’ s discretion, taking into consideration appropriate chemical, biological, and physical characteristics. EPA agrees in principle that states and authorized tribes should consider chemical, biological and physical characteristics of a water body when determining whether to provide Tier 2 protection. However, EPA ’ s view is that this wording would not provide any more limi tation to the water body

- by

- water body method than there has been in the past. The word “ appropriate ” would be subjective, and a state or authorized tribe could argue anything as an “ appropriate ” consideration

. Therefore, EPA ’ s final rule provides this same flexibility but clearly prohibits implementation of the water body

– by

– water body method that is contrary to the CWA and EPA regulations.

Commenters provided state

- specific examples of states that use the water body

- by

- water body approach, stating that th e approach has been approved by EPA, is defensible
, has been an effective regulatory tool for years, and that new restrictions on the approach would be unnecessary and inappropriate. Commenters stated that the states ’ successful antidegradation programs take a holistic view of water quality conditions in determining which water bodies are considered truly “ high quality ” to be protected by Tier 2. While state antidegradation policies and implementation methods may have been in compliance with the previous federal regulations, EPA has found that today ’ s final rule is reasonable and necessary to provide consistency and transparency. The final rule still requires a holistic approach to identifying high quality waters and still allows for the states and authorized tribes to determine which waters that will and which waters will not be provided Tier 2 protection. State and authorized tribal programs that use a robust, holistic approach and ensure that their decisions are subject to public involvement would be consistent with the final rule.

EPA disagrees with commenters stating that EPA “ seems to assert that States are not implementing antidegradation. ” The preamble to the proposal stated that “ ...EPA indicated in its 1998 ANPRM that ‘ on a national scale, antidegradation is not being used as effectively as it could be, ’ a concern that continuesChapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

today and is echoed by stakeholders who have identified antidegradation as an underused component of water quality protection. ” EPA ’s statements express that antidegradation is underutilized, not that it is not being implemented. EPA recognizes that antidegradation implementation varies throughout the country, and it is likely that some jurisdictions implement more thoroughly than othe rs. Commenters further stated that in a specific state, the requirements of Tier 2 are so onerous that they are avoided, and that permits retain old effluent limits rather than risk increasing loading and incurring the Tier 2 review process. EPA understand s that avoiding Tier 2 review by prohibiting discharges that degrade high water quality is one tactic that can be used to manage resources and still protect high water quality

. However, Tier 2 review need not be onerous so as to avoid proper and efficient management of high water quality. For example, EPA describes in the preamble to the final rule that alternatives analysis should document a level of detail that reflects the significance and magnitude of the particular circumstances encountered. A proposed degradation that is less significant could have a less onerous analysis than one that would degrade more. Furthermore, although conducting Tier 2 review requires some state and authorized tribal resources, as many commenters point out, components of a Tie r 2 review (particularly the analysis of alternatives) are commonly conducted by dischargers seeking authorization. Finally, even though resources are expended in conducting Tier 2 reviews, implementing an antidegradation program to prevent the degradation of a water body may be more cost

- effective and efficient than long

- term restoration efforts. In addition, maintaining a water body in its initial high quality condition helps ensure the preservation of unique attributes that may ultimately be impossible
t o fully restore in a number of situations. EPA disagrees with comments stating that while the cost of permitting increases when antidegradation

- based effluent limits must be calculated, nothing is accomplished by doing so, and antidegradation is a misalloc ation of resources. For the reasons cited in this paragraph and in the preambles to the proposed rule and the final rule, avoiding any unnecessary degradation of water quality is a valuable allocation of resources and not a misallocation of resources. Effl uent limits that reflect Tier 2 protection often protect more high water quality than would have been protected otherwise. This outcome supports CWA goals and protects a valuable public and community

resource and thus cannot be characterized as accomplishi ng nothing.

Some c ommenters stated that restrictions on the states and authorized tribes in terms of the water body

- by

- water body approach would reflect the current practices of the states

. Commenters stated that many states would not consider waters ineligible for Tier 2 protection if recreational criteria are exceeded while aquatic life resources were unimpaired, or if impairments for mercury, PCBs, or other legacy pollutants led to a ban on human consumption while the viability of the wildlife itself was unimpaired. EPA agrees that considering waters eligible for Tier 2 protection if they are meeting some uses specified in CWA 101(a)(2) but not others is consistent with the final rule.

Commenters recommended that EPA change the regulatory text to read: “m ust not exclude any water body from high quality water protection solely because not all of the individual elements of the uses specified in CWA section 101(a)(2) are attained, ” because “ uses specified in CWA 101(a)(2) ” is general and does not distinguish between uses involving human consumption, predator consumption, sport fishing or other harvesting, and the natural viability of wildlife for its own purposes. EPA disagrees with this recommendation, and did not finalize such text. Such text appears to be intended to reflect the variations in how states and authorized tribes articulate their own designated uses. Some states and authorized tribes, for example, protect the “ fish ” component of CWA section 101(a)(2) by adopti ng multiple and distinct uses such as cold water aquatic life use, warm water aquatic life use, salmon fishery, trout waters, etc. EPA chose to articulate the requirement using the words of the CWA because regardless of how states and authorized tribes ado pt their own WQS, the uses specified in CWA section 101(a)(2) are a universal goal and is thus a universal baseline for determining when water qualityChapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

exceeds levels necessary to support those uses. In addition, the suggested text would imply that although a water could not be excluded from Tier 2 protection solely because not all of the individual elements of the uses specified in CWA 101(a)(2) are attained, the water could still potentially be excluded solely because one of the CWA 101(a)(2) uses more gen erally is not attained. This was not EPA ’ s intention, as explained in the preambles to the proposed and final rules.

Commenters provided feedback on the examples EPA had provided in the preamble to the proposal, stating that even if an aquatic life use is not fully supported, there could be legitimate concern for negative synergistic effects of different pollutants that have individual, applicable criteria. EPA agrees, and this is one reason that the final rule requires states and authorized tribes to consi der more than one factor (specifically more than just whether the water is impaired for one or more 101(a)(2) uses) when deciding whether to provide Tier 2 protection to waters that are not supporting all of the CWA 101(a)(2)

uses . Synergistic effects may be a reason to provide the water with Tier 2 protection . The commenters stated that in allowing an increased and/or new discharge of these pollutants without Tier 2 review, states and authorized tribes could also require whole effluent toxicity (WET) testi ng and where appropriate, in

- stream biological sampling. It is true that permitting authorities have discretion to require monitoring, testing, and other conditions in association with a permit issuance or renewal. How permitting authorities choose to writ e NPDES permits is outside the scope of the WQS regulation.

EPA agrees with comments that the incorporation of the 303(d) list into the States ’ decision

- making about which waters to provide Tier 2 protection is within the States ’ and authorized tribes ’ aut hority. The final rule allows for this, provided the fact that a water is 303(d) listed and therefore is not supporting all of the uses specified in CWA 101(a)(2) is not the sole justification for excluding a water from Tier 2 protection

. EPA disagrees wit h comments that water bodies that are 303(d) listed as impaired would not be appropriately labeled as high quality waters, so those waters should not be provided Tier 2 protection. EPA ’ s view is that w aters that are listed on a 303(d) list as impaired for one or some parameters should still be able to receive Tier 2 protection for parameters for which they have high water quality. This would be consistent with the intent of the CWA, since many water bodies impaired due to parameters such as mercury and PCBs may otherwise be high quality and worthy of Tier 2 protection. Commenters stated that providing Tier 2 to such waters is not consistent with some states ’ and authorized tribes ’ previous practice and would inappropriately divert limited state and authorized tribal resources away from protecting waters that are “ truly high quality. ” Under the final rule, states and authorized tribes still have the flexibility to be able to exclude such waters from Tier 2 on a water body

- by

- water body basis as a way of managing their limited resources, provided they do so consistent with the final rule. EPA ’ s regulations are intended to strengthen the antidegradation program and is not obligated to establish regulations consistent with existing state/authorized tribal practice

. EPA developed these regulations based on its past experience with state/authorized tribal antidegradation programs and input from a wide spectrum of stakeholders. Some c ommenters stated that not providing impaired waters with Tier 2 protection would be c onsistent with the overarching purposes of the CWA while maintaining state and authorized tribal flexibility in developing antidegradation policies to address site

specific considerations. EPA agrees that as long as impaired waters are excluded from Tier 2 protection only after a holistic evaluation that identifies another rationale to support the decision and a public process, such decisions will be consistent with the overarching purposes of the CWA. However, EPA continues to disagree that denying a water impaired from one parameter a tier 2 review for other parameters for no other reason is consistent with the CWA.Chapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

EPA disagrees with comment s stating that CWA 303(d)(4)(B) hints that the consideration of antidegradation applies to waters whose quality exce eds that necessary to support their designated uses and thus the converse would be Tier 2 considerations are prohibited for waters whose quality is cause for listing as unattained

. The final rule requires Tier 2 protection where water qual i ty exceeds the l evels necessary to support all of the uses specified in CWA 101(a)(2), but that in any other case, states and au thorized tribes have choices about whether to provide Tier 2 protection or not. EPA disagrees that the text of CWA 303(d)(4)(B) means that antid egradation applies only to waters whose water quality exceeds that necessary to support all of the designated uses

. EPA ’ s statutory authority for the final regulation at section 131.12(a)(i) is outlined in this final rule preamble, proposal preamble, and

e lsewhere in this comment response document. EPA ’ s authority for this rulemaking is found at Section s 303, 101 and 501 of the Act. Under this authority, EPA promulgated Section 131.12(a)(2) in 1983 (which retained, with some changes, the antidegradation pol icy regulations of 40 CFR 130.17(e) which were promulgated in 1975). Today ’ s rulemaking is established under these authorities. EPA is promulgating necessary regulations to carry out the functions under the Act. Section 131.12(a)(i) is consistent with the Act and longstanding EPA policy. Consistent with Section 101(a)(2), 303, and 501, the rule makes clear that Tier 2 applies to water quality better than necessary to support CWA 101(a)(2) uses, not simply whatever uses are designated for the waters.

EPA disagrees with comments stating t hat the proposal implied that there must be a second layer of assessment for waters that may not meet a specific use and subsequently are listed on the state ’s 303(d) list, yet may have a quality of water that exceeds the level necessary to support other uses. Commenters stated that this additional review is not necessary and that states and authorized tribes are already spending a lot of time assessing waters for 303(d) lists. The final rule does not require a second layer of assessment , but the rule does allow for a second layer, depending on the state ’ s choice of water body

- by

- water body approach or parameter

- by

- parameter approach and state processes. It is true that where states and authorized tribes identify waters for T ier 2 protection on a water body

- by

- water body basis, if they are going to exclude waters from Tier 2 protection, they must do a holistic assessment to determine which waters will and will not receive Tier 2 protection. In other words, if states and author ized tribes wish to use a water body

– by

– water body approach rather than a parameter – by – parameter approach, then it stands that the state or authorized tribe must make high quality water decisions on the basis of an overall assessment of the water body and not solely based on individual 303(d) listings. However, a water body

– by

– water body approach is not the only way to identify waters for Tier 2 protection States and authorized tribes can identify all of their waters for Tier 2 protection without doing an additional assessment or they can also identify their waters for Tier 2 protection on a parameter

- by

- parameter basis instead where individual 303(d) listings based on the particular parameter in question can be the sole source of information

. EPA disagrees with comments suggesting that the final rule specifically allow discretion to use an alternate approach that would identify water quality for Tier 2 protection on a “ use

- by

- use ” basis, rather than water body

- by

- water body. According to the commenters, u nder such an approach, a water that does not support CWA 101(a)(2) aquatic life uses but supports CWA 101(a)(2) recreational uses would receive Tier 2 protection for the recreation uses but not the aquatic life uses. For EPA ’ s response to comments regardi ng which parameters receive Tier 2 review after a water body is identified for Tier 2 protection , please see response essay 7.d.i.Chapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

Other commenters described identifying waters for Tier 2 protection on a different type of “ designated

use ” basis, whereby a water body with water quality better than necessary to support one entire use specified in CWA section 101(a)(2) (e.g., aquatic life) would be considered a Tier 2 water (for all uses.) EPA would view this type of approach as consistent wi th the final rule.

EPA disagrees with comments stating that if a water body is meeting just one water quality criterion that supports a CWA 101(a)(2) use, but not meeting any other water quality criteria, a state or authorized tribe nonetheless may be compelled by EPA to identify the waterbody as high quality, and if the state or authorized tribe fails to do so, then EPA may disapprove the state ’ s action under the auspices of reviewing the state ’ s standards submittal. The final rule d oes not require states and authorized tribes to provide Tier 2 protection to waters meeting just one criterion that supports a CWA 101(a)(2) use. In such situations, it requires the state or authorized tribe to consider a holistic assessment before excluding a waterbody from Tier 2 protection and subject the decisions to public involvement. In addition, as discussed earlier in this essay and in other essays, EPA ’ s authority under section 303(c) to act on standards is limited to those that are new or revised

. EPA will only have an opportunity to act on a
state ’ s or authorized tribe ’ s identification of high quality waters if it is a new or revised WQS

. EPA disagrees with comments that EPA did no t identify a compelling reason to restrict use of the water body -by- water body approach. Commenters did not explain why EPA ’ s reasons were not compelling and EPA has repeated its reasons for the regulatory changes in this response essay

. EPA disagrees with comments that the proposal expands EPA ’ s authority without author ization. The proposal and final rule do not expand EPA ’ s authority. The final rule is consistent with the CWA and EPA ’ s longstanding policies. The final rule enhances protection of high quality waters and promotes consistency in implementation of the regulations and increases transparency and opportunity for public involvement. The rule preserves states ’ and authorized tribes ’ decision

- making flexibility. EPA explained its reasoning and its authority in the preamble to the proposal and the preamble to the final rule (and elsewhere in the response to comments) and the final rule reflects EPA ’ s existing authority to establish regulations that serve the purposes of the CWA

. EPA disagrees with comments stating the proposed changes to the regulation regarding id entification of high quality waters (and analysis of alternatives) are overly prescriptive and would reduce flexibility of states, because the CWA specifically delegates to the states the discretion in weighing the “ use and values ” of various state waters for alternative purposes. EPA notes that CWA 303(c)(2)(A): “ Whenever the State revises or adopts a new standard, such revised or new standard shall be submitted to the Administrator. Such revised or new water quality standard shall consist of the designate d uses of the navigable waters involved and the water quality criteria for such waters based upon such 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 Act. Such stan dards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and also taking into consideration their use and value for navigation. ” The regulation does not pro hibit consideration of “ value ” and the preamble to the final rule discusses how public value can be considered when identifying high quality waters.

Commenters objected to the proposed changes because they would impose new obligations on some states and authorized tribes using water body

- by

- water body approaches, potentially subjecting more waters to Tier 2 review, and that EPA had incorrectly characterized the changes as clarification of existing requirements. EPA agrees that the final rule imposes new obl igations, although EPA points outChapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

that many of the changes indeed represent clarifications of existing policy

. EPA appropriately requested comment on all of the proposed changes. The title of rule does not substantively alter its content.

Commenters stated that if a state or authorized tribe improperly designates a waterbody (i.e., as not receiving Tier 2 protection) and thus denies antidegradation review in a particular permit proceeding involving a waterbody that should be, but is not, listed as high quality, then EPA (along with any interested third party) would have immediate recourse to challenge that aspect of t he state ’ s permit decision. EPA agrees that EPA has oversight authority over permits in many cases (e.g., NPDES), and can step in if a state or authorized tribe did not appropriately carry out Tier 2 review where it is warranted. In the NPDES example, like wise, the public has the opportunity to comment and challenge that aspect of a proposed permit. The commenters said that ensuring proper classifications, as applied, seems to be a better and more direct option than what EPA proposes because it respects sta te discretion in listing
water bodies, while at the same time protecting against error at the point when those listings are in fact applied. EPA agrees that proper classification in the first place is the most publicly transparent approach, however EPA doe s not view this as opposing what EPA had proposed. The final rule requires that states and authorized tribes adopt legally binding requirements that are consistent with section 131.12(a), including the regulations governing use of a water body

– by

– water bod y approach, and EPA and the public have a chance to view and be involved in state and authorized tribal decisions about whether a water receives Tier 2 protection. Whether this involvement happens during a WQS rulemaking, a permitting or licensing process, or all of the above, depends on the state ’ s or authorized tribe ’ s specific procedures.

EPA disagrees with comments suggesting that if EPA finalizes changes to the rule, it should clarify that previously approved state and authorized tribal antidegradation policies and methods remain in effect and do not need to be amended. T he rulemaking process is established recognizing that regulations may need to change in order to better meet the objectives of the CWA as new environmental challenges arise and new scie nce is developed. EPA ’ s preamble to the proposed rule and final rule explain that federal antidegradation requirements were not fully successful in ensur ing that antidegradation is implemented consistent with the CWA. EPA is ready to assist any state or au thorized tribe in evaluating their currently applicable antidegradation requirements to determine whether and what revisions are necessary to comply with the new requirements. EPA understands that any potential revisions may take time. Thus, the preamble t o the final rule explains “ EPA ’ s expectation is that, where a new or revised requirement necessitates a change to state or authorized tribal WQS, such revisions will occur within the next triennial review that the state or authorized tribe initiates after publication of the rule. ”

EPA disagrees with commenters ’ assertion that the proposal would expand the definition of “ high quality ” water well beyond its historical application, which focused on th ose waters where water quality exceeds levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water. The final rule does not substantially change the definition of what constitutes high quality waters in 131.12(a)(2) but rather puts restric tions on one approach so that it remains consistent with the existing definition of high quality . As in the past, states and authorized tribes identify their own waters for Tier 2 protection, which can be broader (parameter

- by

- parameter) or narrower (water body

by

- water body).

EPA disagrees with commenters ’ assertion that the proposed changes to antidegradation would

“ subdivide uses finer and finer, ” multiplying the resources needed to deal with them. Nothing in the final rule provisions for antidegradation requires subdivision of designated uses. Tiers of antidegradationChapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

protection are distinct from designated uses. The final rule does not create any more tiers or require states and authorized tribes to create any more tiers of antidegradation protection

.

E PA disagrees with comments arguing that the proposal would lead to litigation due to vagueness. Comments stated that the proposal for identification of high quality waters was vague and ambiguous
, and would therefore lead to litigation. Commenters pointed to concerns that legal challenges could come up regarding how it is to be judged whether a water is excluded “ solely because ” water quality is not exceeding levels necessary to support all of the uses specified in CWA 101(a)(2), how “ solely ” is defined, wh at it means as far as the obligations on states and authorized tribes , and what “ overall holistic assessment ” means

. Commenters stated that EPA should clarify. EPA recognizes that regulatory provisions that do not provide a great deal of detail can lead to challenges for permit writers or others implementing the standards and for courts reviewing actions related to the standards. State and authorized tribal decisions on whether or not to apply Tier 2 protection to waters on a water body

- by

water body basis have been subject to legal challenge in the past, when EPA provided no limitations to how the method could be used, and a variety of interpretations existed. The final regulation provides more structure to the requirement to identify waters for Tier 2 prot ection ; EPA finds that the rule is not
vague or unreasonably subjectiv e . Short of making the regulation completely prescriptive, there is no way to prevent litigation over what exactly is required by the regulation in the future. The final rule strikes a balance between providing some boundaries and clarity on what the regulation means
, while avoiding overly prescriptive dictates. EPA ’ s view is that the level of detail in the final rule is appropriate for the regulation, while guidance is more appropriate for describing the specifics of how states and authorized tribes could identify waters for Tier 2 protection . The proposal preamble and preamble to the final rule provide important interpretive information to which co

- regulators and the regulated community can look for clarification. States and authorized tribes have the ability to reduce uncertainty for regulated entities in their jurisdictions by providing additional rules or guidance that complement but are more detailed than the federal requirements. EP A will consider these issues when developing subsequent guidance on antidegradation after the final rule is published.

EPA disagrees with comments saying that that the restrictions to the water body

- by

- water body approach would result in a situation where state and authorized tribal decisions are too easy to challenge, and that they could be forced to do endless studies. State and authorized tribal decisions on whether or not to apply Tier 2 protection to waters on a water body

- by

- water body basis have been subject to legal challenge in the past, when EPA provided no limitations to how the method could be used, and a variety of interpretations existed. Commenters provided no explanation as to why adding conditions to the water body

- by

- water body approach wou ld lead to more legal challenges than in the past. If a state or authorized tribe identifies waters for Tier 2 protection and waters that will not receive Tier 2 protection consistent with the final rule, and subjects those decisions to public involvement, it has appropriately followed the rule requirements. There is no reason decisions about Tier 2 protection in particular would lead to public involvement requiring endless studies any more than other decisions that are subject to public involvement.

Commen ters provided no explanation for the assertion that changes to the requirements for using a water body

- by

- water body approach will force states and authorized tribes to change to the parameter

by

- parameter method in order to avoid litigation. EPA does ackn owledge that the parameter

- by

parameter method is inherently more objective.Chapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

EPA disagrees with comments that the proposal was inconsistent with state policies to encourage infilling and protecting green space by placing additional barriers on discharges near impaired waters. The final rule does not explicitly place additional barriers on discharges near impaired waters nor does it require states and authorized tribes to classify impaired waters as Tier 2. However, where such waters are in fact identified a s high quality waters, this does not mean that the state or authorized tribe cannot also move towards infilling and protecting green space. A Tier 2 review only means that the decision making progress to allow any lowering and how much lowering goes throug h a public process. During the Tier 2 review, the alternatives analysis will need to consider whether there are any alternatives to lowering the water quality and whether the activity accommodates important economic or social development. After the process, the state/authorized tribe and the public may decide that such activities are a valuable use of the assimilative capacity.

Commenters stated that under the water body

- by

- water body approach, EPA ’ s explanation ignores that even if Tier 2 protection is not afforded a use because the water body is impaired for another use, that first use must nevertheless be fully protected, including the maintenance of the water quality criteria established for the protection of that use. The commenter conflates the protect ion of high water quality in a Tier 2 water with protection of a designated use (via criteria.) These are fundamentally different, because Tier 2 protects water quality above and beyond that necessary to support the uses specified in CWA section 101(a)(2), so simply protecting a designated use (for example, of aquatic life or recreation) and associated criteria will not provide the same protection that Tier 2 would.

Commenters did not provide explanations for assertions that the proposed changes to the iden tification of waters for Tier 2 protection would not provide environmental benefit. EPA discusse s the benefits of providing more waters with Tier 2 protection in the preamble to the proposal and the final rule

. Commenters objected to the proposed changes to the provision regarding identification of waters for Tier 2 protection with the argument that it would require a ‘ one

- size

- fits

- all ’ approach when local conditions vary. EPA disagrees. The final rule allows st ates and authorized tribes to use the parameter

by

- parameter approach, or a water body

- by

- water body approach, which are fundamentally different approaches. Further, when using a water body

– by

– water body approach, EPA ’ s rule does not prescribe exactly how it is to be used, just one way that is prohibited. States and authorized tribes have discretion as to the factors they consider and how they weigh those factors when identifying waters for Tier 2 protection on a water body

- by

- water body basis as long as th ey go through a public process for each decision . The evaluation need not be the same in every state and authorized tribe that uses a water body

- by

- water body method. It need not be the same even within a state or authorized tribe, as they may weigh factors differently in different waters.

EPA acknowledges that commenters provided reasons to justify why the water body

- by

- water body approach should be retained, and can be in some cases preferable to the parameter

- by

- parameter approach. EPA agrees that the water body

- by

- water body approach accommodates a holistic approach (e.g., allowing weighing the importance of various parameters, considering the value to the ecosystem) while the parameter

- by

- parameter approach does not. EPA agrees that a water body

- by

- wate r body approach can provide more flexibility to states and authorized tribes in terms of excluding waters from Tier 2 protection. EPA agrees that a water body

- by

- water body approach may facilitate implementation in states and authorized tribes because whic h waters are protected by Tier 2 can be identified upfront. EPA recognizes that commenters see drawbacks with the parameter

- by

- parameter approach, including that it is difficult to implement for general permits, can be cumbersome and can require more data and time. Although EPA does not disagree with these characterizations, EPA ’ s view is that the parameter

- by

Chapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

parameter approach likely results in more waters receiving some degree of Tier 2 protection because it would cover waters that are clearly not attaining goal uses (i.e., waters which are not supporting the uses specified in CWA section 101(a)(2) but that possess assimilative capacity for one or more pollutant). Commenters also stated that they favored the water body

- by

- water body approach because the
p arameter

- by

- parameter approach overlook s the larger impact of the proposed activity that would degrade water quality. EPA disagrees with this characterization , and commenters did not provide an explanation for the assertion. Under the parameter

- by

- paramete r approach, Tier 2 protection is provided for all of the parameters for which the water has high quality; it does not overlook the larger impact of the proposed activity. Comments stated that the parameter

- by

- parameter approach fails to accommodate a holistic analysis that balances the presence of nonattainment of some parameters along with the better than necessary quality parameters and determines the value to the ecosys tem of maintaining the better quality. EPA agrees that the parameter

- by

- parameter approach does not

“ balance ” considerations of different parameters and values, but does not characterize this as a

“ failure, ” since the approach clearly protects high water q uality consistent with the CWA. In addition, states and authorized tribes may take into consideration the advantages and disadvantages of each approach when deciding which approach to use to identify high quality waters.

On the other hand, EPA acknowledges that commenters provided reasons to support a parameter

- by

parameter approach. Commenters said that since Tier 2 is a function of the water body, its existing water quality (relative to a given pollutant) and the proposed discharge of that given pollutant , those factors complicate the task of compiling a list of Tier 2 waters whose status restricts introduction of ne w or expanded pollutant loads. EPA agrees that f or this reason, some states and authorized tribes may find

a parameter

- by

- parameter approach m ore workable.

Some c ommenters expressed concern that certain waters may be identified as Tier 2 when available data to conduct an overall holistic assessment are either inadequate or a legitimate and substantial disagreement exists over the data (e.g., validity, what they purport to demonstrate, how they were obtained). EPA recognizes that any decisions made on the basis of data can be disputed; in many situations, permit writers and state or authorized tribal officials are faced with the prospect of making decisions with limited data. Tier 2 provides a framework for state and authorized tribal decisions

. The final rule sets some boundaries on that framework when identifying waters for Tier 2 protection on a water body

- by

- water body basis. Beyond those bound aries, decisions about preservation of high water quality rest with the states and authorized tribes, subject to public involvement. The final rule does not impose data requirements, but states and authorized tribes may create their own data requirements t o make clear to the public how they will handle situations with different data limitations. EPA ’ s preamble to the final rule says that “ ...in instances where states and authorized tribes lack data and information on the water quality to make individual water body conclusions, EPA recommends that they provide all or a subset of their waters with Tier 2 protection, by default. Doing so will increase the probability that these waters will maintain a level of resiliency to future stressors. ”

EPA responds to comme nters ’ requests for clarification here.

Some c ommenters requested that the proposed language be revised to clarify that waters identified for Tier 2 protection on a parameter

- by

- parameter basis may be excluded from Tier 2 protection for those individual parameters that have been identified as impaired. EPA agrees that this is the case, since where there is no assimilative capacity for a parameter, Tier 2 protection cannot be provided. EPA did not change the rule to specifically clarify this because it is not a change in position or interpretation, and EPA is clarifying here.Chapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

Some c ommenters requested clarification on whether the rule requires a “ tipping point ” at which certain waters would be considered Tier 2 for all uses, even if not all (or most) CWA 10 1(a)(2) uses are met currently. For a water body

- by

- water body approach, if water quality exceeds levels necessary to support all the uses specified in CWA 101(a)(2), Tier 2 protection must be provided . If not, states and authorized tribes have discretion to choose whether or not to apply Tier 2 protection, provided it is in accordance with the final rule. A state or authorized tribe could base a decision to exclude a water from Tier 2 protection on the fact that it is supporting none of the uses specified in CWA 101(a)(2), or based on the fact that it is impaired with respect to at least one of those uses plus other factors considered in a holistic evaluation (see preamble to the final rule for more information on other factors that could be considered.) If a water is identified for Tier 2 protection, such protection is for all parameters and all uses for which the water has high quality. Pl ease see response essay 7.d.iii for additional discussion on conducting Tier 2 reviews.

Some c ommenters requested confir mation that a water impaired for one of the CWA 101(a)(2) uses would not be considered a high quality water, pointing to EPA ’ s previous actions in Kentucky, as discussed in Kentucky Waterways v. Johnson, 540 F.3d 466, 479 (6th Cir. 2008). The final rule

re quirement regarding identification of waters for Tier 2 protection on a water body

- by

- water body basis is different from the previous requirement
, which did not limit use of the water body

- by water body approach in any way

. Under today ’ s rule, w aters that do not support all CWA 101(a)(2) uses can be considered “ high quality, ” and protected by the Tier 2 regulations . EPA appropriately conducted notice and comment rulemaking to establish this interpretation in the final rule. Ky. Waterways was a 2008 case dec ided under EPA ’ s previous regulations. Please see response essay 7.d.iii, section B for additional discussion regarding the change from previous policy statements and the court rulings.

Commenters expressed concern that upon finalization of the rule, state s and authorized tribes would be required to undertake a proactive process of identifying all their high quality waters. They stated that the proposed rule could be misconstrued to require this, and requested clarification from EPA. EPA clarifies here that no such large

- scale, proactive endeavor is required. The final rule does not impose a timeframe for when waters must be identified for Tier 2 protection. It requires that for instances where a state or authorized tribe uses a water body

- by

- water body appr oach to identify waters that will and will not receive Tier 2 protection, whenever they do so, they must involve the public in those decisions. Some states and authorized tribes may wish to do this as part of a large

- scale proactive endeavor; others may wi sh to do it in another way. EPA also makes clear that there is no need for any proactive process to identify high quality waters when using a parameter

– by

– parameter approach as each decision occurs at the time a lowering is proposed.

EPA agrees with comments stating that the proposed regulatory language and proposal preamble seemed to conflate water quality sufficient to meet CWA 101(a)(2) uses (protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water) with water quality where the quality of the waters exceeds (or is better than) that necessary to support the uses specified in CWA section 101(a)(2). EPA agrees that, per 131.12(a)(2), Tier 2 protection is for the increment of water quality that is b etter than that necessary to support the uses specified in CWA section 101(a)(2). Water quality that just meets the level necessary to support CWA 101(a)(2) uses would not have additional assimilative capacity for which to provide Tier 2 protection. The pr oposal language regarding guidelines for the use of the water body

- by

- water body approach stated that states and authorized tribes “ must not exclude any water body from high quality water protection solely because not all of the uses specified in CWA 101(a )(2) are attained. ” EPA recognizes that the proposal language on use attainment could be misleading, and reworded the language in the final rule to read that states and authorized tribes “ shallChapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

not exclude a water body from the protections described in (a) (2) of this section solely because the water quality does not exceed levels necessary to support all of the uses specified in section 101(a)(2) of the Act. ” EPA disagrees with commenters, however, that the rule has always focused on “ water quality better t han necessary to attain the highest uses, in other words, truly pristine waters. ” First
, the uses specified in CWA section 101(a)(2) uses are not necessarily the “ highest uses, ” depending on how a particular state or authorized tribe designates uses. A sta te or authorized tribe may have use designations that are more stringent than use designations protecting the uses specified in CWA 101(a)(2). Secondly, the existence of high water quality better than necessary to support the uses specified in CWA section 101(a)(2) does not mean that a water is “ truly pristine. ” Many waters of the U.S. are not “ truly pristine ” due to pollution, but still have assimilative capacity that could be protected by Tier 2 of antidegradation. EPA further disagrees with the comment t hat it is inherently incompatible with the notion that Tier 2 waters deserve protection because they have the very highest water quality to say at the same time that the state has to classify a water as Tier 2 even where the water is impaired for one or mo re uses. First, 131.12(a)(2) does not specify that Tier 2 protection is for the “ very highest water quality, ” it is simply for water quality that is better than necessary to support CWA 101(a)(2) levels. Second, the proposed rule did not and the final rule does not require waters to be classified as Tier 2 if they are impaired for one or more uses. As discussed throughout this essa y and final rule preamble whether or not to protect a water identified as impaired for one or more uses or parameters depends upon the holistic assessment and the public process. EPA ’ s regulation only prohibits one way of implementing the water body

– by

– water body approach.

Some c ommenters requested that the final preamble include language clarifying that the rule does not preclude a state ’ s discretion to leave a waterbody off the Tier 2 list if one or more of its uses is not met. EPA agrees that under the final rule states and authorized tribes do have this discretion, provided they do so consistent with the requi rements of the final rule.

Some c ommenters requested clarification on whether EPA requires Tier 2 protection be provided for parameters associated with all of the CWA 101(a)(2) uses, or whether it is just for the use (or uses) being supported. Please see r esponse essay 7.d.iii for EPA ’ s response

.

Some c ommenters were concerned that the proposal language prohibiting waters being excluded from Tier 2 under the water body

- by

- water body approach solely because not all of the uses specified in CWA section 101(a) (2) are “ attained ” could be interpreted in a variety of ways , particularly since EPA did not define “ attain .” EPA agrees with the commenters that the proposal focused on situations where states and authorized tribes have refused to classify waters for Tier 2 protection because the waters are 303(d) listed as impaired for one or more parameters. However, the commenters stated that the proposal could be read to preclude states and authorized tribes from identifying as Tier 1 (that is, declining to provide Tier 2 protection) to waters that have not been classified with designated uses reflecting all of the uses specified in CWA 101(a)(2) (including support of aquatic life, support of wildlife, consumption of aquatic life, recreation). The commenters provided ex amples of ephemeral waters that a state has classified as Tier 1, and which have designated uses reflecting aquatic life, wildlife, and limited recreation, but not fish consumption because they cannot support a fish population. The commenters

were concerne d that EPA ’ s proposed rule would require that the absence of a fish consumption use designation in ephemeral waters paradoxically could be used to mandate that these waters be identified for Tier 2 protection, given that the waters have not been assigned a consumption of aquatic life use. They suggested that EPA clarify the rule text to focus on waters identified as impaired under CWA 303(d), or to refer to uses “ that have been designated for the waters ” rather than referring to the uses specified in CWA 101(a)(2). EPA clarifies here that the final rule does not require that states andChapter 3 – Response Essays 7.d.ii – Antideg HQ – Gen Opp

authorized tribes provide Tier 2 protection to water bodies that do not have designated uses reflecting all of the uses specified in CWA 101(a)(2). The commenters focused on r elating antidegradation Tier 2 to designated uses, however, in the final rule, 40 CFR s ection 131.12 directs states and authorized tribes to provide Tier 2 protection based on where water quality exceeds levels necessary to support fish, shellfish, and wil dlife, and recreation in and on the water. It does not matter what uses are design ated by the state or authorized tribe. If water quality exceeds levels necessary to support uses specified in CWA section 101(a)(2), that assimilative capacity is the water q uality that Tier 2 protection can help maintain. If a particular water has undergone a use attainability analysis ( UAA ) to remove or decline to designate a use specified in CWA section 101(a)(2) use because it is not attainable, this could be one of the factors that the state or authorized tribe could use to justify declining to provide Tier 2 protection. EPA points out also that what “ support of the CWA 101(a)(2) goals ” looks like can be different in different w aters. For example, w hat would naturally be expected in an ephemeral water in the arid southwest would differ from what would naturally be expected in northwestern salmon runs. See essay 7.e.iv for more information on comments about possible connections between UAAs and Tier 2.



### D. Comments on Tier **2.5**
The federal regulation does not contain a “ Tier 2.5 ” concept, though EPA recognizes that some states and authorized tribes use this concept to describe protection that is more protective than Tier 2 and less protective than Tier 3. Commenters recommended that EPA consider finalizing changes to the regulation explicitly allowing states and authorized tribes to differentiate between “ Tier 2 ” and “ Tier 2.5 ,” where “ Tier 2.5 ” represents waters identified by states ’ and authorized tribes ’ own antidegradation regulations as receiving a level of protection greater than for Tier 2 but less than for Tier 3. Commenters suggested that EPA allow for differentiation between how states and authorized tribes identify waters for Tier 2 and Tier 2.5 p rotection, and that Tier 2 should be subject to less rigorous analysis, for example, the social and economic evaluation for “ lesser Tier 2 waters ” could be less rigorous than what is required for all Tier 2 waters. Tier 2.5 is outside the scope of this rul emaking. EPA did not propose any requirements for a new antidegradation tier and is not finalizing any requirements for Tier 2.5. However , they still have the obligation that any requirements for Tier 2.5, if they employ such a category, be at least as pro tective as what the federal regulation requires for Tier 2.Chapter 3 – Response Essays 7.d.iii – Antideg HQ – Tier 2 R eview



## Essay 7. **d.i ii**  **– Antideg**  **radation and High Quality Waters: How Tier 2 Re**  **view is Conducted** 

**A. Comments r**  **egarding Tier 2**  **Reviews**

In the proposal preamble
, the U.S. Environmental Protection Agency ( EPA ) stated that it was considering whether to specify in regulation how state s and authorized tribe s determine for which parameters Tier 2 review must be conducted depending on the approach used to identify high quality waters. As EPA stated in the proposal preamble, EPA has made a variety of different statem ents providing guidance and recommendations for how to conduct Tier 2 reviews once a water body is identified as receiving Tier 2 protection. EPA requested comment on whether, once a high quality water is identified, the Tier 2 review process for that wate r body should differ depending on the approach used to identify it as high quality. EPA stated that one option would be that the Tier 2 review process would be the same no matter how the state or authorized tribe identified the water as receiving Tier 2 pr otection : EPA w ould specify that for the water body

- by

- water body approac h Tier 2 reviews must be conducted for all parameters for which the water quality has been identified as better than the applicable criteria developed to support the Clean Water Act ( CWA ) 101(a)(2) uses

. A second option was that EPA could specify that for waters identified as high quality on a water body

- by

- water body basis, Tier 2 reviews are only required for parameters associated with the 101(a)(2) uses currently being supported. A third option was that EPA could specify that states and tribes have discretion on how to conduct the Tier 2 reviews. EPA received far fewer comments on this topic (as opposed to the other topics in the proposal such as alternatives analysis and implementat ion methods). After considering the comments on this topic, the Agency ultimately chose not to specify in the regulation which parameters states and authorized tribes must include in their Tier 2 review when using the water body

- by

- water body approach . The Agency determined that this topic is more appropriately discussed in guidance

.

EPA had requested comment on several different options, including the following option: “...for the water body

- by

- water body approach the EPA could specify that Tier 2 reviews mu st be conducted for all parameters for which the water quality has been identified as better than the applicable criteria developed to support the CWA 101(a)(2) uses.” EPA considered comments supporting this option. EPA also considered comments saying that EPA should require alternate approaches in the regulatory text (e.g., codify that states and authorized tribes have discretion regarding which parameters receive Tier 2 review once a water is identified for Tier 2 protection under the water body

- by

- water body approach). Some c omments stated that a fundamental principle under the CWA is that the primary responsibility for establishing and implementing water quality standards ( WQS ) is with states and authorized tribes, and that allowing discretion on this po int would best recognize the states’ and authorized tribes’ primary role. Some c omments stated that EPA’s regulation should specify that discretion is allowed, in order to provide flexibility for different states and authorized tribes to craft approaches appropriate to their conditions and needs. They pointed out that decisions on allowing or not allowing degradation pursuant to a Tier 2 review are localized determinations. EPA acknowledges states’ and authorized tribes’ primary role in developing their own WQS. EPA’s view is that states and authorized tribes already have discretion to identify which waters receive Tier 2 protection, including the discretion to do this on a site

- specific basis, provided their approach is consistent with the federal regulatio n. EPA’s view is that in

or der to provide the appropriate protection to waters identified for Tier 2 protection under the water body

- by

- water body approach, the plain est and most consistent reading of section 131.12(a)(2) is as follows : no matter how a water body is assigned Tier 2 protection ( on a water body

- by

- water body basisChapter 3 – Response Essays 7.d.iii – Antideg HQ – Tier 2 R eview

or on a parameter

- by

- parameter basis )
, once the water body is identified for Tier 2 protection
, the state or authorized tribe conducts the Tier 2 review for all parameters for which water quality is better than CWA 101(a)(2) levels. This is because “w here the quality of the waters exceeds levels necessary to support the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water” (that is, where a water has been identified for Tier 2 protection), “ that quality shall be maintained and protected” unless the state or authorized tribe makes a finding to allow degradation through a Tier 2 review. While the final rule allows discretion in how waters are identified for Tier 2 protection, the requirement “ that quality shall be maintained and protected” unless a finding is made otherwise applies to all parameters in all waters identified for Tier 2 protection. EPA views this interpretation as clearly con sistent with the CWA as it provides Tier 2 protection to high quality waters on the parameters for which those waters are high quality . T hus this interpretation provides more assurance that the water quality shall be maintained and protected. Furthermore, this interpretation facilitates p ublic transparency about what is and is no t receiving Tier 2 protection. The final rule requires that states and authorized tribes using a water body

- by

- water body approach must involve the public on any decisions about whe ther they will provide Tier 2 protection to a water body, and the factors considered in such decisions

. EPA’s view is that the most transparent and straightforward approach is to provide Tier 2 protection to all parameters with high quality in a water identified as Tier 2. This way, no matter whether the state or authorized tribe identifies waters for Tier 2 protection on a parameter

- by

parameter basis or a water body -by- water body basis, when the public is informed that waters are identified for Tier 2 protection, it is clear that all the parameters with high water quality in those waters will receive Tier 2 protection.

EPA clarifies here that the interpretation described in pr evious paragraph does not mean that, under the water body

- by

- water body approach, Tier 2 review is required for all waters where water quality is better than criteria reflecting CWA 101(a)(2) uses for at least one parameter. That would essentially be equiv alent to requiring the parameter

- by

- par ameter approach for all waters. Instead, s tates and authorized tribes using the water body

- by

- water body approach are still able to exclude waters from Tier 2 protection entirely, if they do so consistent with the req uirements of the final rule. Once a water is excluded from Tier 2 protection on a water body

- by

- water body basis, Tier 2 review is not required, even if the water’s levels of some parameters are better than criteria reflecting CWA 101(a)(2) uses

.

Some c omm enters incorrectly stated that EPA’s proposal preamble said EPA might require Tier 2 review for all parameters for which water quality is better than the criteria . The proposal preamble did not say this. It asked for comment on whether, once a water is identified for Tier 2 protection on a water body

by

- water body basis, Tier 2 reviews must be conducted for all parameters for which the water quality has been identified as better than the applicable criteria developed to support the CWA 101(a)(2) uses

. The a pproach described in the proposal preamble is different in two ways from these commenters’ statements: 1) it focuses only on what occurs once a water is already identified for Tier 2 protection on a water body

- by

- water body basis (so, not relevant to waters that are identified as not receiving Tier 2 protection), and 2) it is specific to criteria to support CWA 101(a)(2) uses (rather than all criteria.)

A comment stat ed that since Tier 2 reviews are related to water quality

- based effluent limit s (WQBELs), the best approach is for the antidegradation Tier 2 analysis to be conducted for the individual parameters relevant to the discharge. This comment is outside the scope of this rulemaking, which does not address the ways in which Tier 2 review ties direct ly in to WQBEL development. For more information on WQBEL development, please see EPA’s NPDES Permit Writers’ Manual ( http://water.epa.gov/polwaste/npdes/basics/NPDE S- Permit

- Writers

- Manual.cfm ).Chapter 3 – Response Essays 7.d.iii – Antideg HQ – Tier 2 R eview

A comment point ed to EPA’s 1998 Advance Notice of Proposed Rulemaking ( ANPRM ) at p. 36782 as justification for the argument that the available assimilative capacity for any given pollutant must always be subject to Tier 2 prot ection ( regardless of how the state or authorized tribe identifies its waters for Tier 2 protection.) EPA disagrees with the characterization of the ANPRM citation. The ANPRM citation reads as follows: “ Existing approaches for identifying high quality waters fall into two basic categories: (1) pollutant

- by

- pollutant approaches, and (2) water body

- by

- water body approaches. States and Tribes following the first approach determine whether water quality is better than applicable criteria for specific pollutants that would be affected by the proposed activity. Thus, available assimilative capacity for any given pollutant is always subject to tier 2 protection, regardless of whether the criteria for other pollutants are satisfied...States and Tribes following the second approach weigh a variety of factors to judge a water body segment’s overall quality...Under this water body

- by

- water body approach, sometimes referred to as the ‘‘designational’’ approach, assimilative capacity for a given pollutant may not be subject t o tier 2 protection if, overall, the segment is not deemed ‘‘high quality.’’” The citation says that under the parameter

- by

- parameter method, Tier 2 protection is indeed provided to all parameters related to uses specified in CWA section 101(a)(2) for whic h assimilative capacity exists. However, u nder the water body

- by

- water body approach (previously, and as modified by the final rule )
, states and authorized tribes may choose to identify waters to exclude from Tier 2 review in a number of different ways consistent with the final rule requirements

. Therefore, under the water body

- by

- water body method, there are circumstances under which the available assimilative capacity for any given pollutant will not be subject to Tier 2 protection . A s stated in the A NPRM, if a water body is deemed overall “not high quality,” Tier 2 review protection would be denied for all parameters (as long as the makes this decision consistent with the final rule)

. This is still true under the final rule. Elsewhere in this essay EP A discusses the question of which parameters receive Tier 2 review, once a water is identified for Tier 2 protection.

Some c ommenters who expressed a preference for EPA to adopt a final rule requiring use of the parameter

- by

- parameter approach stated that if EPA declined to do so and allowed use of the water body

- by

- water body approach, EPA should at minimum require that waters that are attaining uses specified in CWA section 101(a)(2) to be protected as to the uses they are attaining. That is, states and

a uthorized tribes would have to provide Tier 2 protection for every water body for all parameters relating to the 101(a)(2) uses the water is attaining. Under the commenters ’ suggestion a state or authorized tribe would only be able to exclude a water from Tier 2 protection if water quality does not support any of the uses specified in CWA section 101(a)(2). EPA disagrees with th is suggestion because this would remove considerable state and authorized tribal flexibility to identify which of their waters will receive Tier 2 protection and which will not under a water body -by– water body approach . EPA’s view is that states and authorized tribes should be able to identify waters that will not receive Tier 2 protection, even when those waters may be exceeding leve ls necessary to support a 101(a)(2) use because of other factors identified through a holistic evaluation. The approach in the final rule provides a balance between preserving state and authorized tribal flexibility to use the water body

- by

- water body
appr oach as a way of managing resources and providing some limitations so that such an approach is used in a manner at least minimally consistent with the intent of the Act and 131.12(a)(2).

EPA agrees with comments stating that the Tier 2 analysis is only conducted for parameters for which the water quality is better than the applicable water quality criteria reflecting 101(a)(2) levels (i.e., where high water quality exists). The s tate or authorized tribe would then decide how much of the remaining assimilative capacity to delegate, if any, to that particular discharge. A comment suggested that the final regulatory text explicitly specify that Tier 2 reviews be confined to only those parameters associated with the uses specified in CWA 101(a)(2). T his inte rpretation i s a plain reading of the text
,Chapter 3 – Response Essays 7.d.iii – Antideg HQ – Tier 2 R eview

thus, EPA found it was unnecessary to include additional language. EPA reiterates the agency’s interpretation here.

Some c omments objected to EPA’s proposal because it did not state that Tier 2 protection should o nly apply to those parameters (or uses) that attain Tier 2 status, when not all of the uses specified in CWA 101(a)(2) are attained. Comments said that the rule language needed further clarification to limit Tier 2 review to those uses and parameters that are attained to the extent that they qualify as “high quality waters.” EPA agrees with part of this: if a parameter is not meeting levels necessary to support a use specified in CWA section 101(a)(2), then there is no high quality (“assimilative capacity”) on which to conduct Tier 2 review, so Tier 2 protection cannot be provided. However, it is possible to provide Tier 2 protection for parameters associated with uses that are not met. For example, an aquatic life use might not be met because of mercury lev els, but many other parameters associated with aquatic life uses have assimilative capacity. S tates and authorized tribes have discretion to identify which of their waters will receive Tier 2 protection, as long as that is done consistent with the final ru le requirements. Elsewhere in this essay EPA discusses the question of which parameters receive Tier 2 review, once a water is identified for Tier 2 protection.

A comment stat ed that EPA should continue to leav e the form of Tier 2 review to the states and authorized tribes, requiring only that any water body or parameter that is supporting a designated use be subject to an appropriate Tier 2 review before “ reducing its designated use protection. ” EPA disagrees that T ier 2 review is a precursor to reducing a water body’s designated use protection. The designated uses of a water body are applicable regardless of whether Tier 2 review results in authorizing lowering of high water quality. High water quality may only be lowered down to the level that is supporti ve of all the water body’s designated uses, even after a Tier 2 review. EPA discusses its response to requests for allowing discretion about which parameters receive Tier 2 review elsewhere in this
essay.

Some comment s stat ed that EPA’s proposed limitation on the water body

- by

- water body approach (that waters not be excluded solely because not all of the uses specified in CWA 101(a)(2) are attained) implies that EPA would evaluate and review high quality waters on a parameter

- by

- parameter basis regardless of the State's determination and identification of high quality waters. Please see response essay 7.d.ii for EPA’s response.



### B. Comments **That EPA’s**  **Restrictions on**  **Water Body**

**– by** 

**– Water**  **B ody**  **Approach C ontradicts**  **Previous Positio ns**  **and Court Rulings** 
EPA disagrees with comments opposing the proposed change to the regulation regarding identification of high quality waters on the basis that the change contradicts EPA’s previously published position regarding the water body

- by

- water b ody approach in the 1998 Advanced Notice of Proposed Rulemaking, 63 FR 36742 (July 7, 1998), the court decision in United States Court of Appeals for the Sixth Circuit in Ky

. Waterways Alliance v. Johnson , 540 F.3d 466 (6th Cir. 2008), the court decision i n Ohio Valley Environmental Coal. v. Horinko , 279 F. Supp. 2d 732 (S.D.W. Va 2003)
, EPA’s approval of Kentucky’s antidegradation Policy Implementation Methodology in 2010 , and other EPA approvals of state programs

. Commenters suggested that EPA’s inclusion of language that calls into question that court decision is likely to prompt litigation. EPA acknowledges that the final rule adds limitations to the states’ and authorized tribes’ use of the water body

- by

- water body approach, while EPA’s previous regulat ion at Title 40 of the Code of Federal Regulations ( CFR ) P art 131.12(a)(2) did not impose limitations. However, this change is within EPA’s legal authority and is appropriate. EPA’s authority toChapter 3 – Response Essays 7.d.iii – Antideg HQ – Tier 2 R eview

revise the antidegradation regulations is detailed in the preamble to the final rule, proposal, and elsewhere in the comment response document. EPA’s authority comes from section 501, 101, and 303 of the CWA. The cases cited interpreted the regulations that existed at the time of the challenged decisions. The new regulations which are will supersede the old regulations. The previous WQS regulation did not limit the use of the water body

- by -w ater body method, so under that regulation, EPA had no basis for disapproval of a state’s or authorized tribe’s water body

- by

- water body methods provided the state’s or authorized tribes’ methods were otherwise consistent with 40 CFR 131.12(a)(2). Thus EPA’s 2005 and 2010 approvals of Kentucky’s water body method and EPA’s defense of the state’s approach in the litigation were consistent with the applicable version of 40 CFR 131.12(a)(2) at that time. The 2008 KWA court opinion upheld EPA’s approval of the state’s approach because it deferred to EPA’s longstanding interpretation of its regulation effective at that time regarding high quality waters. (Similarly, the 2003 Ohio Valley opinion deferred to EPA’s interpretation of its regulation at the time.) Comm enters pointed to EPA’s statement in the 1998 ANPRM that “the waterbody

- by

- waterbody approach ” allows States and Tribes to focus limited resources on protecting higher

- value State or Tribal Waters” (ANPRM, 36783). However, commenters failed to point out th at in the same paragraph, EPA articulated its concerns about the water body approach: “However, the flexibility of the water body

- by

water body approach is also its principal disadvantage where a State or Tribe does not develop inclusive qualification criteria. For example, where a State’s or Tribe’s implementation guidelines define a narrow universe of waters, many deserving high quality waters may not receive tier 2 protection. Thus water quality may actually decrease in the waters not classified for tier 2 protection without a public review of the development decision.” So, while the applicable regulation before the publication of this final rule did not impose restrictions on the water body

- by

- water body method, EPA had indicated publicly as early as 199 8 that it had concerns about how an unrestricted approach could be consistent with the goals of the CWA and the WQS regulation. This answers commenters’ question about why EPA would seek to make a change to the requirements for identification of waters for Tier 2 protection given EPA’s previous approvals of and defense of the water body

- by

- water body approach.



### C. Comments **r egarding**  **the Burden**  **of Tier 2 Review** 
For a response to these comments, please see response essay 7.d.ii and response essay 12.a. for a d iscussion of EPA’s economic analysis (EA) which accounts for any burden and costs associated with today’s antidegradation requirements.Chapter 3 – Response Essays 7.e – Antideg – Alt Analysis



## Essay **7.e – Antideg**  **radation: Alt**  **ernatives Analysis** 

No comments are assigned to this issue category, and thus no response is necessary.Chapter 3 – Response Essays 7.e.i – Antideg Alt – G en Supp



## Essay 7. **e. i –**  **Antideg radation**  **Alternatives Analysis: General**  **Support for**  **Proposed Revision**

**A. Comments**  **That Generally Support the**  **Proposed Requirement**
The U.S. Environmental Protection Agency ( EPA ) agrees with comments regarding analysis of alternatives in Tier 2 review saying that such regulatory expectations will increase effectiveness of Tier 2 and promote needed consistency. EPA agrees that the proposed requirement would have supported the overall purpose of the Clean Water Act ( CWA ) , and EPA’s view i s that the final rule does so as well. EPA agrees that the proposal and final rule requirement is explicitly stating what would naturally be expected when deciding whether a lowering (beyond de minimis amounts, if a state or authorized tribe exempts de min imis degradation) is necessary to accommodate important economic or social development

. In development of the final rule, EPA reviewed and considered the examples provided by commenters which sought to illustrate circumstances where conducting an analysis of alternatives would have been helpful

. EPA agrees that the analysis of alternatives should be an open and transparent process. EPA agrees that the proposed discussion of what “practicable” means and EPA’s inclusion of a definition of “practicable” in the final rule will allow enough factors to be weighed in the overall reasonable consideration of both the finding and possible alternatives, without making the review “strict in theory, fatal in fact, ” as the commenter noted. EPA agrees that the final rule provides states and authorized tribes flexibility while still preventing or lessening degradation to waters, where possible

. EPA disagrees that the previous Tier 2 regulation stated that “ 1) whether allowing lower water quality is necessary to accomplish the proposed activity, typically by examining alternative ways of accomplishing the activity through an alternatives analysis; and 2) whether the proposed activity that will result in lower water quality will accommodate important economic or social develo pment, through a socio

- econom ic analysis.” The language of the Tier 2 regulation prior to today’s rule stated: “ Where the quality of the waters exceeds levels necessary to support the protection and propagation of fish, shellfish, and wildlife and recreati on in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses ful ly. Further, the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost

- effective and reasonable best management practices for nonpoint source control. ” That sai d, some states may have conducted or required alternatives analyses prior to this final rule and that would not have been inconsistent with the regulation. Prior to today’s rule, the regulation did not explicitly mention an alternatives analysis.



### B. Commen **ts r**  **egarding Degradation Only Where “**  **Necessary ”** 
A commenter stated that degradation should only be allowed when absolutely necessary. The commenter did not specify how they would define “absolutely necessary
, ” but EPA’s regulations clearly indicate that de gradation may be allowed if necessary to accommodate important economic or social development

. Some commenters stated that any decision to reduce high quality water protection must include an analysis of alternatives to avoid or minimize degradation. EPA p oint s out that some statesChapter 3 – Response Essays 7.e.i – Antideg Alt – G en Supp

and authorized tribes may exempt some activities that would degrade high water quality from Tier 2 review by using de minimis exemptions as described in the preamble to the final rule. In such cases, an analysis of alternatives w ould not be necessary if the degradation was de minimis

. Please see response essay 7.i. for further discussion on de minimis

. Commenters stated that by definition degradation cannot be “necessary” unless there are no alternatives available. EPA agrees that
, in principle, making a determination that degradation is “necessary” requires an examination of whether alternatives could prevent the degradation. However, EPA also recognizes that not every alternative that might be theoretically “available” is appropriate for implementation. The final rule provides that in order to make the finding that a lowering is “necessary ” a range of practicable alternatives that would prevent or lessen degradation associated with the proposed activity shall be evaluated. The rul e does not require an evaluation of a lternatives that are not practicable (a term defined by the final rule ).



### C. **Comments on the Level**  **of Detail**
EPA received a comment that EPA should put in rule its sentence in the preamble to the proposed rule explaining that the alternatives analysis should tailor the level of document ation and detail to the significance and magnitude of the particular circumstances encountered. The commenter thought that this was a very important concept that should be in rule rather th an “in unenforceable and easily missed in preamble language. ” EPA agrees this is a very important concept and EPA made a similar statement in the Water Quality Guidance for the Great Lakes at Title 40 of the Code of Federal Regulations ( CFR ) P art 132, in a ppendix E

. H owever , EPA does not agree that the commenter’s suggested language should be included in the water quality standards ( WQS ) regulation

. The final rule preamble states “...the analysis should document a level of detail that reflects the significance and magnitude of the particular circumstances encountered, to provide the public with the necessary information to understand how the state or au thorized tribe made its decision,” thus providing the appropriate guidance to states and authorized tribes. This final regulation provides some specific changes to the water quality standards regulation, while the Great Lakes Initiative ( GLI) was a more ex tensive regulation that addressed many issues. Therefore, EPA chose to address this point in the preamble to the final rule. While not a part of the regulatory text, the preamble is included in the Federal Register (FR) notice and accessible to states, tri bes, and the public.



### D. Comments **That EPA Should Require**  **the “ Least Degrading Practicable**  **Alternative ”** 

Some c ommenters suggested that EPA require states and authorized tribes to choose the “least degrading alternative” or the “least degrading practicable a lternative” to implement. The preamble to the final rule explains that EPA chose not to require implementation of the least degrading practicable (or least degrading) alternative to allow states and authorized tribes the flexibility to balance multiple

con siderations. Some alternatives to lowering water quality can have negative environmental impacts in other media (e.g., air, land). For example, incinerating pollutants rather than discharging the pollutants to surface waters could adversely impact air quality and energy use, and land application of pollutants could have adverse terrestrial impacts. EPA recommends that states and authorized tribes consider

cross

- media impacts and, where possible, seek alternatives that minimize degradation of water quality

a nd also minimi ze other environmental impacts. Please see response essay 7.e.iv for additional discussion.Chapter 3 – Response Essays 7.e.i – Antideg Alt – G en Supp



### E. Comments on **Additional Guidance**
Commenters suggested that EPA provide guidance to clarify expectations and to explain how to successfully conduct a n analysis of alternatives. EPA intends to provide additional guidance on analysis of alternatives subsequent to the publication of this final rule

.



### F **. Comments on Alternatives to**  **Be Identified**

Some comment s suggested that EPA amend its rule to specify “...If the State can identify any practicable and economically viable alternatives, the State may choose.....” EPA agrees that the alternatives must be economically viable, but rather than amend the rule language as suggested by the commenter, EPA included a regulatory definition of “practicable” which says “ Practicable, in the context of § 131.12(a)(2)(ii), means technologically possible, able to be put into practice, and economically viable.”



### G **. Comments on the**  **Co ntext**  **of Alternatives Analysis** 

Some comment s asked EPA to clarify in what context an alternatives analysis is required . They suggest ed that traditionally, the analysis (along with the rest of Tier 2 review) has always been performed in the context of permi tting. For a response to these comment s , please see response essays 7.f.i paragraph I and 7.g.iii paragraph s C, K, and M

.



### H **. Comments on W ater**  **Q uality**  **S tandards**  **Variances**
For responses to comments on WQS variances, please see the response essays 8.a. – 8.m . and response essay 8.i. on variance renewals.Chapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp



## Essay 7.e.ii **– Antideg**  **radation Alternatives**  **Analysis: General Opposition**  **for Proposed Revision**

**A. Comments in**  **S upport for**  **A lternatives**  **A nalyses** 

T he U.S. Environmental Protection Agency ( EPA ) agrees with comments stating that an alternatives analysis is a key component of antidegradation implementation and that it is important such an analysis look at alternatives that eliminate or minimize water quality impacts for reasons described in the proposal preamble.



### B. **Comments T**  **hat R**  **equiring a**  **n A**  **lternatives A**  **naly sis I**  **s R**  **edundant or U**  **nnecessary**
EPA disagrees with comments stating that the proposed requirement to conduct an analysis of alternatives was redundant of already existing language at section 131.12(a)(2) that requires s tate s and authorized tribes to protect existing uses fully and assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost

- effective and reasonable best management practices (BMPs) for nonpoint source (NPS) co ntrol . However, the existing requirements referred to by the comments relate to existing uses and other point sources and NPS , but d id not specifically require an analysis of alternatives to determine whether a lowering of high water quality is “necessary.” The specific requirement for analysis of alternatives is not redundant.

EPA disagrees with comments stating that a requirement to conduct an analysis of alternatives is
unnecessary. EPA determined that i n order for a state or authorized tribe to make a c redible finding that allowing lower water quality is “necessary,” the finding must be based on an analysis of alternatives to the proposed lowering , resulting in either preventing the degradation, or only allowing as little degradation as is actually neces sary

. Without an analysis of practicable alternatives, a finding that a lowering of water quality is “necessary” is lacking in a key piece of information – whether there are other practicable options that could work instead with less degradation than the p roposed alternative

. Without this type of analysis, EPA determined that states and authorized tribes cannot appropriately find that a lowering of water quality is necessary.



### C. **Comment T**  **hat EPA ’**  **s R**  **equirement I s**  **I nconsistent**  **with the**  **C lean**  **W ater**  **A ct**  **and P**  **reviously Existing R**  **egulation**
EPA disagrees with comments stating that the proposed requirement is inconsistent with previously existing antidegradation regulatory requirements and Clean Water Act ( CWA ) requirements and that the EPA should not allow degradation if there are alternatives. The CWA and EPA ’s water quality standards ( WQS ) regulation have never prohibited degradation of high quality waters. The antidegradation provisions have never been intended to prohibit growth on or near high quality waters but rather to require states and authorized tribes to evaluate whether such degradation is necessary prior to allowing degradation. Section 131.12(a)(2) requires high water quality to be maintained and protected unless the
state or aut h or i zed tribe finds t hat the lowering of water quality is “ necessary to accommodate important economic or social development in the area in which the waters are located. ” The intent of th at provision is to allow states and authorized tribes the flexibility to make informed, de cisions about whether it is necessary to allow degradation of high water quality

. T he new requirement at Title 40 ofChapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

the Code of Federal Regulations ( CFR ) section 131.12(a)(2)(ii) explicitly requires consideration of alternatives that could be implemented to eliminate or minimize the lowering of high water quality in order to determine whether degradation is necessary. The new requirement specifically only requires consideration of alternatives that are practicable to implement , not “a ll ” alternatives

. If “ all ” alternatives were required to be considered, and if degradation were prohibited if any alternative was possible, the argument could be made that degradation is prohibited in all cases. This is because not allowing an
act ivity is always an alternative, even if not always a practicable one (e.g., not allowing expansion of a wastewater treatment facility to accommodate increased urban development). Allowing states and authorized tribes the flexibility to make decisions about whether degradation of high quality waters is

“ necessary ” based on an analysis of practicable alternatives, rather than prohibiting it at a federal level
, is consistent with the CWA and the WQS regulation.

EPA disagrees with comments stating that the final rule should require that alternatives analysis include review the “ least degrading ” alternative and where appropriate, result in choosing the “ least degrading ” identified alternative in order to minimize impact to water bodies. EPA also disagrees with comments
st ating that the rule will give states and authorized tribes too much latitude to choose an alternative that would degrade water quality even when a non

- degrading alternative is available. Comments stated that in this situation, lowering water quality is demonstrably not “necessary,” so the proposal is not consistent with the antidegradation requirements and the CWA goals. The language of the final rule requires an analysis of a range of practicable alternatives that would prevent or lessen degradation and al lows states and authorized tribes the flexibility to make a finding that a lowering is “necessary” as long as a practicable alternative within that range is chosen to be implemented. The final rule recognizes that requiring a non

- degrading alternative, or least degrading alternative, in all cases, could lead to adverse effects on other media (e.g., land, air). Further, alternatives may differ as far as economic viability and ease of implementation, which are factors important for states and authorized tribe s to consider when making decisions about resources available for other water quality protection efforts. For example, a state or authorized tribe might choose an alternative to implement that is not the “ least ” degrading among the alternatives, but that is significantly less resource

- intensive to implement, freeing up other state or authorized tribal resources to put towards complementary protection efforts. As part of the Tier 2 review, analysis of alternatives are subject to public participation and intergovernmental coordination, which should provide transparency about factors in the decisions about lowering or maintaining high water quality. Thus, state and tribal decisions that a lowering of water quality is necessary will be more fully vetted and transparent to the public. EPA views the final rule provision on analysis of alternatives as an appropriate balance between protection of high water quality and state and authorized tribal flexibility that is consis tent with the intent of the CWA and EPA ’ s regulatory language at section 131.12( a )(2)

. Please see response essay 7.e.iv for additional discussion.



### D. **Comments a**  **bout W**  **ho H**  **as the E**  **xpertise to M**  **ake D**  **ecisions A**  **bout A**  **lternatives**
EPA agrees with comments stating that stat es and authorized tribes, should not be required to spend resources conducting the analysis of alternatives and that they will not necessarily have the expertise or resources to conduct the analysis of alternatives in Tier 2 review

. EPA agrees th at manufacturing and business decisions are most appropriately made by the dischargers and that an analysis of alternatives

can be (as they are typically done now) done by the discharger itself . T he final rule language is written without predetermining what entity conducts the analysis providing the needed flexibility for the most appropriate entity to conduct the analysis of alternatives. As explained in the final preamble, the analysis of alternatives can be provided by one or more different entities as long as states andChapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

authorized tribes make the final decisions authorizing degradation of high water quality based on a reasonable, credible, and adequate analysis of alternatives

. EPA agrees that an applicant is ultimately in charge of the scope of its proposed project, however states and authorized tribes have no obligation to grant, certify or otherwise allow projects that degrade water
qu ality. States and authorized tribes can deny permit applications or certifications. They can also require conditions in permit is that reflect modifications to the intended scope of a proposed project. EPA ’ s final rule does not change this existing state/a uthorized tribal discretion but rather helps ensure that states and authorized tribes have the appropriate information to make their decisions. Please see the preamble to the final rule for additional discussion.



### E. **Comments T**  **hat the A**  **lternatives A**  **nalysis and**  **S election**  **R equirement**  **E xceeds EPA**  **’ s**  **A uthority and**  **U nnecessarily**  **E xpands**  **S cope** 
EPA disagrees with comments stating that requiring an analysis of alternatives and the selection of a practicable alternative generally goes beyond EPA ’ s CWA authority and im permissibl y expands EPA ’s role. EPA also disagrees with comments that such requirements have no basis in standards established under section 303(c) of the Act. EPA provided a discussion of its CWA authority of antidegradation in the preamble to the proposed rule on page 54526 and is summarized in s ection D of the final rule and elsewhere in the comment response document

. EPA ’ s revisions to the requirements at section 131.12 are intended to ensure that state and authorized tribal antidegradation progr ams continue to be consistent with the purposes of the CWA
, fully meet the requirements of EPA ’ s regulation , and that antidegradation decision

- making is informed by examining alternatives and by public participation

. EPA disagrees with comments that the fa ct that Congress outlined specific vetting of alternatives in other sections of the CWA (e.g., NEPA, and LEDPA analysis under CWA 404) is evidence that Congress knows how to communicate to agencies when it wants them to undertake alternatives analyses. EPA has authority under the CWA s ection 501 to promulgate regulations necessary to implement the CWA. It is not unusual for the CWA to lack detail regarding the implementation of the statute

. Thus the EPA has the authority to promulgate regulations to impleme nt the purpose of the statute.

For these same reasons, EPA disagrees with comments that the proposal ranged further into implementation than its CWA authority allows, because the regulation dictate s how an alternatives analysis shall be conducted and which alternative shall be chosen. The final rule does not dictate exactly how the analysis of alternatives must be conducted nor does it specify which alterative must be chosen. Rather, it provides regulatory language to make clear that (1) an analysis of alternatives must be done, (2) the alternatives must be a range of practicable alternatives that prevent or lessen the degradation associated with the proposed activity , and (3) a state or authorized tribe shall only find that a lowering is necessary if on e such practicable alternative is identified and selected for implementation

. How the analysis is conducted is up to the entity conducting the analysis (and the state must base its decision on an adequate analysis) , which alternative is selected from the l ist of practicable alternatives is up to the selector. But, EPA ’s new regulations provide clarity on what must occur in order for the State ’ s or authorized tribe ’ s finding to be consistent with EPA ’ s regulations and with the CWA. This construct, in totalit y, is consistent with and furthers Congress ’ clearly stated policy to “ recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce
, and eliminate pollution [and]
to plan the development and use (including restoration, preservation, and enhancement) of land and
water resources... ” Title 33 of the United States Code ( U.S.C. ) s ection 125 1 (b).Chapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

EPA als o d isagrees with c omment s that E PA h as n o authority t o mandate an alt ernatives an alysis because when E PA r eviewed a nd a pproved W ashington S tate ’s an tidegradation p rovisions in 20 07
, EP A declined t o re view t he following state provision : “ The department retains th e discretion t o r eq uire t hat the ap plicant examine s pecific alt e rnatives, or that ad d itional information b e p rovided t o c onduct the analysis. ” EPA ’ s le tter s tated t hat E PA w as n ot ac ting o n t he p rovision b ecause e xamining s pecific alternatives or requiring ad ditional informa tion was a t th e state ’ s d iscretion, a nd the p rovision w as n ot a

n ew o r revised WQS under se ction 3 03(c) of the CWA because it wa s a s upplementary r equirement beyond w hat t he regulations re quired at t hat time

. Th e provision r eferred t o i n the commenter’s ci tation i s one that a s tate chose to a dopt t o g ive itself d iscretion t o r equire an a pplicant to exa mine specific alt ernatives o r to r equire ad ditional in formation. P lease s ee “W hat is a N ew or R evised W ater Quality S tandard u nder C WA 3 03(c)(3)? – Frequently Asked Q uestions ” for the factors E PA considers when e valuating w hethe r a s tate p rovision is a new o r revised WQS subject t o E PA r eview at http://water.epa.gov/sci tech/swguid ance/standards/cwa303faq.cfm

. Commenters c onflate d EPA ’s authority to re view s tate a nd au thorized t ribal adopted W QS w ith E PA ’s au thority t o p romulgate a federal WQS re gulation mandating an alysis of alternatives in the c ontext o f Tie r 2 re view. As e xplaine d elsewhere in this r esponse , E PA h as t he au thority to e stablish fe deral re gulations fo r antidegradation. At th e time of

E PA ’ s d ecision, EPA f ound t hat the A gency did n ot h ave 303(c) r eview authority o v er t h e Washington provision. E PA ’s e valuation at t hat t ime o f whether the p rovision w as o r was n ot a new o r revised W QS has n o b earing o n w hethe r EPA h as au thority t o p romulgate n ational requirements requiring an an alysis of alternatives

. EPA disagrees with comment s stating that the proposed amendment exceeds EPA ’ s authority and could conflict with specific provisions of the CWA , including s ections 301 and 303 (c) because it would create a new effluent standard to be applied plant

- by

- plant. C omment s stated that this w ould render the uniform technology

- based requirements developed by EPA pursuant to s ection 301 almost entirely superfluous and bring the rule into conflict with these provisions in ways the existing policy does not. EPA ’s technology based effluent standards are effluent quality requirements based on available technology, not requirements to install specific technologies. EPA does not dictate what technology dischargers must install in order to meet the effluent standard. WQS establish designated uses and

cr iteria to protect those uses that could result in water quality

- based effluent limits (WQBELs) that are more stringent than technology based effluent limits (TBELs) . W hen conducting a Tier 2 review to identify alternatives to the degradation of water quali ty , EPA ’ s final rule does not pre

- determine a particular alternative that must be implemented or that the permit must require a specific alternative to be implemented

. Rather, when a state or authorized tribe makes a finding that a lowering of high water
q uality is “necessary,” that finding can only be made when a non

- degrading or less degrading alternative identified in the analysis of alternatives is selected to be implemented and therefore some lowering is still “necessary.” The permit would then determine the appropriate limit keeping in mind this particular alternative that the discharger will implement. Where the WQS lead to WQBELs that are more stringent than TBELs, it is possible that the discharger will need to implement a technology to meet that WQBEL that is different from the technology that the TBEL was based on. However, this does not mean that EPA is establishing new technology based effluent standard s with its final rule. The outcome of these state and authorized tribal decisions inform how the specific activities are allowed (e.g., permitted, licensed, certified) on a case by case basis.

EPA disagrees with comments stating that the proposed requirement for alternatives analysis could effectively require state s to conduct a “ best available technology economically achievable ” (BAT) analysis for every pollutant discharged for a project to high quality water, not just pollutants of concern as in a technology

- based best professional judgement ( BPJ) analysis under 40 CFR 125.3. The final ruleChapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

does not require BAT analysis but an analysis that would identify a range of practicable alternatives. As discussed in section F of this essay , requiring identification of a “ range ” is not the same as identification of all practicable alternatives. In addi tion, as discussed in section O of this essay, EPA ’ s definition of

“ practicable ” in the context of 131.12(a)(2) is broader than just the “ best available technology economically achievable .”

EPA disagrees with comments stating that the proposal regarding alternatives analysis would require a permit applicant to demonstrate that the least degrading alternative has been selected, requiring them to demonstrate that its level of treatment is the highest level technologicall y and economically achievable. A specific commenter states that this converts Tier 2 review into a form of n ew s ource p erformance s tandard (NSPS) assessment, which would inappropriately impose a technology

- based analysis on a water

- quality based issue. Fir st, the proposal did not and the final rule does not require the permit applicant to select the least degrading alternative. Please see response essay 7.e.iv for additional discussion on the alternative to be selected. Second, the final rule requirements f or analysis of alternatives in Tier 2 review are not equivalent to N SPS a ssessment. NSPS is defined at s ection 306 of the CWA. As discussed earlier in this section, w hen conducting a Tier 2 review to identify alternatives to the degradation of water qualit y, EPA ’ s final rule does not pre

- determine a particular alternative that must be implemented by certain types of dischargers nor does the rule require that the permit must require implementation of a specific alternative. Rather, when a state or authorized tribe makes a finding that a lowering of high water quality is “ necessary ,” that finding can only be made when a “ less degrading ” alternative is selected to be implemented and therefore some lowering is still “ necessary .” The permit would then determine the appropriate limit keeping in mind this particular alternative that the discharger will implement. The final rule is focused on the analysis that must occur before a state finds that a lowering is necessary. The rule does not establish any performance standard for dischargers or mandate any particular technologies.

EPA disagrees with comment s that the proposal would give EPA the power of approval or disapproval over new development and land use decisions

. EPA also disagrees that the proposal would engend er even more involvement of EPA in State decision

- making regarding wastewater planning, infrastructure,
etc. The final rule does not give EPA any direct approval or disapproval authority over states ’ and authorized tribes ’ decisions to allow degradation (n ote, that EPA does have authority under s ection 303(c) to approve or disapprove a new or revised state or tribal WQS ). In the context of antidegradation, new or revised WQS would only be a new or revised antidegradation policy and/or a new or revised legal ly binding antidegradation implementation procedure. EPA partly agrees and partly disagrees with comments that the proposal preamble suggests EPA can overrule a decision to allow degradation, vastly broadening federal control over state antidegradation dec isions. EPA can potentially overrule a decision to allow degradation; however, this was already the case under the previous regulation, based on EPA ’ s oversight authority in other programs. This rule does not alter the existing oversight authority EPA has

over National Pollutant Discharge Elimination Systems ( NPDES ) permitting programs and some other programs through which state and authorized tribes can allow degradation of high water quality

. For example, EPA has the authority to object to a n NPDES permit if the permit does not derive from and comply with the state or authorized tribe ’s applicable WQS, including legally binding antidegradation requirements. States and authorized tribes always have the discretion to involve EPA as part of normal EPA/ state working relationships. Under the final rule, t he states and authorized tribes continue to have the authority to decide whether and in what instances to make a finding that a lowering of high water quality is “necessary.”Chapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

EPA generally disagrees with comments that the proposed change to analysis of alternatives greatly and unnecessarily expands the current scope of antidegradation analyses
, will result in federal control of land use decisions, and is a new requirement. EPA has the authority to establis h new requirements where necessary to implement the CWA

. The alternatives analysis is a new requirement. However, t his final rule clarifies the requirement to find that degradation is “necessary” before allowing it, which previously existed, and makes explicit that the way to determine whether degradation is “necessary” is through an analysis of alternatives

. EPA ’ s requirement that the state or authorized tribe may only make a finding if an identified non

- degrading or less degrading practicable alternative is chosen for implement ation is reasonable because EPA found, after considering the comments and stakeholder input, that the new requirement appropriately expresses what it means to find degradation “necessary.” EPA ’ s view is that a credible finding that degradation is “necessary” is not possible if the entity making that finding has no information regarding whether practicable alternatives exist

.



### F. **Comments T**  **hat the R**  **equirements A**  **dd A**  **dministrative B**  **urden, D**  **elay, and C**  **ost**
Commenters objected to the proposal because they stated that it would cause substantial increased administrative burden and expenses for states, authorized tribes, and the regulated community because of the nature and amount of information required a nd the added complexity. Commenters provided no evidence or additional information for this assertion. The a nalysis of alternatives
, as described explicitly in the final rule
, is not inherently any more onerous or complicated than the previous rule ’ s requi rement to find that degradation is “ necessary. ” In addition, t he preamble to the final rule explains that

r egardless of the number of alternatives identified, the analysis should document a level of detail that reflects the significance and magnitude of th e particular circumstances encountered, to provide the public with the necessary information to understand how the state or authorized tribe made its decision. Thus, the burden associated with the analysis can be commensurate with the significance and magnitude of the potential degradation. EPA recognizes that with its explicit requirements to conduct an analysis of alternatives and the range of practicable alternatives this analysis should include, some states and authorized tribes may incur additional costs and burden as a result of evaluating more extensive analyses of alternatives or even conducting these analyses if that is what the s tate or authorized tribe chooses. EPA ’ s economic analysis (EA) includes consideration of these costs and burden and can be found both in the preamble to the final rule and EPA ’ s full EA published at the same time as the final rule. As described in the preamble, EPA obtained more precise estimates of burden and costs for this rule as a result of engaging states, as requested by them during the comment period, and EPA incorporated the information provided into its final EA

.

C ommenter s stated that the simplistic description of practicable alternatives described in the proposal is inadequate and understates the complexity of evaluating alternatives to prevent or limit lowering of existing high water quality. In addition, commenter s expressed concern that the ope n ended nature of the analysis could add so much time that a project will be cancelled just because of the time needed. EPA disagrees. EPA disagrees with comments that the proposal would require extensive, expensive, and repetitive studies because of diffe ring opinions regarding whether all possible alternatives have been evaluated and whether any of them meet the definition of “ practical ”

. The final rule provides a clear guideline that the analysis of alternatives shall evaluate a range of practicable alternatives, not ALL practicable alternatives. EPA received comment on this point and agrees. In addition, the final rule is written to intentionally allow s tates and authorized tribes to consider a variety of factors when evaluating the range of alternatives that prevent or lessen degradation and the alternative to be implemented when deciding whether a lowering of high water quality is “ necessary. ” EPA ’ s rule doesChapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

not predetermine exactly how the analysis and the selection of an alternative is to occur; it c an be complex or simple at the state or authorized tribe ’ s discretion, as long as it supports the
states ’ /authorized tribes ’ final determination that degradation is “necessary.”

EPA agrees with comments that it should not be the states ’ and authorized tribes ’ burden to perform an alternatives analysis on a potentially unlimited number of scenarios. As discussed in section D, EPA ’ s final rule makes clear that any entity can conduct the analysis of alternatives as long as states and author ized tribes make the final decisions authorizing degradation of high water quality based on a reasonable, credible, and adequate analysis of alternatives

. EPA disagrees with comment s stating that t he proposed alternatives analysis is particularly onerous, essentially forcing states to perform a use attainability analysis ( UAA ) when implementing St ate antidegradation provisions. The commenter s provided no explanation for these assertions. A Tier 2 analysis of alternatives is distinct and different from a UAA

. A UAA is a structured scientific analysis of factors affecting the attainability of a designated use, as described in 131.10 and generally accompanies a designated use revision which must submitted to EPA for review and approval or disapproval. An altern atives analysis is an evaluation of alternatives to lowering high water quality that informs a state or authorized tribe ’ s finding that a lowering of high water quality is necessary

.

Comments stated that the expectation to consider potential cross

- media impacts in alternatives analyses will place a significant economic burden on states and authorized tribes each time they conduct analysis. Please see s ection E of this essay for a discussion of why the final rule does not require considering potential cross

- media impacts.

Finally, in response to the various concerns about potential additional resource burden on states and authorized tribes to consider alternatives, the final preamble points out that a state or authorized tribe can obtain already

- compiled information on common practicable alternatives appropriate for a proposed activity from additional existing resources. For example, EPA ’ s Municipal Technologies website presents technology fact sheets to assist in the evaluation of different technologies for wastewater ( http://water.epa.gov/scitech/wastetech/mtb_index.cfm ).



### G. **Comments T**  **hat EPA M**  **ust R**  **etain F**  **lexibility for States and A**  **uthorized T**  **ribes**

Commenters stated that EPA should recognize the difficulty of “ approving or disapproving ” the methods associated with an alternatives analysis, including any accompanying social/ EA , if it were to mandate EPA review of th e state implementation methods. The final rule does not ma ndate states and authorized tribes to adopt antidegradation implementation methods for EPA review and approval or disapproval

. Please see section Q of this essay and response essay 7.f.i for additional discussion. EPA agrees with one commenter ’ s statement that states and authorized tribes “ need local flexibility in fashioning the metrics associated with analysis of alternatives given the variety of situations they will face based on state statutory schemes, geographic and hydrologic differences, and local e conomic conditions. ” However, EPA disagrees that this need for flexibility means that EPA should not promulgate a requirement for an analysis of alternatives. The final rule allows the flexibility for states and authorized tribes to develop their own methods specific to local needs, to consider different alternatives in different situations (e.g., different alternatives may be better i n a facility in the arid west than in a similar facility in a rainy area in the southeast) when deciding whether to authorize a lowering of high water quality , and to consider local economic conditions in the social/ EA

.Chapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

EPA agrees with comments stating tha t States should be allowed flexibility in making the determination whether lower water quality is both necessary and will accommodate important economic and social development. EPA also agrees with commenters that the final rule should retain state and aut horized tribal discretion to decide the sequence with which they satisfy the components of a Tier 2 review. T he preamble to the final rule makes clear that states ’ and authorized tribes ’ have the flexibility, as requested by commenters and in fact that the states ’ and authorized tribes ’ finding that a lowering is necessary depends on both an analysis of alternatives and an analysis related to economic or social development. In addition, states ’ and authorized tribes ’ have the discretion to decide the order in which they satisfy both aspects of a Tier 2 review

. EPA disagrees with comments that the proposed language was too restrictive because it said “ will only ” [make a finding to allow degradation... after conducting an alternatives analysis ] and with suggesti ons that EPA should say “ may. ” The purpose of the revision is to make the requirement to conduct an analysis of alternatives consistent across the country so that states and authorized tribes have reasonable, credible, and adequate analysis of alternatives to base their decisions on. Saying that states and authorized tribes “ may ” make a finding after an analysis of alternatives would imply that states and authorized tribes are not required to do so and that they may make a finding to allow degradation in

so me other way, without the analysis of alternatives. The final rule makes clear that the decision to allow a lowering of water quality can only happen after an analysis of alternatives and that the State shall only find that a lowering is necessary if a practicable alternative, if identified, is selected for implementation. It is important to note that some of the concern regarding flexibility was tied to the belief that EPA was requiring states and authorized tribes to conduct the analysis of alternatives
t hemselves. As discussed in s ection D, EPA ’ s final rule makes clear that the responsibility of the states ’ and authorized tribes ’ is to make the finding of “ necessity ” but that a 3rd party may conduct the analysis of alternatives.

Commenters objected to requiring selection of a “ less degrading alternative ” must be selected without identifying a baseline for comparison, because this would arbitrarily exclude a permit or license applicant ’s original proposal from ever being selected, even where it would represent the best balance of costs and benefits. Commenters also said that requiring the state to select a practicable alternative that prevents or lessens degradation is intrusive federal oversight. As discussed in section D. and the preamble, states and authorized tribes are not required to select the alternative to be implemented themselves. In addition, t he final rule only requires that a practicable alternative from the range of practicable alternatives that would prevent or lessen degradati on must be selected. If none of the alt ernatives are practicable, then the original proposal could be selected. Further, while the comments presume that the applicant proposes a specific activity and then performs an alternatives analysis, it is also possi ble that the applicant performs an alternatives analysis and subsequently identifies the alternative to propose, informed by that analysis.

EPA disagrees with comment s that the requirement for a detailed, EPA

- directed alternatives analysis unnecessarily in terferes with the primacy of the states with respect to the establishment of WQS . The final rule does not require a specific level of detail for analysis of alternatives, and the preamble explains that the detail of the analysis can be commensurate with th e magnitude of the project. The final rule does not put EPA in the position of directing states ’ and tribes ’ analyses of alternatives , and as discussed in section D, the preamble says that while states and authorized tribes are responsible for making a fin ding to allow a lowering of water quality based on a reasonable, credible, and adequate analysis of alternatives, they need not conduct the analysis or select the alternative themselves States and authorized tribes continue to have the primary role in esta blishing their Tier 2 review protocols andChapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

making their own Tier 2 decisions. The final rule provides a balance between increased specificity in the federal requirement to assure implementation of antidegradation requirements is consistent with the CWA and regulations and retaining state and authorized tribal flexibility to make decisions within that framework.



### H. **Comments T**  **hat the R**  **equirements A re**  **T oo**  **V ague and**  **W ill**  **L ead to**  **L itigation** 

EPA received comments that the requirement for alternatives analysis was vague and confusing, and would therefore lead to litigation on the federal level and the state and authorized tribal level. Commenters attributed the “ vagueness ” to a variety of causes: that the proposal did not identify how

s tates and authorized tribes were to choose among less degrading alternatives, that it did not explain what the “ holistic ” analysis described in the preamble must consist of, that it did not identify factors that could be used to reject a less

- degrading alternative, that it did not propose regulatory definitions of

“ alternatives ” or “ practicability, ” or that it did not outline under what circumstances it is necessary to authorize degradation if a less degrading alternative is available. Commenters also attri buted the vagueness to the fact that the requirement is framed as something that must be “ ensured ” by a state ’s or authorized tribe ’ s implementation methods ( “ [s]uch methods must ensure that...the state will only make a [Tier 2 finding]...after... ” ). Commenters pointed to concerns that legal challenges could come up regarding the requirement to perform alternatives analyses, the sufficiency of alternatives analyses, which alternatives are analyzed, what constitutes ‘ practicable ’ and how much evidence is needed to prove an alternative is “ not practicable, ” what is “ minimally degraded, ” which alternative is chosen, and the Tier 2 applicability to waters listed as “ impaired ” under 303(d) (for a discussion on the potential for having to conduct antidegradation reviews for impaired waters, please see response essay 7.e.i)

. Commenters stated that the proposal created a seemingly unattainable standard of review, providing potential litigants a low bar for challenges to state permitting decisions. Commenters stated that

va gueness would be a problem for both permit writers and reviewing courts, and that EPA should clarify.

EPA agrees that framing the requirement in a way that made states and authorized tribes solely responsible for conducting the analysis of alternatives and selecting the alternative was inappropriate because entities other than the state or authorized tribe may be best positioned to analyze alternatives to a proposed lowering of water quality, and the state or authorized tribe may choose to work with or empl oy another entity or multiple entities to conduct the analysis of alternatives. The final rule makes clear that the state or authorized tribe need not conduct the analysis of alternatives itself as long as it makes the ultimate finding to allow or not allow a lowering of water quality based on its consideration of the analysis of alternatives. The final rule does not frame the requirement in terms of something that must be “ ensured ” by states ’ and authorized tribes ’ implementation methods. However, EPA disagrees that additional clarity is needed. EPA recognizes that regulatory provisions which do not provide a great deal of detail can lead to challenges for permit writers or others implementing the standards and for courts reviewing actions related to th e standards. Where the previous regulations provided no regulatory clarity on how to determine “necessity,” which could lead to challenge, t he final regulation provides more clarity on what “necessary” means. Short of making the regulation completely
presc riptive, there is no way to prevent litigation over what exactly is required by the regulation in the future. As discussed in section G, t he final rule strikes a balance between providing boundaries and clarity on what the regulation means by the word “ nec essary,” and avoids overly prescriptive dictates to allow states and authorized tribes some flexibility to make decisions appropriate for the local situation

. EPA ’ s view is that the level of detail in the final rule is appropriate for the regulation, while guidance is more appropriate for describing the specifics of how states and authorized tribes could conduct theirChapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

analyses. Commenters stated that some of the details that EPA explained in the proposal preamble were critical to help addressing the vaguene ss. EPA agrees and the final rule preamble provides additional and important information to which co

- regulators and the regulated community can look for additional guidance . States and authorized tribes have the ability to reduce uncertainty for regulated entities in their jurisdictions by providing additional rules or guidance in their own antidegradation implementation methods that are complement but are more detailed than the federal requirements. EPA will consider providing additional guidance on antide gradation after publication of the final rule.

One commenter specifically expanded on the concern of vagueness by specifying that the necessity determination should be focused on the general necessity for the project and not on the necessity to establish any particular effluent limit. In this view, whenever it is necessary to authorize a new or expanded discharge, it is necessary to authorize a lowering of high water quality, however small. EPA disagrees. The final rule requires the state or authorized trib e to specifically allow a lowering of water quality (e.g., via specific effluent limits) if that degradation is “necessary.” The comment er said that if EPA believes that “ necessity is about specific effluent limitations, then EPA must be clear where

“ neces sary ” is on the “ spectrum between ‘ mere convenience ’ and ‘ absolute physical necessity. ’ EPA does not interpret its provision on “ necessary ” to mean “ absolutely necessary ” as the regulations clearly indicate that degradation may be allowed if necessary to accommodate important economic or social development. Interpreting it as “ absolute ” would mean that there is no flexibility and thus the least degrading alternative must b e selected for implementation in all cases. The final rule does not require selecting the least degrading alternative. As discussed in section C of this response essay and response essay 7.e.iv, rather than requiring the least degrading practicable alterna tive, the selected alternative must be practicable, and states and authorized tribes have flexibility to choose among practicable alternatives based on considerations of economics and other environmental and social impacts.



### I. **Comments Q**  **uestioning the R**  **ela tionship of**  **A ntidegradation**  **A lternatives**  **A nalysis and N**  **ational E**  **nvironmental P**  **olicy A**  **ct , 404, and 401**  **C ertifications** 

Commenters requested clarification for how the proposed requirement for Tier 2 analysis of alternatives would apply in the case of a federa l activity such as a water supply project subject to the National Environmental Policy Act (NEPA) process and 401 certification. Commenters asked how the antidegradation requirement would fit with either the NEPA “ purpose and need ” statement of the project proponent or the indepen dent NEPA alternatives analysis. EPA also acknowledges comments stating that where a state conducts a 401 certification of a 404 permit issued by the Army Corps of Engineers, the Tier 2 review requirement f or analysis of alternatives could overlap with the alternatives analysis required under NEPA and the alternatives analysis required by 404 permitting. This means that three separate forms of alternatives analysis would be conducted by separate agencies, an d that while the analyses may be slightly different in scope, they are likely to be similar. EPA agrees that this is a possible outcome but, as discussed below, each analysis can inform the other.

The “ analysis of alternatives ” required as part of Tier 2 r eviews (in section 131.12) is distinct from an alternatives analysis required in other programs, such as NEPA and CWA section 404 permitting

. When a federally initiated activity such as a water supply project is proposed, NEPA requires an evaluation of the project ’ s possible environmental effects. If the initial evaluation finds that it would have significant effects, or that it is unknown whether it would have significant effects, further analysis is required, including an analysis of alternatives to the environmental impacts. Regardless of the specific analyses required for a specific project under NEPA, if the project would impact water quality, it would be subject to 401 certification by the relevant state or authorized tribe. If the state or authorized tribe found thatChapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

the project as proposed would not be consistent with its WQS, the state or authorized tribe could deny certification and prevent the project. Alternatively, it could condition the certification in order to require additional measures to protect water quality consistent with its WQS.

In order to allow degradation that is consistent with WQS requirements, Tier 2 reviews must be consistent with section 131.12 and the state ’ s or authorized tribe ’ s own Tier 2 policy. The requirement for an alternatives analysis under NEPA is not equivalent to the requirements of section 131.12 for Tier 2 analysis of alternatives. Therefore, it cannot necessarily serve to fulfill the requirements at section 131.12(a)(2) . Additionally, some projects subject to NEPA are found to have “ no significant impact ” in the initial evaluation, exempting them from NEPA alternatives analysis. Because NEPA does not specifically focus on impacts to water , having “ no significant impact ” to the “ environment ” under NEPA does not mean that the project would not degrade water quality at all, or that it would not degrade water quality beyond what a state or authorized tribe considers de minimis . Thus, even if NEPA does not require an alternatives analysis for a project, a state ’ s or auth orized tribe ’ s antidegradation requirements may still require a Tier 2 analysis of alternatives for that project.

While another analysi s , such as a NEPA alternatives analysis, is not necessarily a substitute for an antidegradation analysis of alternatives , i nformation and analyse s gathered in the context of other statutory and regulatory programs can potentially inform a Tier 2 analysis of alternatives. On a case

- by

case basis, states and authorized tribes may choose to leverage this information to streamli ne their decision

- making processes to allow degradation of high quality waters.

In the case of activities subject to NEPA and 401 certification, the relevant state or authorized tribe has the power to use 401 certification to ensure that activities are consistent with the relevant WQS including antidegradation. It is likely in the project proponent ’ s and the state ’ s or authorized tribe ’s interest to coordinate early on. Such coordination can help streamline the requirements

. EPA disagrees with comments stat ing that the proposal would turn an antidegradation analysis of alternatives into a NEPA

- like process because it would obligate a state to reject a proposal if there is a

non - or minimally

- degrading practicable alternative, and because alternatives analysi s would be required to consider cross

- media impacts. Under the final rule, states and authorized tribes need not abandon a project altogether simply because the y identify a range of p racticable alternative s that would prevent or lessen the degradation asso ciated with the proposed activity. The state or authorized tribe may make a finding to allow the project to continue as long as one of the less - or non

- degrading alternatives identified in the range is selected for implementation. As discussed in section E of this essay, t he final rule does not require consideration of cross

- media impacts. EPA encourages consideration of cross

- media impacts when states are deciding whether to allow a lowering of high water quality. Information from a NEPA review could help inform consideration of cross

- media impacts in a Tier 2 analysis of alternatives.

EPA agrees with comments stating that the examples of alternatives cited in the proposal preamble go beyond evaluation of whether more effective wastewater treatment technolo gies are technically and affordably available, but disagrees that it means the rule requires a NEPA

- like alternative review analysis. The comment states that states and authorized tribes would potentially take the additional step of mandating process chang es and/or business choices for the permittee unrelated to wastewater treatment technologies. EPA agrees that this is a possible outcome but not due to the regulatory requirements but because the states and authorized tribes choose s. Even prior to the revis ions made in this final rule, the federal antidegradation regulation gives states and authorized tribes the authority toChapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

make decisions about whether to allow lowering of high water quality (and if so, how much)

. Commenters stated antidegradation reviews should at most involve consideration of cost

- effective and available wastewater treatment technologies that could reduce the degradation of a project as proposed, and that states and authorized tribes should not be in the business of directing industries as to how to manufacture products or whether such products may even be permissibly produced as a part of an antidegradation review. The final rule does not mandate that states and authorized tribes make choices mandating process changes and/or business choic es for the permittee unrelated to wastewater treatment technologies. But, states and authorized tribes have the discretion to determine what is required before allowing a lowering of high water quality. In addition, section D explains EPA ’ s final rule makes clear that states and authorized tribes are responsible for making a finding that a lowering is necessary before allowing a lowering of high water quality but are not necessarily required to conduct the analysis of alternatives or select the alternat ive to be implemented, themselves.



### J. **Comments Q**  **uestioning the R**  **elationship to A**  **ccommodation of S**  **ocial or E**  **conomic D**  **evelopment**
EPA disagrees with comments stating that the proposed alternatives analysis requirement would be inconsistent with the intent of considering the accommodation of important economic and social development. Commenters expressed concern that the requirement limited state and authorized tribal flexibility and specifically asked how the requirement to find degradation “ necessary to accom modate important economic or social development ” relate to the analysis of alternatives and social and economic development. Commenters also asked whether the state or authorized tribe must find the most protective alternative that would accommodate econom ic or social development, and what states and authorized tribes are supposed to do if there is a less degrading alternative but they have no authority to require it. The preamble to the final rule explains that the finding to allow degradation is composed of two analyses: the analysis of alternatives, and the social/ EA , and that these may be performed in whichever order the state or authorized tribe chooses. The rule does not require states to mandate that the “ least degrading ” practicable alternative be se lected for implementation, as discussed further in response essay 7.e.iv. Therefore, states and authorized tribes still have some flexibility to determine what is “ necessary to accommodate important economic or social development .” Through the analysis of alternatives, states and authorized tribes must require implementation of a practicable less or non

- degrading alternative in order to make a finding that lowering high water quality is necessary before authorizing that lowering . In cases where they do not have authority to require a particular alternative to occur (e.g., if the alternative relates to requirements for NPS , but the state itself does not have mandatory restrictions on NPS ), they might determine that such an alternative is not practicable (e.g. , if implementing it would force the state or authorized tribe to allocate unreasonable amounts of funding).

Comment er s asked for clarity regarding what level of social and economic development could be used to justify degradation of high quality waters. EPA is not responding to these comments as these comments are beyond the scope of this rulemaking
, which is focused solely on how to identify high quality waters, requirements to conduct an alternatives analysis and to select a practicable alternative from a range to implement, and transparency regarding antidegradation decisions and development and revision of implementation methods. EPA did not propose or solicit comment on what level of social and economic development could be used to justify degradation of high quality waters and the final rule does not alter the discretion States and authorized tribes continue to have in relation to these decisions.Chapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

Comments stated that the EPA should not promote use of its 1995 Draft Interim Economic Guidance for Water Quality Standards. On the other hand, a comment stated that the 1995 Draft Interim Guidance may be useful in evaluating the alternatives to determine if a degrading alternative is necessary to accomplish the proposed activity. EPA appreciates the specific comments received, however EPA is not revising the Draft Interim Economic Guidance as part of this rulemaking. In addition, the document is not cited in EPA ’ s regulatory language. Therefore, states and authorized tribes are not required to use the processes described in it when conducting their Tier 2 reviews, designating uses, adopting variances, or for any other WQs purposes, although states and authorized tribes may find it useful in informing WQS decisions . In regards to using the Draft Interim Economic Guidance when revising designated uses or adopting WQS variances, these comments are outside the scope of this rulemaking because the guidance is intended to assist states and authorized tribes in determining whether attaining the designated use is not feasible because “ controls more stringent than those required by sections 301(b) and 306 of the Act would result in substantial and widespread economic and social impact .” EPA did not propose or solicit comment on this issue and the final rule does not chan ge the regulation s in regards to this issue. EPA will consider whether additional or revised guidance is needed in regards to evaluating economic considerations after the final rule is published.

Commenters suggested that EPA ’ s rule continue to cost

- effect iveness to be an important factor considered when selecting an alternative to be implemented since requiring a discharger to expend funds up to or near the thresholds expressed in the 1995 Interim Guidance for a minor improvement in surface water quality i s a concerning policy. As discussed throughout this essay, specifically in sections C, D, and G, the final rule does allow cost

- effectiveness to be considered when determining whether a lowering of high water quality is necessary

.



### K. **Comments T**  **hat the T**  **ype and**  **N umber of**  **A lternatives**  **T hat**  **M ust**  **B e**  **E valuated I**  **s E**  **xcessive and EPA**  **’ s Requirement to E**  **valuate Them Go**  **es b**  **eyond C**  **lean W**  **ater A**  **ct A**  **uthority**
EPA received many comments related to the practicable alternatives that must be evaluated under section 131.12(a)( 2). The comments ranged from questioning the types of alternatives to how many alternatives that need to be evaluated.

With regard to the type of alternatives that need to be evaluated, EPA disagrees with comments that a

“ practicable alternative ” goes beyo nd wastewater options and into considerations most states are not authorized to make and beyond the intent of the CWA. The final rule does not require states and authorized tribes to consider non

- wastewater options, if they can identify a range of practica ble alternatives related to wastewater options. The proposal provided an exhaustive list of types of alternatives that can be considered when developing a “ range of practicable alternatives that would prevent or lessen degradation ” as specified in the final rule. Specifically, EPA said “ ...this evaluation would include a consideration of any non

- degrading or minimally degrading cost

- effective pollution prevention alternatives and enhanced treatment techniques, but would not be limited to those. For example, a lternatives could include no discharge, pollution prevention measures, process changes, reduction in the scale of the project, advanced or different treatment technologies, water recycling and reuse, land application, seasonal or controlled discharge options avoiding critical water quality periods, and alternative discharge locations, if such measures were practicable. ” While it is true that “ practicable alternatives ” can be broadly interpreted, EPA ’ s final rule requires a range of practicable alternatives to be identified, not every practicable alternative

.Chapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

EPA also disagrees with comments that the inclusion of NPS controls in the list of alternatives that could be considered exceeds EPA ’ s statutory authority under the CWA. One commenter stated that the
pro posed requirement for alternative s analysis refers directly to section 131.12(a)(2), which explicitly requires states to pursue “ all cost

- effective and reasonable best management practices for non

- point source control. ” EPA disagrees with this interpretation of language that existed prior to this final rule. The proposal did not propose, and the final rule does not finalize, any changes to section 131.12(a)(2) with regard to NPS controls. Again, EPA ’ s preamble statements were intended solely as a list of options that can be considered when developing a range of practicable alternatives. The language that is unaffected by this final rule and which is still in effect says that when allowing degradation, “ the State shall assure that there shall be achieved...all cost

- effective and reasonable best management practices for nonpoint source control. This requirement is separate from the analysis of alternatives. Neither the revisions in today ’ s rule nor the preexisting requirement requires states and authorized tribes to establish and implement best management practices for nonpoint sources before allowing degradation of high quality waters. A 1994 memo explains how EPA interprets the preexisting requirement to

“ assure that there shall be achieved the highest statutory and regulatory requirements for... all cost

effective and reasonable best management practices for nonpoint source controls ”: http://water.epa.gov/scitech/swguidance/standards/upload/2006_12_01_standards_antidegmemo.pdf

. Please see response essay 7.g.ii for additional discussion.

EPA disagrees with comments stating that EPA ’ s statement that “ impacts beyond the direct effects on
water quality, such as cross

- media impacts ” should be considered when selecting which alternative to implement is a mandate exceeding EPA ’ s CWA

- granted authority. Preamble statements are not mandates, they offer EPA ’ s policy statements and recommendations to hel p guide states and authorized tribes when implementing EPA ’ s regulations. The preamble to the final rule put s this statement in the context of allowing states and authorized tribes the flexibility to balance multiple considerations, such as cross media imp acts, when deciding whether to make a finding that a lowering of high water quality is necessary. Please see response essay 7.e.iv for additional discussion on selecting an alternative to implement.

A comment suggested that the rule require only that a sta te evaluate reasonable and cost

- effective measures that would reduce or eliminate the potential degradation, rather than requiring the sort of

“ complex alternatives analysis apparently contemplated ” by the rule. The final rule requirement requires that analyses evaluate a “ range of practicable alternatives ” that could prevent or lessen degradation. As discussed below, i t does not require that every single practicable alternative must be considered, a s long as a range is considered, nor does it require that the analyses be “ complex. ” In situations with multiple practicable alternatives, it is possible that the analysis could be limited to those that the entity conducting the analysis finds to be reasonable and cost

- effective, provided the analysis considers a range of alternatives

. EPA agrees with comments stating that the concept of “ practicable ” should include whether alternative options that would reduce degradation are available to the permit applic ant and whether they are appropriate for the type of discharge. Based on comments received, the final preamble explains that the final rule contains a definition of “ practicable, ” and that the definition embodies a common sense notion of practicability – i .e., an alternative that can actually be implemented under the circumstances. See preamble to the final rule for more information.Chapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

With regard to how many alternatives must be evaluated, EPA agrees with comments stating that the analysis of alternatives ma y incorporate a range of practicable options, but should not require an evaluation of all possible options. Commenters further said that as long as the alternatives analysis meets the requirement of presenting a valid range of practicable alternatives, the review process should
not have to be restarted if a new option is identified. The final rule does not require all possible options be considered. In addition, the required public process and intergovernmental coordination for Tier 2 reviews provide the op portunity for the public and stakeholders to examine the preliminary analyses and to raise concerns or questions about possible new options.

EPA received comments that the range of alternatives should be a range of non

- degrading, minimally degrading and less degrading alternatives as opposed to a range of non

- degrading and minimally degrading because there was concern that certain alternatives that were less degrading but not minimally degrad ing would not be considered . If a state or authorized tribe only h ad to consider alternatives that were non

- degrading or “ minimally degrading ” (in the sense of “ very close to non

degrading), they would not consider other alternatives that aren ’ t “ very close to non

- degrading, ” but still would prevent some degradation. Ignoring those alternatives could lead to a finding that degradation is necessary, when if the other alternatives had been considered, the degradation could have been avoided. EPA agree s and the final rule requires the analysis to identify a “ range of practicable alternatives that would prevent or lessen degradation ,” to broaden the range of alternatives available for selection.



### L **. Relationship to the G reat**  **L akes**  **Initiative R ule at**  **P art 132** 

EPA received comments that EP A’ s preamble to the proposed rule suggests that the analysis of alternatives requirement is the same as required for waters covered by the Great Lakes regulation (40 CFR P art 132, appendix E)

. Commenters said that EPA cannot apply the requirements for the Great Lakes Waters to waters n ot covered by Part 132, especially those “ states already implementing appropriate antidegradation analysis programs through their permit programs. ”

EPA agrees that it cannot apply the requirements at Part 132 to waters not cov ered by Part 132. However, EPA disagrees that the proposal and final rule apply the Part 132 requirements to all waters. EPA ’ s intent of the rule was not to apply the Part 132 regulations nationally. While the final rule has some similarities to Part 132, it is not the same and this rule does not change the applicability of Part 132

. The regulation at section 131.5 (a)(5) makes clear that States and authorized tribes with waters in the Great Lakes Basin must comply with the requirements of 131.6 and the requirements of Part 132. EPA did not propose or finalize any revisions to this provision.

EPA considered a comment that the concept set forth in the Great Lakes Initiative (GLI) , Appendix E at Part 132 is more sensible tha n what EPA proposed for analysis of alternatives in the proposed rule at Part 131 . The commenter pointed out that the GLI requires that states and authorized tribes use the alternatives analysis and other information to inform the decision on whether degradation is necessary, but does not sp ecifically requir e selection of an alternative. Commenters seemed to interpret the lack of a specific requirement in Part 132 to select an alternative as meaning that states and authorized tribes should never be required to select an alternative, and preferred the analysis of alternatives to simply provide a source of information to guide agency decision

- making. While it is true that the analysis described in Part 132 is useful to guide decision

- making, PA disagrees with commenters ’ interpretationChapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

of the requirement in Part 132 as being limited to information that can be used as guidance at the
state ’ s or authorized tribe ’ s discretion. If a practicable alternative is less degrading or not degrading than the proposed degradation, the state or authorized tribe would not have an appropriate justification for calling the proposed degradation “ necessary. ” This is true under Part 131 and under Part 131. Thus, the requirement at Part 132 is consistent with the requirement for analysis of alternatives in the final ru le. The regulation at section 131.5 (a)(5) makes clear that s tates and authorized tribes with waters in the Great Lakes Basin must comply with the requirements of 131.6 and the requirements of Part 132. For more information, see response essay 7.k.



### M. **Comm ents on**  **E xisting**  **Use and I**  **mplementation of Title**  **40 of the**  C ode of F

ederal R egulations **Section 131.12(a)(1)** 

EPA received comments on existing uses and the implementation of 40 CFR section 131.12(a)(1) , the section of antidegradation regulation dealing with existing uses protection

. Although EPA did propose minor edits to the provisions at 131.10 regarding existing uses, those proposed changes were restricted in scope to two specific and limited interpretations regarding existing uses in the context of state s and authorized tribes adopting and changing designated uses. EPA responded in essay 5.d to the comments received on these interpretations. EPA did not propose or solicit comments on the requirement in section 131.12(a)(1) regarding antidegradation “ Tier 1” protection of existing uses, and the final rule does not alter anything in relation to that requirement. Thus, a ll remaining comments on existing uses are outside the scope of this rulemaking

.



### N. **Comments Q**  **uestioning the C**  **ontext in**  **W hich**  **A ntidegradation**  **R eview**  **s O**  **ccur**

Comments stated that the proposed rule text is not clear on how or when the antidegradation “ review ” process would take place, and that states and authorized tribes have different practices for this. EPA recognizes that t ypically antidegradation review occurs in the context of a proposed activity and that a
state or authorized tribe choos ing to allow a lower water quality so the proposed activity can go forward . For example, a state or authorized tribe could either conduct (or have another entity conduct) a Tier 2 review of a proposed discharge on a high quality water for which a new NPDES permit is contemplated, or for a proposed increase in an existing NPDES permitted discharge. However, antidegradation protection is broadly applicable to water bodies, not just to specific activities causing changes to water quality. Thus, antidegradation review should and does occur for many other different types of activities including activities permitted under CWA 404 and activities subject to CWA 401 certification. States and authorized tribes are familiar with the precise mechanics of when and exactly how antidegradation review takes place in their jurisdictions based on their own administrative processes and the circumstances of the activity that would lower water quality. EPA finds that allowing states and authorized tribes discretion on the mechanics of when and how antidegradation Tier 2 review takes place is preferable for this reason, as an appropriate exercise of cooperative federalism. In add i tion
, EPA points out that antidegradation protection is not limited to Tier 2 review. Even when a Tier 2 review is not triggered (for example, if a discharge would affect a water without Tier 2 protection), the federal regulation requires that state s’ and authorized tribes ’ antidegradation policies provide Tier 1 protection for existing uses applies to all waters of the U.S.

A comment requested that EPA clarify that antidegradation is a WQS issue to be handled under the WQS program and not under the NPDES program, because there is no direct relationship between the permit limit setting process and the antidegradation policy. The commenter cited to 40 CFR section 122.44(d) ofChapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

the NPDES permitting regulation as evidence that NPDES permit limits are base d on water quality criteria to protect designated uses, but do not include any provision where limits are based upon antidegradation. EPA disagrees with this characterization and is clarifying here that while states and authorized tribes indeed handle anti degradation in their WQS by writing antidegradation policies, implementation of antidegradation occurs in the context of allowing lowering of high water quality, such as an NPDES permit. WQS do not in and of themselves allow lowering of water quality. They are simply requirements articulating how states and authorized tribes will protect their water quality. When a state or authorized tribe is presented with decisions about allowing activities that can affect water quality, they look to their WQS to inform the issuance of permits or licenses allowing effects on water quality. Specific to the NPDES context, EPA points to 122.44(d)(1), which describes WQS and state requirements as any requirements in addition to or more stringent that promulgated technology based limits necessary to “ achieve water quality standards established under section 303 of the CWA... ” Further, at 122.44(d)(1)(vii), the regulation requires that “ [w]hen developing water quality

- based effluent limits under this paragraph the permitting auth ority shall ensure that: (A) The level of water quality to be achieved by limits on point sources established under this paragraph is derived from, and complies with all applicable water quality standards. ” While it is true that most of the provisions of 1 22.44(d) focus on details of calculating WQBELs based on criteria, antidegradation is part of the WQS established under section 303 of the CWA, therefore WQBELs must achieve antidegradation requirements.

EPA ’ s NPDES Permit Writer ’ s manual contains more inf ormation on the connection between antidegradation and writing WQBELs. http://water.epa.gov/polwaste/npdes/basics/NPDES

- Permit

- Writers

- Manual.cfm



### O. Comments **r egarding**  **D efining**  **“P racticable**  **” and**  **O ther**  **T erms**  **R elated to the**  **R equirements at**  **Section 131.12(a)(2)**
EPA agrees with comments requesting that the rule define the term “ practicable, ” and has thus included a definition in the final rule.

Commenters requested that EPA define more clearly or explain by what standard various words would be objectively evaluated, for example “ available, ” “ possible, ” “ economically viable, ” “ degradation, ”

“ minimally degrading, ” “ non

- degrading, ” “ alternatives analysis, ” and “ practica ble alternative. ” The final rule provides a definition for “ practicable ” as requested by multiple commenters, and the preamble discussion provides a description of what constitutes “ analysis of alternatives ” (called “ alternatives analysis ” in the proposed rule). F urther federal definitions are unnecessary as common and plain dictionary definitions of the words included in the final rule provide states and authorized tribes enough guidance to implement the regulations . States and authorized tribes have the ability to define terms in their own antidegradation programs as needed, provided those definitions are not inconsistent with the requirements of the CWA and the WQS regulation. EPA specifically disagrees with a comment requesting that EPA define, at a minimum, the term “ degradation ” as a permanent, measurable lowering of water quality as a result of a point source discharge. Point sources and NPS can cause degradation of water quality, and to define degradation as only occurring due to poin t sources would not only narrow the definition in a manner inconsistent with the CWA and the WQS regulation at 40 CFR P art 131 because for all WQS, the standards apply to the waterbody, not the source. While commenters requested that EPA define more clearl y “ practical alternative, ” the word “ practical ” is not included in the final regulation.Chapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

Comments requested that EPA replace the word “ possible ” with “ feasible ” in the definition of

“ practicable ” described in the preamble to the proposal ( “ the alternatives considered must be available for the proposed activity, technologically possible, able to be done or put into practice successfully at the site in question, and economically viable. ”) Commenters stated that their objection was b ecause some alternatives that are possible are not always feasible. EPA agrees in principle that some alternatives that are possible may not be feasible but disagrees that the word “ possible ” should be replaced with “ feasible ” in the definition of “ practicable. ” EPA determined tha t it was unnecessary to change “ possible ” to “ feasible ” because the terms are synonyms: Merriam

- Webster defines “ feasible ”

as “ possible to do. ” The final rule contains a definition of “ practicable ” similar to that proposed (see definition at section 131.3( n)) , and does not require selection of alternatives that are not “ feasible .”

EPA disagrees with comments requesting that the definition of “ practicable ” include evaluation of non

water quality impacts of each alternative to be evaluated. EPA determined tha t the definition of

“ practicable ” should not include evaluation of non

- water quality impacts because non

- water quality impacts may be considered by the state and/or discharger when choosing among practicable alternative s . Therefore, EPA found it was more appropriate for “ practicable ” to be a broader definition by not including consideration of non

- water quality impacts so that the decision

- makers could more fully consider alternatives that may have non

- water quality impacts in the analysis of alternatives. Decision

- makers could then b alance those considerations during the analysis, rather than potentially excluding those alternatives upfront (by not considering alternatives with non

- water quality impacts to be “ practicable ”) . As stated in the preamble, however, EPA recommends that stat es and authorized tribes consider cross

- media impacts and where possible, seek alternatives that minimize degradation of water quality and also minimize other environmental impacts. Since it may not always be possible to consider alternatives that do not c ause some non

- water quality impacts, EPA chose not to include this condition on whether or not the alternative is practicable. The preamble to the final rule describes how other environmental impacts can be considered when choosing among practicable altern atives to implement.

Commenters asked for clarification on what the standard would be for an “ economically viable alternative ” and asked whether an economically “ viable ” alternative would include not proceeding with a proposed project. EPA ’ s view is that a state or authorized tribe could consider alternatives including not proceeding with the project when deciding whether to allow a lowering of high water quality. EPA does not specifically require consideration of any particular alternative or exclude consi deration of a particular alternative, such whether to proceed or not to proceed with an activity/project. As stated in the preamble to the final rule , w hen deciding whether to allow a lowering of high water quality, States and authorized tribes are responsible for making their finding based on a “ reasonable, credible, and adequate analysis of alternatives. ” Therefore it is the state or authorized tribe ’ s responsibility for ensuring they have a sufficient range of practicable alternatives to back up their fi nding.

EPA disagrees with comments that the term “ economically viable ” should be replaced with “ affordable. ” The common definitions of “ affordable ” include concepts like “ costing little ” (Merriam Webster). Alternatives to degradation do not always “ cost li ttle. ” A common definition of “ economically viable ” would include concepts like “ capable of being done in a manner that uses resources efficiently ” (Merriam Webster). W hile “ economically viable ” and “ affordable ” have similar meanings, the former is more accurate in this context because it is important to choose alternatives that are both effective and take cost into consideration in relation to the project and circumstances

. In response to commenters to make this explicit, the final rule includes a formal definition of “ practicable ” at section 131.3 (n) that includes the concept of “ economic viability ” in addition to “ technologically possible ” and “ able to be putChapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

into practice ” all of which reflect the intent that the alternatives identified must be both effective and affordable

. Commenters stated that with respect to wastewater treatment technologies, an economically “ viable ” technology could be construed as one that could be implemented even if it precluded the company from making any reasonable profit on a venture. EPA does not construe “ economically viable ” in such a way. Common dictionary definitions for “ viable ” include concepts like “ financially sustainable ” (Merriam Webster) “ capable of working successfully, ” and “ feasible ” (Oxford.) EPA ’ s intention with the term

“ economically viable ” is that the alternative can be achieved and any additional costs to implementing the alternative can be afforded. EPA agrees with a comment suggesting that to be economically via ble, an alternative must be one that can be implemented at a reasonable cost to the regulated entity in light of that entity ’ s finances or without causing a substantial hardship to the entity or its customers. If a private entity proposes an activity that would lower water quality and conducts an analysis of alternatives, EPA would not expect the entity to consider alternatives that would preclude any profit.

EPA also agrees with commenters that dischargers, states and authorized tribes need not undertake

u nnecessarily costly actions that produce nominal additional environmental benefit ; however the final rule does not require them to do so. The final rule allows the entity conducting an analysis of alternatives to choose among a range of practicable ( defini tion of which includes “ economically viable ” ) alternatives. When choosing among them, they may consider costs and benefits, as well as other considerations. They may also choose not to consider cost

- benefit calculations.

EPA points out that states and auth orized tribes are ultimately responsible for making the decisions about the alternative selected to be implemented and whether to allow degradation because a lowering of high water quality is necessary. They need not rely solely on an analysis presented by a private entity; they may consider other practicable alternatives or request analyses from different entities. Also, economic considerations are inherently different for publicly owned utilities, where profit is not a primary objective. States and authorized tribes also have the discretion to require facilities to take more costly actions, which may not necessarily fit a set cost

- benefit ratio, as a condition of allowing degradation. EPA ’ s Interim Economic Guidance provides suggested guidelines for making decisions about economic considerations.

EPA considered a comment providing the example of reverse osmosis to remove miniscule concentrations as a non

- practicable alternative. The comment stated that preparing such an alternative should not be imposed on the discharger performing the alternatives analysis, bec ause it is a misallocation of resources. The final rule does not require analysis and identification of non

- practicable alternatives. While reverse osmosis can be costly, in some cases it may be practicable. R everse osmosis
may be considered practicable in some instances, but the practicability of the technique depend s on site

- specific considerations.

EPA disagrees with a comment supporting evaluating whether an alternative is “ available ” or

“ technologically possible ” based on what is “ commonly achievable ” within the industry of the regulated entity. There may be practicable alternatives that, while not commonly achievable within the industry of the regulated entity, could be achievable and implemented effectively in some cases.

EPA disagrees with a comment stating that the proposed requirement for Tier 2 analysis of “ practicable ” alternatives is in “ sharp contrast ” to the local control and flexibility already codified in the CWA and related regulations. The commenter also stated that the “ practicability ” standard exposed businesses toChapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

a crippling lack of regulatory certainty. The comment er did not provide evidence for these assertions

. The final rule actually preserves local control and flexibility. The structure of the federal antidegradation requirement specifically allows for states and authorized tribes to make the ultimate decision about whether to allow a lowering of high water quality based on a reasonable, credible, and adequate analysis of alternatives , and if so how much depending on the case spe cific situation. The final rule does not change this discretion and flexibility

. EPA disagrees with comments requesting that the final rule remove the term “ practicable ” from the description of alternatives that must be evaluated in Tier 2 review because t he word is not appropriate to this context. Commenters did not provide additional analysis to support that assertion

. However, EPA found that inclusion of the term “ practicable ” is appropriate to achieve the goals of the Act and to provide clarity for deci sion

- makers using the alternatives analysis. EPA agrees with comments that the
term “ practicable ” is used elsewhere in the CWA framework, and that EPA ’ s definition is different from the definition of the same word in other EPA regulations. For this reason, the final rule defines

“ practicable ” as “ in the context of § 131.12(a)(2)(ii), means technologically possible, able to be put into practice, and economically viable. ” (S ection 131.3(n)). The final rule specifically explains that this definition is only for the context of Tier 2 review. The CWA does not require that different regulations define terms identically.

EPA disagrees with a suggestion to define “ practicable ” as wastewa ter treatment technology that is proven to be effective and implementable at the facility at a reasonable cost in light of the project purpose. EPA ’ s view is that this is an overly narrow interpretation of the range of alternatives that should be considere d. After consideration of the comments and stakeholder input, EPA determined it was reasonable to structure t he rule to allow consideration of alternatives beyond traditional wastewater treatment technology, and allows for a state or tribe to potentially consider alternatives not related to the project purposes (e.g., not allowing the discharge.)

A commenter specifically pointed out that the regulation at section 230 for s ection 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material requires examination of practicable alternatives to the proposed discharge, and explains that “ practicable ” in that context means “ available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. ” The commenter suggested that EPA should, at a minimum, add “ in light of overall project purposes ” to the definition of “ practicable ” in the final rule provision regarding Tier 2 analysis of alternatives, since these purposes are critical to a meaningful analysis of alternatives. EPA disagrees that the addition of the phrase “ overall project purpose ” to the definition of practicable is necessary. The definition of practicable in section 131.3(n) is “ in the context of section 131 .12(a)(2)(ii), means technologically possible, able to be put into practice, and economically viable. ” As stated in the preamble, this definition embodies a common sense notion of practicability (i.e., an alternative that can actually be implemented under the circumstances.) Thus, EPA expects that in most cases, the entity performing the analysis and the state would analyze practicable alternatives that take into account the purpose of the proposed activity; however, as stated in the preamble, it is possibl e for the alternatives analyzed to include an alternative that prevents degradation (and therefore may not be in line with the overall project purpose). Per section 131.12, a state or authorized tribe has the authority to decide to allow the lowering only if a practicable alternative that would prevent degradation of high quality waters is selected to be implemented, even if it means that that the overall project purposes will not be fulfilled.Chapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

EPA considered the specific examples provided by commenters as evidence of difficulty in selecting and implementing a “ practicable ” alternative, such as an example of petroleum refineries where technologically possible alternatives for controlling inorganic constituents in effluent (for example by reverse osmosis) can lead to practical difficulties such as the need to dispose of salt residuals and install substantial tertiary treatment upstream of desalinization. Under the final rule, states and authorized tribes have the flexibility to decide whether to allow a loweri ng of high water quality and how much, after a public process, based on a reasonable, credible, and adequate analysis of alternatives, rather than being forced to require selection of the least degrading practicable alternative. This allows for consideration of additional factors such as whether an alternative would cause cross

- media problems in areas other than water quality (such as excess residuals that require additional treatment ) . If another practicable alternative has fewer adverse effects , it could be selected for implementation instead.

EPA disagrees with a comment stat ing that the description of “ practicable ” in the proposal preamble is an inadequate basis for Tier 2 evaluations because CWA does not use the term “ technologically possible ” as the basis for setting WQBELs . Tier 2 alternatives analyses do not result directly in WQBELs ; they are used to inform decisions about whether to allow a lowering of high water quality based on the alternatives to degradation that are practicable. Once an alternative has been selected for implementation and the state or authorized tribe has chosen to authorize the lower, the selected alternative may result in WQBELs more stringent than would otherwise have been allowed. However, identification of practicable alternatives
, does not in and of itself , set WQBELs . That the CWA does not include the term “ technologically possible ” in the context of its discussion of setting WQBELs does not preclude EPA from requiring consideration of alternatives that are “ tech nologically possible ” when conducting a Tier 2 alternatives analysis

. EPA disagrees with comments recommending that the final regulation require the evaluation of control alternatives to be based on the CWA factors used for best practicable control technology currently available (BPT), BAT
, and NSPS. National regulations for industrial wastewater disc harges set technology

- based numerical effluent limitations for specific pollutants at several levels of control: BAT, BPT, BCT, NSPS, PSNS, or PSES. Technology based e ffluent limitations are based on performance of specific technologies, but regulations do not require use of a specific control technology. Comments stated that NSPS level of effluent control relies on “ demonstrated ” technology for categories of dischargers with similar wastewater characteristics (a consideration established by statutory requi rement) and reflects consideration of cost

- effectiveness. Comments also discussed how evaluation of non

- water quality impacts of treatment alternatives is enshrined in the CWA for technology based effluent requirements (CWA 304(b) and 306), and provided sp ecific examples of how such considerations can work.

It would be inappropriate to base the WQS requirements for an analysis of alternatives, which is related to water quality

- based requirements (from CWA section 303), on technology

- based requirements (from CWA 304 and 306) which have a fundamentally different purpose in the CWA. Technology based requirements are intended to provide a standardized industry expectation for what can be achieved based on the technology available to that industry. Water quality based requirements are intended to establish discharger specific expectations for pollution control in order to meet the designated use and criteria that a state or authorized tribe has adopted for the water being discharged into. NPDES permits with effluent limitations incorporate either limitations based on the industry wide effluent standards or limitations based on the adopted WQS , whichever are more stringent. Antidegradation is part of WQS and is intended to implement the CWA objective to restore and maintain the chemical, physical and biological integrity of the nation ’ s waters

. The requirement to evaluate a range of alternatives toChapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

lowering high water quality is intended to meet this CWA goal, not to establish technology based requirements. In fact, some alternatives considered may not involve evaluating other technologies but rather other strategies. Where this is the case, limiting the alternatives considered to technology that correlates with technology based effluent standards would not meet the r equirement to identify a range of alternatives that prevent or lessen degradation . Also, even in the cases where BPT, BAT and NSPS could potentially represent less degrading alternatives for Tier 2 review, requiring them in the federal WQS regulation would reduce flexibility to consider non

- technology related alternatives. While dischargers ’ analyses typically focus on treatment technologies at the facility, a state or authorized tribe may choose to consider other alternatives appropriate to the situation (e.g., not allowing a facility to expand, land application, incineration). Furthermore, levels of control expressed in effluent guidelines that are technology

- based only exist specific to certain types of discharges. For example, NSPS exist for some industr ial facility types, but not all industrial facilities, and not for other types of dischargers that may degrade high water quality (e.g., publicly owned treatment works (POTW s) , discharges of dredged or fill material.) If the final rule on analysis of alternatives were to require evaluation of NSPS, it would not create a uniform expectation, and would potentially limit state and authorized tribal flexibility. For more informatio n on BAT, BPT, and NSPS, see: http://water.epa.gov/scitech/wastetech/guide/questions_index.cfm

.

EPA ’ s final rule provides the flexibility for states and authorized tribes to consider practicable alternatives to lowering high water quality that reflect technology

- based levels of effluent control provided those levels would prevent or lessen degradation as well as other practicable alternatives

. EPA determined it was appropriate to maintain this flexibility in the final rule because states face a variety of specific circumstances when conducting antidegradation reviews, including existing facilities that may apply for permits to expand. Faced with these varied situations, it is i mperative for states to have flexibility to consider alternatives that reflect technology

- based levels of control without EPA specifically prescribing in this WQS rule which level of technology

- based requirements must be met.



### P. **Comments a**  **bout the**  **Effect o n Existing State and A**  **uthorized Tribal Antidegradation P**  **rograms**

EPA considered comments describing the commenters ’ view of how the proposed rule differs from current practice and currently effective regulations and policies in specific states. EPA also rec eived a comment stating that a specific state ’ s antidegradation program is finally getting on track, but that the proposal, if finalized would derail it. EPA disagrees that the final rule will derail any state ’ s antidegradation program. The final rule preamble explains that while s tates and authorized tribes are subject to the requirements of today ’ s rule on the effective date of the rule, EPA ’ s expectation is that, where a new or revised requirement necessitates a change to state or aut horized tribal WQS, such revisions will occur within the next triennial review that the state or authorized tribe initiates after publication of the rule. This allows states and authorized tribes time to evaluate, and if needed, make modifications to their programs. EPA intends the final rule to strengthen state antidegradation programs and provide additional protection for high quality waters. EPA recommends states and authorized tribes evaluate their program for consistency with the final regulation at Pa rt 131.12. States and authorized tribes should work with their EPA Regional offices, which are available to assist states and tribes with any questions about the final requirements. EPA recognizes that some states and authorized tribes may need to revise t heir regulations and/or their guidance for consistency with the final rule.Chapter 3 – Response Essays 7.e.ii – Antideg Alt – Gen Opp

EPA disagrees with comments requesting that the EPA refrain from imposing specific requirements related to antidegradation analysis on states “ already in compliance with these requ irements ” because more specific requirements are not warranted in states already implementing appropriate antidegradation analyses. It is unclear whether “ these requirements ” was intended to mean the previously existing requirements of 40 CFR 131.12, or to mean the proposed requirements that would have added more detail. If it means previously existing requirements, EPA disagrees because the Agency found that further detail in the regulation was necessary for reasons explained in the proposal preamble , so s imply meeting the previously existing requirements d id not ensure a state or authorized tribe is consistent with the currently applicable federal antidegradation requirements under the final rule

. For states and authorized tribes whose programs are already consistent with the final rule requirements, EPA does not anticipate the need for changes to those programs. For example, states and authorized tribes already implementing analyses of alternatives that are consistent with the final rule ’s requirements wou ld not have to do anything additional to be consistent with the new requirements regarding analysis of alternatives.

EPA considered a comment that provided a state example of cases where the intent behind alternatives analysis is to determine whether a non

- discharging option (such as land

- application, or reuse) is viable. The comment states that this is commonly done by looking at land application of wastewater, recycle and reuse options or the possibility of converting from a direct to indirect discharge. The commenter stated that EPA ’ s proposal would take this evaluation one step further, effectively requiring a permit applicant to demonstrate, not just that there are no non

- discharging options, but also that the least degrading alternative has been selected. EPA disagrees. The proposal did not, and the final rule does not require selection of the least degrading alternative. Examining a range of practicable less degrading to

non

- degrading alternatives (such as those mentioned by the commenter), and s electing a practicable alternative would be consistent with the final rule.



### Q. Comments **r egarding the**  **A doption of**  **A ntidegradation**  **I mplementation**  **M ethods and**  **M inimum**  **E lements of**  **S uch**  **M ethods** 
For comments regarding whether EPA should require adoption of statewide antidegradation implementation methods, and the minimum requirements content of those methods, please see response essays 7.f.i. and 7.g.ii.



### R. Comments **r egarding**  **C onducting an**  **A nalysis of**  **A ltern**  **atives in A ll**  **Cases**

**v ersus D**  **egradation That Goes**  **b eyond**  D e M inimis
For comments regarding de minimis discharges, please see response essay 7.i.Chapter 3 – Response Essays 7.e.iii – Antideg Alt – Sugg Alt



## Essay 7. **e. i**  **ii –**  **Antideg radation Alternatives Analysis: Suggested**  **Alternatives That Should/Shouldn**  **’ t Be Considered** 

**A. Defining**  **“ Practicable**  **”**
The U.S. Environmental Protection Agency ( EPA ) agrees with comments supporting adding a definition of “ practicable ” similar to the proposal preamble description to the final rule. In light of these and other comments, EPA has decided to include a definition of “ practicable ” for the purposes of Title 40 of the Code of Federal Regulations ( CFR ) section 131.12 at s ection 1 31.3(n)

. EPA determined that the definition was needed to provide clarity and consistency in the implementation of s ection 131.12(a)(2)(ii).



### B **. Comments That the**  **Requirements Are T oo**  **V ague and**  **Will L ead**  **to L**  **itigation**
For a response to comments that the requirements are too vague and will lead to litigation, please see response essay 7.e.ii, section H. For a response to comments regarding defining “ practicable ” and other terms related to the requirements at section 131. 12(a)(2) that commenters believe are vague and could also lead to litigation, please see response essay 7.e.ii, sub section O.



### C. **Comments Questioning the Relationship to Accommodation of Social or Economic Development**  **and Evaluating Costs**  **v ersus**  **Benefits**

E PA received comments and corresponding rule language suggestions where commenters stated it was unclear “ whether (or when) States must perform both ‘ a social and/or economic analysis ’ and the alternatives analysis. ” In regards to the specific wording sugge stions that EPA require Tier 2 review s to consider “ whether the benefits of economic or social development unquestionably outweigh the costs of lower water quality to the affected community or surrounding area where the waters are located ,” EPA ’ s regulation provides some discretion to states and authorized tribes to consider multiple factors when deciding whether to allow a lowering of high water quality

. For a discussion on these points, please see the following response essays: 7.e.i sub sections B and D, 7.e.ii sub sections C, G, J, K, and O.



### D **. Comments r**  **egarding Flexibility to**  **Consider Cross Media Impacts**
For a response to these comments, please see response essay 7.e.ii sub sections G, K, and O.



### E. **Comments r**  **egarding O**  **pportunities to Minimize R**  **egulatory C**  **ost by R**  **elying on other Alternatives Analysis** 
For a response to these comments, please see response essay 7.e.ii, sub section I.



### F. Comments G **enerally O**  **pposing the N**  **ew R**  **equirements**
EPA received a comment that generally stated that the new requirement, as pr oposed, would confuse, not clarify the analysis required under the existing rule. The commenter also stated they “ also believe it would bring the rule into conflict with specific provisions of the Clean Water Act in a way that theChapter 3 – Response Essays 7.e.iii – Antideg Alt – Sugg Alt

existing rule does not. ” However, the commenter did not provide any specific evidence or examples of why they believe this. In response to this general comment, please see response essay 7.e.ii.



### G. **Comments T hat the**  **Rule Should Not Require I mposition of**  **Alternative P**  **ermit Limits/E nhanced**  **Treatment Techniques**
EPA received comments that the rule should not require imposition of alternative permit limits or enhanced treatment techniques because including them “ does not foster the best use of limited resources to protect and improve water quality. ” The final rule requires an analysis of alternatives to degrading high water quality as part of an antidegradation Tier 2 review. When deciding whether to allow a lowering of high water quality, states and authorized tribes have some flexibility to consider a range of practicable alternatives that would prevent or minimize degradation and to decide whether the lowering is “ necessary .” The final rule does not require that analyses of alternatives consider enhanced treatment techniques. In fact , the final rule thus does not predetermine any specific alternative that must be implemented or require that the permit must require a specific alternative to be implemented or specific limits to be included

. Enhanced treatment techniques, if practicable, could be among the range of alternatives considered, but that is not a requirement. If an analysis of alternatives results in identifying an enhanced treatment technique as the alternative that will be implemented, it may result in more stringent permit effluent limits, for example in a National Pollutant Discharge Elimination System ( NPDES ) permit. This situation is not a requirement of the final rule, but it is a possible outcome of Tier 2 review in a permitting context. EPA does not disagree that in som e situations returning highly treated wastewater to surface waters could be preferable to other alternatives but that decision is left to the states and authorized tribes who are responsible for making the decision based on a “ reasonable, credible, and ade quate analysis of alternatives ” as explained in the preamble to the final rule

. A comment stated that when the evaluation of alternative treatment levels as part of the antidegradation process was advocated in the 1998 A dvance Notice of Proposed Rulemaking ( ANPRM )
, few numeric water quality standards (WQS) had been developed. EPA disagrees with a commenter ’s statement that since at the present time numeric WQS have made permit limits more stringent, the evaluation of alternative treatment levels is an outda ted, unnecessary concept. Numeric water quality criteria , whether they are recommended by EPA under Clean Water Act ( CWA ) section 304(a), promulgated by EPA under CWA section 303(c)(4), or adopted by states and authorized tribes and approved by EPA under C WA section 303(c)(2)(A) are designed to protect designated uses, representing the state or authorized tribe ’ s desired condition for its waters, consistent with the requirements of the CWA and EPA ’ s regulation at section 131

. CWA s ection 101(a)(2) sets the goal that wherever attainable,
water quality which “ provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water. ” Often, states and authorized tribes are able to adopt designated uses to meet this goal, whereas in other instances, these uses are shown to be unattainable and thus another designated use is adopted. The antidegradation requirements at section 131.12(a)(2)

are intended to protect water quality that is better than the minimum level s necessary to protect the uses specified in CWA section 101(a)(2) ; those waters are considered “ high quality waters .” Therefore, whether or not there are advances in the availability of numeric water quality has no bearing on whether additional measures m ust be taken to protect waters that ex ceed the minimum level of
water quality

. The commenter also expressed that requiring “ unnecessarily stringent limits ” as part of the antidegradation analysis is not necessarily the best way to ensure water quality impr ovements. EPA agrees that “ unnecessarily stringent limits ” are not always the best way to protect waters, however theChapter 3 – Response Essays 7.e.iii – Antideg Alt – Sugg Alt

final rule does not require imposition of unnecessarily stringent effluent limits in permits. As discussed earlier, EPA ’ s final rule only requires that an analysis of alternatives be conducted in order for States and authorized tribes have a “ reasonable, credible, and adequate ” basis to determine whether a lowering of high water quality is necessary consistent with section 131.12(a)(2). Whet her more stringent limits will be required in a permit ( or another alternative) will be required is dependent upon the alternative selected and the basis on which the state or authorized tribe allows the lowering of high water quality
, and how much of a lo wering it allows.

EPA agrees that there may be a situation where a discharger starts discharging with stricter limits, but the receiving water quality does not improve due to other sources of pollution in the watershed. The antidegradation requirements do not require dischargers to have stricter limits as such an outcome depends upon the state or authorized tribe ’ s decision. However, t he antidegradation regulation does require that in order for a state or authorized tribe to make a finding to allow a loweri ng of high water quality, they must “ assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost

- effective and reasonable best management practices for nonpoint source control. ” (Note that EPA ’ s interpretation of the latter requirement is that it does not require imposition of best management practices ( BMPs ) for nonpoint

sources (NPS) , but that any BMPs that are legally binding upon the state or authorized tribe must be implemented.) This requirement is intended to prevent situations where a discharger must expend resources to reduce the pollutant load in its effluent while other sources of pollution to the same water body are not meeting their requirements. It is still possible that even with all the other sources of pollution meeting their requirements, one discharger ’ s additional treatment will only cause marginal improvement in its effluent, and not result in a significantly ‘ cleaner ’ water body. The commenter also pointed out that it is important to consider trade

- offs when determining what alternative to implement. The final rule provides the flexibility for states and authorized tribes to choose among a range of practicable alternatives in order to take into account various trade

- offs , such as environmental cross

media impacts, to make a decision that lessens degradation to the overall water body (see section D of this essay) . The entity conducting a Tier 2 review can also consider costs and cost

- effectiveness when choosing among the alternatives
, please see section C of this essay

.



### H **. If More Stringent Effluent Limitations**  **Are Necessary ,**  **Impose Requirements in the N**  **ational P**  **ollutant D**  **ischarge E**  **limina tion**  **S ystem**  **Regulation**
EPA disagrees with a comment stating that if EPA believes that more stringent effluent limitations are necessary in certain circumstances and for certain waters, then the appropriate way to address the issue is to propose specific re quire ments in the federal NPDES regulation at 40 CFR Part 122, not through a vague requirement imposed indirectly in the federal WQS regulation.

As discussed in section G, the antidegradation requirements do not require dischargers to have stricter limits as such an outcome depends upon the state or authorized tribe ’ s decision

. The federal antidegradation regulation intentionally leaves decision

- making to states and authorized tribes regarding whether to allow a lowering of high water quality and if so, how much lowering to allow when the water quality is better than necessary to protect the uses specified in CWA section 101(a)(2) (see section G for additional discussion)

. Antidegradation protection consistent with 131.12(a)(2) (i.e., Tier 2 protection) i mplements the broader goal of the CWA, to restore and maintain the chemical, physical, and biological integrity of the nation ’ s waters. The CWA does not require that high water quality (i.e., water quality that is better than necessary to protect the CWA g oal uses) must be maintained and protected in all waters of the U.S. under all circumstances. Therefore, the WQS regulation reflects theChapter 3 – Response Essays 7.e.iii – Antideg Alt – Sugg Alt

fact that states and authorized tribes have the authority to make decisions , in consultation with their public, on whet her to allow degradation of their high water qual ity , and how much, on a case

- by

- case basis. This means that they may require more stringent water quality

- based effluent limits (WQBELs) or other conditions on permits on a case

- by

- case basis, depending on t he outcome of the Tier 2 review. Of course, any degradation that states and authorized tribes allow may not result in nonattainment of the state/authorized tribally adopted designated uses and criteria.

In addition, WQS , including antidegradation protection, are broadly applicable to waters of the U.S. and are not limited in their application to the NPDES permitting context or any other particular source of pollution

. Therefore, EPA is not saying with this rulemaking that “ more stringent effluent limitation s are necessary in certain circumstances and for certain waters ” as the commenter suggests. Rather, EPA ’ s requirement means that any decisions must be based on a “ reasonable, credible, and adequate analysis of alternatives ” before deciding that any lowering of high water quality is necessary. Any resulting actions necessary to implement antidegradation protection can be implemented, as necessary, through any particular program such as NPDES permitting, 404 permits and can ev en lead to conditions on 401 certifications for federal activities that will affect water quality.



### I. **Comments T**  **hat the 1995 Draft Interim Economic Guidance**  **Contradicts the R**  **egulation**
EPA disagrees with a comment that the proposed regulation contradicted E PA ’ s 1995 Draft Interim Economic Guidance for Water Quality Standards, which provides methods for determining if the economic development associated with a proposed lowering of water quality is “ important ” (one required aspect of a state ’ s or authorized tr ibe ’ s Tier 2 finding to allow degradation.) The commenter stated that the interim guidance seems to be at odds with imposing alternative permit limits derived through consideration of enhanced treatment techniques as part of a Tier 2 analysis of alternativ es , because the memo does not anticipate requiring any practicable treatment alternative . The commenter cited the transmission memo statement that “ [t]he economic impacts to be considered are those that result from treatment beyond that required by technol ogy

- based regulations [secondary treatment]. All economic analyses of water quality standards should address only the cost of improving the water to meet water quality standards or the cost of maintaining water quality in high

- quality waters. ” The interim guidance indeed does limit analysis to only the cost of improving the water to meet WQS or to maintain water quality in high quality waters. If a Tier 2 analysis of alternatives, as required by the final rule, results in identification of a practicable alt ernative that would lessen or prevent lowering of water quality, the purpose of imposing that alternative would be in order to maintain water quality in high quality waters. This is consistent with the interim guidance.



### J. **Comments r**  **egarding S**  **pecific S**  **tate Permitting P**  **rocesses and W**  **hether T**  **hat N**  **egates the N**  **eed for A**  **ntidegradation P**  **rocesses**

EPA considered comment s that provided a detail ed description of how one specific state issues its permits as part of its reasoning that an analysis of alternatives is not necessar y. However, as noted above, even if permit limits are more stringent than in the past, the antidegradation regulations at section 131.12(a)(2) are meant to protect waters that exceed the levels necessary to support the propagation of fish, shellfish, wildlife, and recreation in and on the water. The antidegradation provisions protect high water quality while the numeric WQS protect the minimum water quality to meet the designated uses. EPA is willing to work with states and authorized tribes as they are deciding the best way to implement EPA ’ s final rules.Chapter 3 – Response Essays 7.e.iii – Antideg Alt – Sugg Alt



### K. Comments **r egarding**  **Minimum E lements** 
For comments regarding why the minimum elements of antidegradation implementation methods discussed in the proposal are not included in regulation, pleas e see response essay 7.g.i.



### L. Comments on the **R elationship of**  **A ntidegradation**  **R equirements to the**  **G reat**  **L akes**  **Initiative and Part 132** 
For comments involving the antidegradation requirements included in the Great Lak es Water Quality Initiative at 40 CFR Pa rt 132, please see response essay 7.e.ii, sub section L and 7.k.Chapter 3 – Response Essays 7.e.iv – Antideg Alt – Alt Selection



## Essay 7. **e. iv –**  **Antideg radation Alternatives Analysis: Selecting an**  **Alternative**

**A. Comments**  **on W**  **hether EPA**  **S hould**  **or S**  **hould N**  **ot R**  **equire S**  **election of the**  **L east**  **D egrading**  **/M inimally**  **D egrading**  **A lternative** 
The U.S. Environmental Protection Agency ( EPA ) received comments stating t hat the regulation should require states and authorized tribes to select the non

- degrading or least

- degrading alternative or the least degrading practicable alternative for implementation

. Commenters stated that such restriction is essential because degradation is not “necessary” if there is a non

- degrading or least degrading alternative (or least degrading practicable alternative) available. Other commenters requested that the regulation allow flexibility for states and authorized tribes to choose practicable alternatives that might not be the ‘ nondegrading ’ or ‘ least degrading ’ to ensure they can make decisions that truly result in less environment al degradation. Some cited to consideration of other environmental effects. For example, an alternative that is less degrading to water quality might be more degrading to air quality

. As another example , wastewater recycling may not be the least degrading alternative for the project in question but provides water quality or water suppl y benefits elsewhere. Finally, commenters asserted that there may also be geographic considerations that could come into play when considering alternatives that require shifti ng the degradation to another area

. EPA considered the comments, including those providing examples of hypothetical situations to illustrate potential consequences of today ’ s rule. EPA agrees that states should not be limited to choosing the least degrading alternative from a list of “ viable ” treatment/control options without some flexibility. The final rule allows for this flexibility, because it does not require choosing the least degrading practicable alternative but rather requires th e selection of an a lternative from a range of practicable alternatives that would prevent or lessen degradation associated with the activity

. While

non

- degrading or least degrading practicable alternatives are preferable in terms of preserving water quality, the reality is t hat states and authorized tribes must contend with competing environmental priorities. EPA chose not to require implementation of the least degrading practicable alternative in the final rule to allow states and authorized tribes the flexibility to balance multiple considerations. Some alternatives to lowering water quality can have negative environmental impacts in other media (e.g., air, land). For example, incinerating pollutants rather than discharging the pollutants to surface waters could adversely im pact air quality and energy use, and land application of pollutants could have adverse terrestrial impacts. In other situations, use of sustainable or “ green ” technologies can afford environmental benefits other than benefits to water quality. EPA recommen ds that states and authorized tribes consider cross

- media impacts and, where possible, seek alternatives that minimize degradation of water quality while also minimizing other environmental impacts.

Some comments suggested that the regulation should explicitly instruct states and authorized tribes to consider adverse environmental impacts associated with the alternative and others stated that the proposal instructs states and authorized tribes to consider cross

- media impacts

. While EPA agrees that

exa mining alternatives to water quality degradation in the context of a broader view of environmental impacts can result in environmentally beneficial decisions, the final water quality standards ( WQS ) regulation only addresses state and authorized tribal dec isions about water quality. The final rule does not require states or authorized tribes to consider cross

- media impacts because EPA views this as an area appropriate for state and authorized tribal discretion in managing their multiple environmentalChapter 3 – Response Essays 7.e.iv – Antideg Alt – Alt Selection

progra ms. EPA recognizes, however, that states and authorized tribes may need or want to consider

cross

- media impacts, so the final rule provides flexibility for that consideration without creating a requirement.

EPA also agrees with comment s stating that the re gulation should allow states and authorized tribes, when reviewing analyses of alternatives, to consider cost

- effectiveness in addition to watershed or

cross

- media issues in alternative selection. EPA agrees that states and authorized tribes can consider h olistic approaches, such as installing nonpoint source (NPS) controls throughout a watershed to achieve overall water quality improvement, rather than focusing only on a single discharge point, particularly if this will achieve more water quality improveme nt for the expense. EPA agrees that in some situations when a less

- degrading treatment technology or other alternative exists, it may provide less additional water quality benefit for the additional expense than would pursuing more holistic approaches to w ater quality improvements.

For the same reasons discussed thus far, EPA ’ s final rule does not require selection of the minimally degrading practicable alternative. States and authorized tribes will have the flexibility to choose among the range of non - and less degrading alternatives, considering costs and other environmental impacts and other factors such as site

- specific circumstances of the project.

A comment suggested that the regulation should require that states and authorized tribes must choose a practicable alternative unless EPA has approved the use of other scientific, cost

- effectiveness, or holistic environmental factors in the state ’ s or authorized tribe ’ s antidegradation implementation methods. EPA agrees in principle that states and authorized tribes should include descriptions of the considerations they will use in Tier 2 review decisions. EPA also agrees that states and authorized tribes should have flexibility to consider other factors in selecting an alternative to be implemented, and the fi nal rule allows for this flexibility . However, the final rule does not require that states and authorized tribes adopt their implementation methods into rule, so EPA will not necessarily be approving or disapproving state/authorized tribal such methods (un less the state or authorized tribe chooses to adopt antidegradation implementation methods into rule)

. Such descriptions of the state/authorized tribal considerations are important so that the public can understand the decision making process. The purposes of the antidegradation requirements will be met if a practicable alternative is chosen that lessens degradation associated with the proposed activity and the state conducts the social and economic analysis (EA) and concludes that in light of t he analyses, the lowering of water quality is necessary . EPA believes it is appropriate to provide discretion to states and authorized tribes to determine which practicable alternative from the range of practicable alternatives required by section 131.12(a )(2) must be selected in order to make a finding that lowering of high water quality is “ necessary .”

Some c ommenters requested that the rule explicitly not preclude state flexibility to consider cost and overall impact on the environment in the high qualit y waters decision process. While EPA agrees in principle that states and authorized tribes have flexibility to consider such factors when choosing a practicable alternative (i.e., from the “ range of practicable alternatives that would prevent or lessen the degradation associated with the proposed activities ”) , EPA disagrees that it is appropriate to describe the flexibility regarding the factors the state or authorized tribe should consider in the regulatory text. The lack of prescription on this point in r egulatory text means that flexibilities are possible. Flexibilities in this case are best described outside of rule. The final rule is, however, explicit that there is flexibility to choose among the practicable alternatives identified in the analysis. EPA will consider whether and how to revise future guidance to provide examples of the considerations that may influence the selection of the alternative.Chapter 3 – Response Essays 7.e.iv – Antideg Alt – Alt Selection

For comments that requiring anything other than the least degrading practicable alternative to be select ed is inconsistent with Clean Water Act ( CWA ) and existing regulation , please see response essay 7.e.ii, section C.



### B. **Comments r**  **egarding State/**  **T ribal**  **Flexibility and**  **C onsideration**  **of C**  **ost**

  ** E** **ffectiveness**

A comment stated that “ the CWA does not authorize EPA or states to require implementation of alternatives based on feasibility or cost ; such alternatives must be based on environmental need. In other words, requiring implementation of an alternative measure simply because it is possible to do so goes beyond what the Clean Water Act authorizes. ” The final rule allows states and authorized tribes to take into account cost and environmental impacts when deciding which of the practicable alternatives (i.e., from the “ range of practicable alternatives that would prevent or lessen the degradation associated with the proposed activities ”) identified should be implemented in order to authorize a lowering of high water quality. The rule does not require implementation of an alternative “ simply because it is possible
to do so. ” States, authorized tribes have flexibility in determining whether to allow a lowering of water quality which is consistent with the agency ’ s longstanding policy. Since 1983, the Tier 2 regulation has reflected the policy that for high quality waters, before allowing any lowering of water quality, the state or authorized tribe must find that allowing lower water quality is necessary to accommodate important economic and social development in the area in which the waters are located. EPA agrees that criteria and water quality

- based effluent limits (WQBELs) are to be based on science, what is necessary to meet uses or applicable standards, without regard to costs. By contrast, the lowering contemplated in a Tier 2 antidegradation analysis is about a lowering that will still meet water quality criteria protective of CWA 101(a)(2) uses

. The CWA does not preclude EPA from allowing a state to consider economic factors when making a finding to allow a lowering of water quality in a water that will, even afte r the lowering, still meet applicable criteria to protect CWA 101(a)(2) uses . In fact, the Supreme Court has held in two relevant recent decisions that where a statute does not prohibit consideration of certain factors then the agency has authority to cons ider that factor. See Entergy Corp. v. Riverkeeper Inc ., 556 U.S. 208, 222 (2009) ( “ [the statute] is unencumbered by specified statutory factors of the sort provided for those other two tests, which omission can reasonably be interpreted to suggest that th e EPA is accorded greater discretion in determining its precise content. . . . It is eminently reasonable to conclude that Section 1326(b) ’ s silence is meant to convey nothing more than a refusal to tie the agency ’ s hands as to whether cost

- benefit analysis should be used, and if so to what degree. ”) See also Michigan v. EPA , 192 L.Ed.2d 674, 682

- 83 (2015) “ Consideration of cost reflects the understanding that reasonable regulation ordinarily requires paying attention to the advantages and the disadv antages of agency decisions. It also reflects the reality that ‘ too much wasteful expenditure devoted to one problem may well mean considerably fewer resources available to deal effectively with other (perhaps more serious) problems ’” (citing Entergy Corp. v. Riverkeeper ). For a full discussion on the flexibility states and authorized tribes have in regards to the requirements at section 131.12(a)(2)(ii), please see response essay 7.e.ii, section G. For a discussion on how costs and economics can be conside red in the process, please see
response essay 7.e.ii, section J.



### C. **Comments Q**  **uestioning W**  **hat A**  **lternatives M**  **ust B**  **e C**  **onsidered**
EPA disagrees with comments stating that states and authorized tribes should analyze all non

- degrading and least

- degrading options before concluding that lowering water quality is acceptable. The final rule balances the need for a credible finding that lowering of water quality is “ necessary to accommodate important economic or social development ” with the need to preserve state and authorized tribalChapter 3 – Response Essays 7.e.iv – Antideg Alt – Alt Selection

flexibility in decision

- making and the need to consider practicability

. The final rule requires that the analysis of alternatives evaluate a range of practicable alternatives ( as opposed to all alternatives) that would prevent or lessen t he degradation associa ted with the proposed activity.

Commenters stated that the rule must require full evaluation of the feasibi lity of the alternatives before determining that degradation is necessary. While the final rule does not explicitly require “ full evaluation of the feasibility of alternatives, ” EPA agrees that evaluation of the feasibility of the alternatives is an important step and the final rule ’ s use of the word “ practicable ” is intended to encompass feasibility, which the agency views as a synonym of “ practicability .” In order to consider a range of “ practicable ” alternatives, the entity conducting the analysis of alternatives must have information on feasibility.

For additio nal discussion on the requirements for the range of practicable alternatives, please see response essay 7.e.ii, section K.

A comment requested that EPA acknowledge in regulation that under some circumstances, returning highly treated wastewater flows to su rface waters best meets the goal of supporting the protection of fish, shellfish, wildlife, and recreation in and on water. As discussed in response essay 7.e.ii and earlier in this essay, EPA agrees that states and authorized tribes have the flexibility to consider other environmental impacts when deciding whether and how much lowering of high water quality to authorize. Response essay 7.e.ii also explains that the final rule does not dictate exactly how the analysis of alternatives must be conducted nor d oes it specify which alterative must be chosen. Rather, it provides regulatory language to make clear that (1) an analysis of alternatives must be done, (2) the alternatives must be a range of practicable alternatives, and (3) a state or authorized tribe s hall only find that a lowering is necessary if one such practicable alternative is selected. How the analysis is conducted is up to the entity conducting the analysis, which alternative is selected from the list of practicable alternatives is up to the sel ector. But, EPA ’ s regulations provide clarity on what must occur in order for the State ’ s or authorized tribe ’ s finding to be consistent with EPA ’ s regulations and thus with the CWA. Therefore, analyses of alternatives can include other alternatives such a s water conservation, control of infiltration/inflow, and recycling or reuse. EPA expects that each alternatives analysis will consider alternatives appropriate to the situation in question.

Some commenters expressed concern with EPA ’ s references to “ econo mic viability ” for alternatives and thought that such a term does not provide assurances that benefits and costs will be fairly balanced when states are developing ranges of alternatives. EPA agrees because the intent of the regulation is not to provide gu arantees for any decision. As discussed in response essay 7.e.ii, section O, states and authorized tribes have considerable discretion to determine whether or not to make a finding that lowering high water quality is “ necessary .” EPA ’ s regulations are only intended to be clear what must be done to be consistent with the CWA. Response essay 7.e.ii, section O discusses how certain terms, such

as “ economic viability ” play a role in these state/authorized tribal decisions and why EPA chose not to provide explicit regulatory definitions of these terms

. EPA considered commenter concerns that any time flexibility is allowed by a regulation, legal challenges may result. EP A’ s view is that the final regulation provides the right balance of limitations and flexibilities in the area of Tier 2 analysis of alternatives because it provides a basic framework for the characteristics of the alternatives that must be considered while not prescribing specific alternatives and allowing states and authorized tribes the ability to choose the alternative for implementation

. For additional discussion on comments concerned with legal vulnerability, please see response essay 7.e.ii, section H

. Please also see response essay 7.e.ii,Chapter 3 – Response Essays 7.e.iv – Antideg Alt – Alt Selection

section K for an explanation that EPA ’ s final rule does not require an evaluation and identification of ALL practicable alternatives, but a range

.



### D. **Comments r**  **egarding U**  **sing the**  **T erm**  **“L ess**  **” R ather**  **t han**  **“M inimally**  **”**
EPA agrees with comments suggesting replacing the word “ minimally ” in the proposed requirement that an analysis of alternatives consider a “ range of non

- degrading and minimally degrading practicable alternatives ” with the word “less.” Commenters pointed out that considering only “ minimally ” degrading alternatives might rule out consideration of alternatives that might result in some degradation from ambient water quality, but more than would be considered “ minimal. ” EPA revised the final rule accordingly and thus the final regulatory language requires the analysis to consider a

“ range of practicable alternatives that would prevent or lessen the degradation associated with the proposed activity .”

A comment pointed out that the preamble t o the proposal did not define “ minimally, ” leading to possible confusion. The final rule does not use the word “ minimally ” so that term is not defined in the rule or preamble.



### E. **Comments r**  **egarding the**  **U se**  **of the W**  **ord “P**  **racticable ”** 
EPA disagrees with a com ment requesting deletion of the word “ practicable ” in the proposed description of the range of alternatives to be considered in analyses of alternatives. The final rule uses the word “ practicable ” similarly to the proposed rule. The final rule states that “ [t] he analysis of alternatives shall evaluate a range of practicable alternatives that would prevent or lessen the degradation associated with the proposed activity. ” The commenter suggested that it may not be possible to determine if an alternative is practicable without further consideration. EPA ’ s view is that this is not always the case, as states and authorized tribes can obtain information on common practicable alternatives appropriate for a proposed activity from additional existing resources (e.g., EPA ’ s Municipal Technologies website, which presents technology fact sheets to assist in the evaluation of different technologies for wastewater at http://water.epa.gov/scitech/wastetech/mtb_index.cfm

. ) In the case of activities for which less information is available to assist with identifying practicability upfront, states and authorized tribes would need to evaluate that early on as part of the Tier 2 review, when identifying alternati ves for the analysis of alternatives.

A comment stated that the proposal was not clear about whether an analysis of alternatives could consider the cost

- effectiveness of additional treatment/controls in the process of deciding which alternatives are “ practicable. ” The preamble to the proposal explained that “ practicable ” included the concept of “ economically viable. ” The commenter explained that while an alternative could be

“ economically viable, ” the cost to install it might be excessive when compared to t he increment/amount/degree of water quality protections that may result. The final rule requires that “ The analysis of alternatives shall evaluate a range of practicable alternatives that would prevent or lessen the degradation associated with the proposed activity. ” The final rule defines “ practicable ” f or the purposes of antidegradation at section 131.3(n) as “ technologically possible, able to be put into practice, and economically viable. ” Please see response essay 7.e.ii, section O for additional discus sion on the
term “ practicable. ” If an analysis identifies more than one practicable alternative, the entity conducting the analysis could consider the cost

- effectiveness of each of those alternatives in choosing one to implement.Chapter 3 – Response Essays 7.e.iv – Antideg Alt – Alt Selection



### F. **Comments T**  **hat t**  **he S**  **tate or A**  **uthorized T**  **ribe I**  **tself N**  **eed N**  **ot C**  **onduct the**  **A nalysis** 
Commenters expressed concern that the proposed rule language implied that states and authorized tribes must perform the analysis of alternatives themselves, when other entities may be best posit ioned to analyze the alternatives. Please see response essay 7.e.ii, section D for a response to these
comments. The final rule language allows states and authorized tribes to rely on analyses prepared by third parties (e.g., a permit applicant). This preserves appropriate flexibility for states ’ and authorized tribes ’ decision

- makers, and can bring additional resources and expertise to the analysis. States and authorized tribes remain ultimately responsible for making findings to allow degradation and for basing their decisions on adequate analyses. If the state or authorized tribe deems an initial analysis of alternatives insufficient to support a finding that a lowering of high water quality is “necessary,” it can request additional analyses of alternativ es from the permit applicant or other entities. A state or authorized tribe can also obtain information on common practicable alternatives appropriate for a proposed activity from additional existing resources.



### G. **What E**  **xactly I**  **s the F**  **inding of**  **N ecessity**  **F or**  **?**
Commenters requested clarity on which evaluation EPA was proposing that states follow when deciding whether to allow lowering of high water quality through the alternatives analysis: “ as necessary to accommodate important econo mic or social development, ” or “ as necessary to accomplish the proposed activity? ” The requirement in the regulation at section 131.12(a)(2) , and that is unchanged by this final rule, is that the ultimate finding to allow degradation is based on whether the lowering is

“ necessary to accommodate important economic or social development, ” not simply whether degradation is necessary to accomplish the proposed activity. There is no presumption that the activity must be allowed. The preamble to the final rule explains that st ates ’ and authorized tribes ’ finding to allow a lowering of high water quality depends on both an analysis of alternatives and an analysis on the importance of the degradation related to economic or social development. Today ’ s rule preserves
states ’ and au thorized tribes ’ discretion to decide the order in which they satisfy these requirements. A
state or authorized tribe can choose to first review an analysis of economic or social development. If it finds that the proposed lowering of water quality would ac commodate important economic or social development, it can then require an analysis of alternatives to see if the lowering could be prevented or lessened. If, on the other hand, a state or authorized tribe finds that the proposed lowering of water quality would not accommodate important economic or social development, it could choose to disallow lowering of water quality and terminate the Tier 2 review without ever requiring an analysis of alternatives. Similarly, a state or authorized tribe could first choose to require an analysis of alternatives and then examine an analysis of economic or social development. In this case, if a non

- degrading alternative is selected for implementation, the state or authorized tribe does not need to proceed with an analysis of economic or social development since there is no “ lowering ” to authorize

.



### H. **Comments T**  **hat a**  **n A**  **lternatives A**  **nalysis P**  **repared for the**  **National Environmental Policy Act**  **E tc**  **. S hould**  **S uffice** 

For a response to comments questioning the relationship of antidegradation alternatives analysis and NEPA, 404, and 401 certifications, please see response essay 7.e.ii, section I.Chapter 3 – Response Essays 7.e.iv – Antideg Alt – Alt Selection



### I. **Comments Insisting T**  **hat EPA N**  **ot A**  **llow D**  **egradation for N**  **ormal S**  **prawl and**  **G rowth** 
EPA disagrees with comments stating that EPA should better define the analysis of alternatives such that a state is not allowed to lower water quality for normal sprawl and growth but rather that states be required to address those issues before water quality is threatened. EPA does not have the authority to regulate states ’ and authorized tribes ’ growth through the WQS regulation. As articulated in the 1994 WQS Handbook, antidegradation is not a “ no growth ” rule and was never designed or intended to be such. It is a policy that allows public decisions to be made on important environmental actions. Where a State or authorized tribe intends to provide for development, it may decide, after satisfying the requir ements for intergovernmental coordination and public participation, that some lowering of water quality in “ high

- quality waters ” is necessary to accommodate important economic or social development. Any such lower water quality must protect existing uses f ully, and the State must assure that the highest statutory and regulatory requirement for all new and existing point sources and all cost

effective and reasonable best management practices ( BMPs ) for NPS control are being achieved on the water body.



### J **. Ste ps of Tier 2**  **R eview** 
A comment requested EPA clarify the requirement of (a) the socio

- economic review, (b) the assurance of the protection of existing uses, (c) the assurance all requirements for new and existing point sources are met and (d) that all cost

- effective and reasonable BMPs for NPS control have been applied before degradation is allowed. EPA confirms here that these elements are all indeed required aspects of Tier 2 review to be completed before allowing degradation of high quality water. The fin al rule is intended to strengthen and clarify what is needed in order for states and authorized tribes to find that a lowering is
necessary. As discussed in section G of this essay, this finding is based both on whether the lowering is

“ necessary ” and whet her the lowering would accommodate important economic or social development. Please see the preamble to the final rule and discussion throughout the comment response document for additional discussion and clarification.



### K. C **omment s r**  **egarding W**  **hether Tier 2**  **R eviews**  **R equired**  **on W**  **aters with**  **Use Attainability Analyses** 
Commenters said that the proposal seemed to require states and authorized tribes to conduct Tier 2 reviews on waters with use attainability analyses ( UAAs ) showing that a 101(a)(2) use is not attainable, and questioned whether that was EPA ’ s intent. Whether or not a UAA has been conducted for a water body is not relevant for states and authorized tribes that identify waters for Tier 2 protection on a paramet er

- by

- parameter basis. In those cases, when determining whether a Tier 2 review is needed
, t ier 2 protection is provided for all parameters exceeding levels necessary to support CWA 101(a)(2) uses, regardless of what the designated uses are. Please see 78 FR 54527 (September 4, 2013) for additional discussion on parameter

- by

- parameter approach and how it differs from a water body

- by

water body approach.

For states and authorized tribes that identify waters for Tier 2 protection on a water body

- by

- water body basis, whether a water body has had a 101(a)(2) use or uses removed via a UAA is one factor that can be considered in deciding whether or not to classify the water as a high quality water to receive Tier 2 protection

. But, it would not be consistent with the final rule to exclude a water from Tier 2 protection solely because a UAA has been conducted to justify that one of the uses specified in CWA sectionChapter 3 – Response Essays 7.e.iv – Antideg Alt – Alt Selection

101(a)(2) is not attainable. A state or authorized tribe could conduct a UAA to demonstrate that an aq uatic life use consistent with the CWA 101(a)(2) is not attai nable, and EPA could approve it. H owever , a recreational use could still be attainable and the water could still have water quality that exceeds levels necessary to support recreational uses cons istent with CWA section 101(a)(2)

. The preamble to the final rule says “ Thus, when considering whether to exclude waters from Tier 2 protection , states and authorized tribes must consider the overall quality of the water rather than whether water quality is better than necessary for individual chemical, physical, and biological parameters to support all the uses specified in CWA section 101(a)(2). The rule provides for a decision

- making process where states and authorized tribes consider water quality and reasons to protect water quality more broadly. ” EPA ’ s preamble also says
, “ where water quality is not better than necessary to support all of the uses specified in CWA section 101(a)(2), the final rule does not require states and authorized tribes to provi de Tier 2 protection for the water body. ” Whether a UAA has been done and EPA has approved the associated use change can inform whether water quality is better than necessary to support all of the uses specified in CWA section 101(a)(2). While the rule allows states and authorized tribes discretion, s tates ’ and authorized tribes ’ decisions about whether or not to provide Tier 2 protection must be based on something more than solely the fact that a water is not exceeding levels necessary to support all of th e CWA 101(a)(2) uses, and are subject to public participation. Therefore, under the final rule, if a UAA demonstrates that one of the 101(a)(2) uses is unattainable (and consequently, the water is “ not exceeding levels necessary to support all of the CWA 1 01(a)(2) uses ” ), this UAA demonstration cannot be the sole reason for not conducting a Tier 2 review.



### L. **Comments on** D e M inimis **E xemptions** 
For a response to comments regarding de minim is exemptions, please see response essay 7.i.Chapter 3 – Response Essays 7.f – Antideg – Imp Methods



## Essay **7.f – Antidegradation: Implementation**  **Methods**

No comments are assigned to this issue category, and thus no response is necessary.Chapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption



## Essay 7. **f. i –**  **Antideg radation**  **I mplementation**  **M ethods**  **: T ransparency**  **and A doption** 

**A. Comments**  **O pposing EPA**  **R equiring**  **A doption of**  **A ntidegradation**  **I mplementation**  **M ethods** 
The U.S. Environmental Protection Agency ( EPA ) received many comments in response to the question in the proposal preamble of whether EPA should require states and authorized tribes to adopt antidegradation implementation methods as legally binding. Some of t hese commenters preferred allowing states a nd authorized tribes to have their implementation methods in guidance. Some supported allowing them to develop methods under a separate rulemaking, apart from water quality standards ( WQS ) . Some said that at most EPA should provide that States and authorized tribes may, but are not required to, adopt antidegradation implementation methods as WQS. The final rule requires that states and authorized tribes: “ shall develop methods for implementing the antidegradation policy that are, at a minimum, consistent with the State ’ s policy and with paragraph (a) of this section. The State shall provide an opportunity for public involvement during the development and any subsequent revisions of the implementation methods, and shall make the methods available to the publi c. ” After considering the comments and stakeholder input, EPA determined that it is not appropriate at this time to require states and authorized tribes to include antidegradation implementation methods in legally binding form for the following reasons.

Fi rst and foremost, EPA found that EPA could accomplish the goals of improving public transparency and enhancing public involvement and improving accountability in several other ways. EPA added a requirement to the final rule that states and authorized tribe s must involve the public in development and revision of implementation methods. This provides for enhanced public involvement. Unlike the proposed rule, which included the new requirements for identifying waters for Tier 2 protection and analysis of alter natives as aspects of implementation methods, the final rule requires states ’ and authorized tribes ’ antidegradation policies (which are legally binding state and authorized tribal provisions subject to public participation) to be consistent with the new requirements related to identifying waters for Tier 2 protection and the new requirements for analysis of alternatives. As described in the preamble to the final rule, since states and authorized tribes must provide for public participation on their antidegradation policies, placing these requirements in their antidegradation policies increases accountabi lity and transparency. Thus, s tates and authorized tribes can still provide this accountability and transparency for identification of waters for Tier 2 protection without a requirement to adopt implementation methods.

Secondly, EPA agreed with some of the commenters ’ concerns regarding potential consequences of requiring adoption of implementation methods. EPA found that specific state examples describing the burden of adopting implementation methods were compelling, because when a state or authorized trib e goes to adopt methods that they have previously invested time and resources into developing as guidance into regulation, the WQS rulemaking can become more complicate d and states and authorized tribes can incur difficulties in going through the legislati ve process. Further, adding implementation methods to the state ’ s or authorized tribe ’ s WQS requires additional time and resources in the triennial review process, which may delay revisions to those methods and the state ’ s or authorized tribe ’ s entire WQS triennial review package. All of these factors may increase the burden on some states and authorized tribes that could impede their ability to focus resources on actually implementing theChapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption

regulation. Also, some states and authorized tribes have long, detai led antidegradation implementation methods documents that include items not well

- suited to adoption in rule (e.g., descriptions, examples), and items that do not directly relate to the actual protection provided by antidegradation (e.g., mechanics of the t ransmission of paperwork internal to the state or authorized tribe). EPA ’ s view is that it is not essential that these types of items be included in state and authorized tribal regulations if they do not directly affect how antidegradation protection will be provided. EPA also found that for some states and authorized tribes, incorporation of implementation methods into WQS can impede innovation and the ability to adapt appropriately to site

- specific or novel situations, because of the difficulty of going t hrough the required administrative process to change methods once they are adopted as regulation.

EPA disagrees with comments saying that there is no confusion as to whether implementation of implementation methods must be required because in the commenter s’ view, the previous regulation already required state and authorized tribal implementation methods to be adopted. The fact that EPA received comments indicating an incorrect understanding of the previous regulation ’ s requirement (which was not to adopt i mplementation methods, but to identify them, either in rule or in guidance) means that there was confusion, and that clarification in the final rule was needed. This is one reason that EPA finalized changes to the requirement regarding implementation metho ds.

EPA received comments incorrectly stating that the previously existing provision on general policies at Title 40 of the Code of Federal Regulations (CFR) s ection 131.13 already required that implementation methods be subject to EPA review and approval under Clean Water Act ( CWA ) section 303(c). EPA disagrees. The previously existing provision at section 131.13 addressed general policies that are discretionary for states and authorized tribes, such as variances, low flow provisions, and mixing zones. Thi s means, for these topics, states and authorized tribes have discretion as to whether to adopt a provision, but if they choose to adopt provisions, such provisions are subject to EPA review and approval under 303(c). This provision is not applicable to ant idegradation implementation methods, because those are not discretionary, and are addressed under section 131.12. The previous version of section 131.13 required that states and authorized tribes identify implementation methods, but did not require that they adopt such methods. If a state ’ s or authorized tribe chose to have methods that are not legally binding, they are not subject to EPA review and approv al under 303(c).

EPA received comments incorrectly stating that 131.5(a)(3) would require, for the first time, that EPA review state antidegradation implementation methods if the state or authorized tribe has “ chosen to formally adopt implementation methods as water quality standards, ” and stated that this would be an incentive for states to accomplish implementation through state guidance and policy documents. The final rule at 131.5(a)(3) does not expand EPA ’s authority

. Previously, if a state or authoriz ed tribe adopted implementation methods as legally binding, EPA had the authority to act on such methods under CWA 303(c). EPA ’ s authority for this position is discussed in EPA ’ s 2012 frequently asked questions (FAQ) titled “ What is a New or Revised WQS un der CWA section 303(c)(3) ” found at http://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm

. The final rule provides a clarification in the regulation of EPA ’s longstanding position on the Agency ’ s authority

. As explained, where states and authorized tribes adopt legally binding antidegradation implementation methods, EPA continues to have the authority to review and approve/disapprove such methods.Chapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption



### B. **Comments T**  **hat S**  **upport R**  **equiring A**  **doption of A**  **ntidegradation I**  **mplementation M**  **ethods**

EPA also received comments supporting a requirement for states and authorized tribes to adopt their implementat ion methods as legally binding. Some commenters also support ed clarifyin g that implementation methods are part of the minimum requirements for a state or authorized tribal WQS submission to EPA , and that implementation methods should be included in triennial reviews

. Some commented th at allowing states to continue keeping impl ementation methods outside of legally binding rule s would not be of value to incorporate into the regulation. Commenters supported adoption of implementation methods for a variety of reasons. EPA lists the commenters ’ points and EPA ’ s responses here. Despi te comments that EPA ’ s previous regulation requiring the identification of implementation regulations has been ineffective, EPA disagrees that it must require adoption of antidegradation implementation methods in order to accomplish its goal for effective antidegradation implementation and thus t he final rule does not require adoption of antidegradation implementation methods.

Commenters expressed concern that the proposal removed an existing requirement for adoption o f implementation methods as WQS, and cited to the 1994 WQS Handbook at 4.1: “ Antidegradation requirements and methods for implementing those requirements are minimum conditions to be included in a State ’ s water quality standards. ” E PA clarifies here that t here was no pre

- existing requirement for adoption of implementation methods as WQS . The 1994 WQS Handbook statement inaccurately portrayed the previously existing requirements ; the Handbook (which is a guidance document) cannot establish requirements that do not exist in regulation . EPA intends to correct this inaccuracy subsequent to publishing this final rule.

A comment saying that EPA must require adoption of antidegradation implementation methods to ensure implementation cited to Title 33 of the U nited S tates Code ( U.S.C. ) s ection 1313(d)(4)(B); 33 U.S.C. section 1313(c)(3) & (4); Water Quality Guidance for Great Lakes System, 40 CFR Part 132; and EPA Region IV ’ s September 24, 1987 letter to the state of Florida. EPA disagrees; none of these citations

sa y that states and authorized tribes must adopt implementation methods. The comment said that EPA ’ s letter to the state of Florida was an Administrator ’ s Determination and provided evidence that clustering a state ’ s antidegradation requirements (including implementation methods) in one location in the state ’ s WQS is necessary to meet the requirements of the CWA. EPA disagrees. Not only was the letter to Florida not an Administrator ’ s Determination (see final preamble discussion on what constitutes an Adminis trator ’ s Determination), but the letter also did not say that antidegradation implementation methods must be adopted into regulation. For reasons explained elsewhere in this essay, the final rule does not require adoption of implementation methods.

Commenters stated that requiring legally binding implementation methods would improve the ability of authorized tribes to protect downstream waters, improve program implementation and help ensure consistency with the CWA. EPA agrees that legally binding im plementation methods support protection of downstream waters, better program implementation, and consistency with the CWA. However, EPA ’s view is that non

- binding implementation methods can also support these positive outcomes and therefore, EPA did not fi nd a compelling reason to require adoption of methods into rule

.Chapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption

Comments stated that without legally binding implementation methods, antidegradation can be inconsistently applied, inadequately enforced, or negated by the provisions of a state ’ s non

- bindin g methods. EPA ’ s view is that regardless of whether states ’ and authorized tribes ’ methods a re legally binding
, it is possible that antidegradation can be inconsistently applied or inadequately enforced

. EPA finalized today ’ s new regulatory requirements to improve consistency of implementation. EPA points out here that non

- binding antidegradation implementation methods cannot negate legally binding antidegradation policies for purposes of the CWA

. 1 Even if a state or authorized tribe has legally binding imp lementation methods approved by EPA as consistent with the CWA and the regulation at 40 CFR Section 131.12, in some cases the state or authorized tribe may fail to consistently apply or adequately enforce their antidegradation policy, or may fail to apply it altogether. EPA ’ s recourse in this
event would generally be through its oversight discretion of the relevant implementation program (e.g., National Pollutant Discharge Elimination System ( NPDES )) and not through the WQS program. Depending on the circums tances, it may also be possible for EPA to make an Administrator ’ s Determination that new or revised WQS are needed, at the Administrator ’ s discretion

. EPA agrees with comments stating that the public has a right to know how states and authorized tribes intend to implement the CWA and have input on state and authorized tribal decision

- making
processes. EPA also agrees with the importance of public participation for the regulated communi ty and other stakeholders. EPA also agrees that state and authorized tribal rulemakings can be a vehicle to achieve public participation requirements. Commenters stated that requiring adoption of implementation methods would enhance public participation an d provide transparency and accountability in the development of implementation methods. Commenters also stated that this would lead to greater consistency nationwide. However, EPA disagrees with comments stating that binding methods are necessary to improve transparency , accountability, to enhance public involvement, and to increase confidence in state programs. The final rule requires that states and authorized tribes provide an opportunity for public involvement during the development and revision of thei r antidegradation implementation methods. This requirement applies whether or not those methods are legally binding.

EPA disagrees with comments stat ing that requiring legally binding implementation methods would

e nsure they are updated regularly as part of triennial reviews. Commenters provided no explanation for why this would be a logical o utcome. EPA ’ s experience is that states and authorized tribes do not always regularly update all parts of their designated uses, criteria, or antidegradation policies through triennial reviews , despite the fact that all of those are required components of states ’ and authorized tribes ’ legally binding WQS. On the other hand, EPA received many comments that retaining antidegradation implementation methods in guidance wou ld allow states and authorized tribes to refine and update their implementation methods more frequently than they otherwise would if they were required to go through a formal rulemaking for each revision to their implementation methods.

1 EPA makes clear in its final rule at section 131.5(a)(3) that where states and authorized tribes adopt legally binding antidegradation implementation methods, such methods are subject to EPA review and approval or disapproval.Chapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption

Commenters stated t hat undisclosed promises in non

- binding antidegradation implementation methods made by states and authorized tribes to EPA are not consistent with sound public policy, the CWA, or the state Administrative Procedures Acts. EPA determined that the most reaso nable way to address this concern is to require in the final rule that states ’ and authorized tribes ’ antidegradation implementation methods be publicly available and that states provide an opportunity for public involvement during the development and revision of any antidegradation implementation methods. EPA found that public involvement is important to increase transparency, accountability, and consistency in states ’ and authorized tribes ’ implementation. Thus, today ’ s rule provides for public involv ement during development or revision of implementation methods

. EPA disagrees with the comment that because implementation methods deal with high quality waters, they should be subject to EPA review. EPA recognizes the importance of high quality waters, bu t determined that the most balanced approach is to require public involvement, but not require states adopt methods into rule, for the reasons stated above

.

EPA agrees with a commenter s tating that CWA section 501(a) authorizes the EPA Administrator to

“ pr escribe such regulations as are necessary to carry out his functions under this chapter. ” EPA has authority under the CWA to require antidegradation implementation methods in binding form, but the Agency chose not to impose this requirement at this time af ter full consideration. I t is not necessary to require states and authorized tribes to adopt implementation methods in order to carry out functions of the Act as discussed the final preamble and in other parts of this response.

EPA agrees with comment s exp laining that requiring state or authorized tribal adoption of implementation methods would not remove state and authorized tribal primacy to decide how to address implementation in the methods , and that it would help ensure that states meet consistent
requ irements in executing that primary role . EPA agrees that when states ’ and authorized tribes ’ methods are adopted into binding form, EPA has a secondary role in reviewing them to ensure they are at least minimally sufficient. EPA does not have the primary r ole of deciding how states and authorized tribes will implement their programs. EPA also agrees with comments that EPA could require adoption of implementation methods while still allowing flexibility for states and authorized tribes to tailor their method s to local needs. Though the final rule does not require adoption of implementation methods, it is still the case that states and authorized tribes adopting their methods have flexibility with respect to tailoring methods to local needs. EPA encourages sta tes and authorized tribes to consider adopting implementation methods as legally binding, to incur advanta ges such as providing a greater degree of regulatory certainty to regulated entities.

EPA agrees with comments stating that because EPA outlined the minimum elements of implementation methods in the preamble to the proposal, states and authorized tribes have the information they need to know what elements their methods must address in order to obtain approval. EPA notes that the fact that a state or authorized tribe ’ s implementation methods addresses all of the elements does not guarantee approval; it must address those elements in a manner consistent with the requirements of the CWA and the WQS regulation.

Commente rs stated that requiring adoption of antidegradation implementation methods would lead to more consistent implementation nationally, and a more consistent, uniform approach to EPA evaluating those methods. Commenters did not provide an explanation for thei r assertion that it would lead to more consistent implementation. EPA agrees that if all states ’ and authorized tribes ’ methods were adopted as legally binding, EPA would have a more “ uniform ” approach to evaluating methods in theChapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption

sense that EPA would have legal authority to act directly on all of them. EPA also agrees with commenters that adoption of antidegradation implementation methods can have positive implications for NPDES permits, better public information and participation, and clearer information for the regulated community. However, EPA disagrees that it is necessary to require adoption of implementation methods in order to achieve this same consistency, uniformity and other positive results at this time

. While implementation methods can and shoul d vary state by state/tribe by tribe, in order to accommodate state/tribal specific waters and processes, with the proper public involvement and early EPA engagement, non

- binding antidegradation implementation methods can be jus t as thorough and effective as binding implementation methods with state/tribal commitment to implementing the methods, as written.

Some commenters supported requiring adoption of implementation methods because in some states, laws prohibit the state ’ s environmental protections from being more protective than the minimum federal baseline. Comments stated that environmental managers in those states will be prevented from adopting their implementation methods if EPA does not require it. EPA observes that it is true that some states prohibit the adoption of WQS more protective than the federal minimum. While EPA encourages states and authorized tribes to consider adopting more protective WQS, the final rule does not require it because EPA does not view it as necessary for adequate antideg radation implementation. The final rule retains state and authorized tribal flexibility in deciding whether or not to adopt antidegradation implementation methods or whether to keep them as non

- binding guidance documents . As stated above, EPA found that no n- binding methods can be as effective as binding methods.

EPA disagrees with comments stating that the fact that half of states have adopted their antidegradation implementation methods and put themselves in a position for EPA to conduct formal review unde r CWA section 303(c) demonstrates that requiring adoption of implementation methods is not as onerous as it might sound. I n some states and authorized tribes, adoption may not be onerous, but t he commenter did not provide an explanation for the generalization that adoption would not be onerous for other states and authorized tribes. Furthermore, EPA also received other comments from many states that adopt their antidegradation implementation methods . Those commenters said that while these states chose to adopt their methods, they specifically commented that they did not agree it should be a federal requirement but continue to be a decision left to the states. EPA does not agree that such a requirement is necessary nor does it agree that EP A should require adoption of implementation methods because half of the states already adopt. In fact, other commenters w ith direct experience working in state
programs indicated that the process of adoption is indeed onerous for their states

. The breadth of comments demonstrate that adopting implementation methods may be onerous for some states and authorized tribes but not onerous for others. As stated above, EPA found that specific state examples describing the burden of adopting implementation methods w ere compelling

. A s described elsewhere in this essay, EPA found that requiring adoption of implementation methods was not necessary, and that it is possible to achieve the protection required by the federal regulation without adding a requirement that may cause some states and authorized tribes a burden that could impede their ability to focus resources on actually implementing the regulation

. Commenters expressed specific concern s about a specific state ’ s implementation methods and concern that those metho ds may remain outside of EPA ’ s a uthority unless the state is required to adopt them

. The commenters were concerned that the state ’ s methods undermine the state ’ s legally binding policy. EPA considered these concerns and determined that regulation is not ne cessary. EPA found that to address these concerns, it was reasonable to adopt the requirement for an opportunity public involvement in development and revision of methods and making the methods publicly available

. EPAChapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption

encourages commenters and other citizens concerned about a specific state ’s or authorized tribe ’s implementation methods to bring up concerns directly with the state or authorized tribe , as this can facilitate revision of the methods to be consistent with the state ’ s or authorized tribe ’ s legally binding policy

. If a state or authorized tribe fails to consistently apply or adequately enforce their antidegradation policy , for example, by following implementation methods that undermine the policy when preparing an NPDES permit, EPA ’s recourse in this event would generally be through its oversight discretion of the relevant implementation program (e.g., NPDES). Depending on the circumstances, it may also be possible for EPA to make an Administrator ’ s Determination that new or revised W QS are needed , at the Administrator ’ s discretion

.

EPA received comments stating that EPA must not only require adoption of implementation methods but that it must require that such methods identify all activities subject to antidegradation review

. The

comm ent stated that such activities must not be limited to activities requiring an NPDES permit, and must include nonpoint source (NPS) pollution, stormwater pollution, water withdrawals and water transfers that affect water quality, best management practices (BMPs) , and activities a state or authorized tribe proposes to exempt from permitting. EPA disagrees. While it is true that antidegradation (as all other WQS) applies to water bodies and is not limited to specific types of activities, the CWA does not expl icitly require that states and authorized tribes regulate NPS activities or that certain activities cannot occur before meeting the requirements of WQS

. However, when states and authorized tribes assess whether their waters are meeting WQS every two years, they are required to list waters not meeting WQS as “ impaired, ” regardless of source of impairment

. Comments stated that no activities may be excepted from antidegradation policy and review for compliance with antidegradation policy. EPA partially agrees and partially disagrees. Part of the comment is based on a misconception. EPA clarifies here that activities may not be excepted from a state ’ s or authorized tribe ’s antidegradation policy, because the policy applies to water bodies a nd not to activities. EPA agrees that generally it is inappropriate to categorically exempt one or more types of activities from antidegradation review on the basis of the activity “ complying with the antidegradation policy. ” One exception would be that a state or authorized tribe may choose to categorically exempt NPS activities from antidegradation review (but not from the policy itself), as discussed previously. A state or authorized tribe may also choose to exempt from antidegradation Tier 2 review (but not from antidegradation Tier 1 protection) activities that fall under a de minimis threshold, as discussed in the preamble to the final rule and elsewhere in the response to comments

.

EPA agrees with commenters that water bodies or water courses that are waters of the U nited States may not be categorically excepted from states ’ and authorized tribes ’ antidegradation polic ies , because waters of the United States are subject to WQS. (Likewise, waters may not be categorically exempted from having designated uses or criteria.) However, to the extent that a water body or water course is not a water of the U.S., the state or authorized tribe with jurisdiction over the water has the discretion as to whether to provide protections under its WQS. EPA does not have authority to require that states and authorized tribes apply WQS to waters that are not waters of the U.S.

EPA disagrees with a comment stating that EPA should require states and authorized tribes to adopt implementation methods, and then promulgate method s for them if they fail to do so within one year. EPA chose not to require adoption of implementation methods for the reasons stated elsewhere in this
essay.Chapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption

EPA agrees with a comment that the language of the previously existing regulation at 40 CFR s ectio n 131.12 gives EPA the ability to examine whether states ’ and authorized tribes ’ implementation methods are consistent with section 131.12 and that “ antidegradation ” is part of WQS subject to EPA review and approval and disapproval

. EPA agrees that when states and authorized tribes adopt or revise legally binding antidegradation policies, EPA has the authority and duty to act on them under 303(c)(3). However, EPA dis agree s with comments stating that the federal regulation at 40 CFR se ction 131.12 has always “ required ” that states and authorized tribes adopt implementation methods and that EPA

“ determine ” whether states ’ and authorized tribes ’ met hods are consistent with 131.12

. Some comments cited to court opinions (CORALations v. EPA, 477 F. Supp. 2d 413, 416 (D. P.R. 2007); Ohio Valley Envtl. Coal. v. Horinko, 279 F. Supp. 2d 732, 738 (S.D. W.V a . 2003)) as saying that states must submit their antidegradation policy an d implementation methods to EPA

. EPA ’ s view is that t he previously e xisting WQS regulation required only that state and authorized tribal implementation methods be “ identified ” (131.12)

. Because the previously existing regulation required that methods be

“ identified, ” EPA did have the ability to examine states ’ and authori zed tribes ’ non

- binding implementation methods. EPA examine d them for consistency with their binding policies. However, EPA did not and does not have the authority or mandatory duty under CWA section 303(c) to approve or disapprove implementation methods that are not adopted as legally binding. 2 Commenters also cite to 40 CFR section 130.7(b)(3) which defines “ applicable water quality standards ” for total maximum daily loads ( TMDLs ) to include “ antidegradation requirements. ” EPA agr ees that this citation correctly points out that applicable WQS do include antidegradation requirements ; however, the TMDL regulations do not speak to this issue of antidegradation implementation methods, so the regulations are not relevant to this discuss ion.

EPA agrees with comment s that states should not be required to adopt into binding form provisions for antidegradation implementation that merely proscribe non

- sub stantive procedures for making decisions. For reasons stated elsewhere in this essay, the final rule does not require adoption of implementation methods.

EPA disagrees with comments that because antidegradation can affect NPDES permits, implementation methods should be adopted. The requirements of NPDES permits are affected by guidance and oth er

non

- binding documents (e.g., NPDES Permit Writers ’ Manual, Technical Support Document for Water Quality

- based Toxics Control) as well as binding requirements. There is no requirement that anything affecting an NPDES permit must be adopted into binding r egulation. EPA ’ s proposal did suggest that this may be a consideration when deciding whether or not EPA should require adoption of antidegradation implementation methods. However, EPA received comment s that there are many other guidance documents that affect NPDES permits . T hus the EPA determined this consideration was not enough to determine that it is necessary to require that antidegradation implementation methods be adopted as legally binding.

2 EPA ’ s position is con sistent with the cases cited by the commenters. In the Ohio Valley Envtl. Coal

. case, West Virginia had adopted the implementation methods into regulation , thus EPA reviewed those methods as WQS. Ohio Valley Envtl. Coal. 279 F. Supp. 2d 732
, 739 (S.D. W.Va. 2003). In addition, in CORALations v. EPA , the question for the court was whether, in the absence of Puerto Rico ’ s identification of any implementation methods, EPA had the mandatory duty to identify methods in regulatory form for Puerto R ico. EPA argued that the Agency was not required to identify methods in regulatory form. The court said that “ this is true generally for identifying methods ” but went on to find that since the implementation methods were nonexistent, EPA was required to pu blish proposed regulations pursuant to CWA section 303(c)(4)(B). CORALations v. EPA, 477 F. Supp. 2d 413, 418 (D. P. R. 2007).Chapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption

Com me nters stated that E PA should clarify that any implementation rule that affects the circumstances or conditions under which permits are granted must be adopted as a WQS and presented to U.S. EPA for approval. They pointed to court cases to support the state ment that if a state or authorized tribal rule has the actual effect or practical impact of a standard, it is a standard and must be subject to EPA action (Florida Pub. Interest Research Group v. U.S. EPA, 386 F.3d 1070, 1088

- 9 (11t h Cir. 2004); Northwest Environmental Advocates v. U.S. EPA, 855 F. Supp. 2d 1199, 1211 (D.Ore. 2012); Ohio Valley Environmental Coalition v. Horinko, 279 F. Supp. 2d 272, 763

- 65 (S.D. W. Va. 2003).) Commenters argued that binding, substantive provisions in states ’ and authorized tribes ’ antidegradation implementation rules have a practical effect on the meaning of WQS because they affect whether permits are granted and the water quality

- based effluent limits ( WQBELs ) in those permits, the circumstances in which degradation may be allowed, substantive decisions in 401 certifications, and whether waters are listed under 303(d). Some commenters stated that when implementation methods are applied this way, they have a practical effect on the meaning of WQS and are WQS. Commenters
stat ed that whether a state or authorized tribe calls their legally binding antidegradation implementation methods an “ implementation rule ” or something else, and no matter where it appears in its rules, it is subject to EPA action under CWA 303(c). EPA agrees with all of the above statements, and points out that the key is that states ’ and authorized tribes ’ antidegradation implementation methods constitute WQS subject to EPA action under CWA 303(c) when they are adopted as legally binding. When antidegradation implementation methods are not adopted as legally binding, the antidegradation standards that other implementation programs must use (e.g., for developing WQBELs or for deciding whether a water will be 303(d) listed) are the provisions of the legally bin ding, EPA

approved antidegradation policy. Commenters stated that EPA should caution states and authorized tribes to make sure that they submit every binding rule that has the effect of a WQS to EPA for review and approval whatever they want to call the rule. EPA encourages states and authorized tribes to submit their legally binding antidegradation implementation methods to EPA for review and action. H owever,

even if a state or authorized tribe fails to submit them, EPA has authority to act on such methods as discussed in EPA ’ s 2012 FAQs titled “ What is a New or Revised WQS under CWA section 303(c)(3) ” found
at htt p://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm

.

EPA disagrees with commenters stating that the list of mi nimum elements for implementation methods that EPA had outlined in the proposal preamble was evidence that major elements of antidegradation implementation methods have practical effects, and therefore are WQS that must be adopted as legally binding. As EPA has discussed in this essay , while such elements are indeed minimum elements of an antidegradation implementation method that is consistent with an antidegradation policy, at this time EPA has conclud ed that it is unnecessary for any or all of these elements be binding in order to be consistent with the antidegradation policy

. A state or authorized tribe ’ s antidegradation policy are the ultimate WQS that have practical effect through implementation act ions consistent with that policy. Where states and authorized tribes adopt their implementation methods, then those serve as additional applicable WQS. However, where they remain as guidance, implementation must continue to be consistent with the policy, h owever the state or authorized tribe chooses to implement the policy.

Some c ommenters expressed concern regarding how guidance is used or cited in NPDES permits when there are no underlying rules. Such comments were not directly about antidegradation guidance but commenters were concern that the same issues could be raised if antidegradation implementation methods were not required to be adopted. Based on the comments, as written, this comment relate s to how NPDES permits are written and defended, and is ou tside the scope of this rulemaking.Chapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption

EPA disagrees with comments that state and authorized tribal antidegradation implementation methods often amend, revise, or abandon the antidegradation standards adopted by states and authorized tribes. Commenters provid ed no evidence that states ’ and authorized tribes methods “ often ” are inconsistent with their legally

- binding policies. EPA ’ s position is that non

- binding methods cannot amend, revise, or abandon the legally binding antidegradation policy. Just because a s tate or authorized tribe may choose to act contrary to its own legally binding, CWA

- effective WQS does not mean that the WQS have changed; rather, it indicates failures of implementation. EPA has discretionary oversight authority for programs that implemen t WQS. For example, EPA has the discretionary authority to object to an NPDES permit that fails to appropriately implement applicable WQS. EPA also has discretionary authority to make an Administrator ’ s Determination that new or revised WQS are necessary. Decisions to exercise oversight authority over implementation or to make an Administrator ’ s Determination are made on a

case

- by

- case basis.

Commenters stated that due to the current deficient state and authorized tribal antidegradation implementation methodologies, to date the effluent limitations based upon TMDLs and wasteload allocations ( WLAs ) established under CWA section 303(d) have not complied with the antidegradation policy established under the CWA as mand ated by CWA section 303(d)(4)(B). The commenter did not provide any evidence to support a claim that this failure is a result of the lack of binding antidegradation implementation methods. As discussed earlier, such failure could occur whether or not imple mentation methods are legally binding.

EPA disagrees with comments stating that if states have compiled methods in guidance documents the result is a “ hodgepodge ” that is not appropriate for this key aspect of sta te or authorized tribal WQS

. EPA ’ s view is that provided a state or authorized tribe has a legally binding antidegradation policy consistent with the CWA and 131.12, it is possible to have effective implementation methods in guidance just as it is possible to have effective implementation methods f or any subject area in guidance (e.g., variance policies, low flow policies, designated use policies, mixing zone policies, etc .). The key is that such implementation methods are consistent with the state ’s or authorized tribe ’ s own applicable, CWA

- effecti ve regulations

. Today ’ s rule makes clear that EPA has the authority to review and approve or disapprove any implementation method, including antidegradation implementation methods that states and authorized tribes adopt as legally binding. As explained elsewhere in this essay, the statement of this authority in rule does not create a new requirement, but clarifies the longstanding requirement to prevent confusion.

Commenters provided a state

- specific example involving a court case related to a state ’s imple mentation methods and EPA action, and cited concerns about that state ’ s implementation methods. S tate

- specific concerns are outside the scope of this national rule since EPA is not promulgating standards for individual states . However, commenters used the specific state example as an illustration of their point that EPA should promulgate a requirement that all states and authorized tribes adopt their implementation m ethods, because there is no other way for EPA to achieve its stated goal that: “sta tes and tribes must develop and make available to the public antidegradation implementation methods to improve program implementation, ensure consistency with the CWA, and provide transparency as to applicable state and tribal antidegradation review requir ements. ” Fed. Reg. at 54529. They asked what EPA will do when a state demonstrates that its non

- binding implementation methods are not sufficient to ensure implementation and are not consistent with the C WA. Other commenters cited to ManaSota

- 88, Inc. v. T idwell, 896 F.2d 1318, 1320 (11th Cir. 1990) as evidence that the state antidegradation policy and implementation criteria must be “ consistent with and at least as stringent as the federal anti

- degradation rule. 40 C.F.R. 131.12. ” Commenters used this conc lusion asChapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption

evidence that EPA must require adoption of antidegradation implementation methods so that EPA has the ability to take action and ensure that states ’ and authorized tribes ’ methods are “ consistent with and at least as stringent as ” 131.12. EPA agr ees that states ’ and authorized tribes ’ antidegradation implementation methods must be “ consistent with and at least as stringent as ” 131.12, but does not agree that it follows that antidegradation implementation methods must be adopted. While EPA would

no t have the authority to disapprove non

- binding implementation methods, EPA has other means of

recourse. Depending on the specific circumstances, EPA may be able to disapprove a state ’s or authorized tribe ’s new or revised legally binding antidegradation policy if its accompanying implementation methods are inconsistent with its antidegradation policy, the Act, and /or section 131.12. The EPA Administrator may be able to make an Administrator ’ s Determination that a state or authorized tribe needs new or revised WQS. ( Administrator ’ s Determinations are at the Administrator ’ s discretion. ) Finally, EPA has the discretionary authority to object to state or authorized tribal permits for activities affecting water quality if such permits are written to implement the inconsistent implementation methods and are thus do not derive from and comply with the applicable WQS, in this case the state ’ s or authorized tribe ’ s antidegradation policy

. The previously existing antideg radation regulation required that “ the state shall develop and adopt ” an antidegradation policy, and that the state shall “ identify ” implementation methods. EPA agrees with a comment that its proposal to change the regulatory text from requiring that state s and authorized tribes

“ identify ” implementation methods to requiring that they “ develop ” implementation methods did not add anything to the previously existing regulation. (If a state or authorized tribe can “ identify ” its implementation methods, logical ly, it must have “ developed ” such methods.) The intention of the proposal was to make explicit the requirement to develop an antidegradation implementation method as some did not interpret “ identify ” in that manner, as shown in some of the comments received on this rule. The final rule provides clarity by making the requirements parallel by using the word “ develop ” :

“ The State shall develop and adopt a statewide antidegradation policy ” and “ The State shall develop methods for implementing the antidegradation policy ...” and “ The State shall provide an opportunity for public involvement during the development and any subsequent revisions of the implementation methods, and shall make the methods available t o the public .” With this structure, it is clear that both policy and methods must be developed, while only the policy must be adopted.

EPA received a comment stating that EPA frequently approves “ sometimes questionable state WQS, particularly antidegradati on requirements, on the promise of a state to interpret or apply the requirement in a particular way. ” The comment also cited concern about a specific state ’s implementation, and stated that citizen advocates reported problems to EPA because EPA did not di scover the problems through monitoring state compliance. The commenter stated that this places unfair burdens on citizens to do EPA ’ s job. The comment er further stated that state promises regarding implementation must be incorporated into state rules and s ubject to EPA action in order to ensure that states follow through on them, and to create disincentives for states to apply antidegradation requirements in a manner inconsistent with their representations to EPA and the public. EPA agrees that adopted meth ods a re more likely to facilitate consistent implementation than methods in guidance. However, EPA disagrees that adopted methods “ ensure ” that states follow through. Adoption of implementation methods in rule does not ensure that anything specific will be implemented. It simply provides additional avenues for the public to challenge situations in which there is a failure to appropriately implement those methods

. As discussed in this essay, EPA ’ s possibilities for recourse where states fail to implement ant idegradation requirements consistent with their CWA effective antidegradation policy remain the same regardless of whether or not the antidegradation implementation methods are legally binding. In addition EPA ’ s requirement that states and authorizedChapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption

tribe s provide an opportunity for public involvement on the development and subsequent revision of an antidegradation implementation method provides the expectation that the public is fully involved and informed of the antidegradation implementation methods whether they are binding or not.



### C. **Comments T**  **hat S**  **upport R**  **equiring P**  **ublic A**  **vailability of I**  **mplementation M**  **ethods**

EPA received comments supporting the proposed requirement that states and authorized tribes make their antidegradation implementation methods available to the public. EPA agrees with commenters that some states have implementation methods in guidance that are unknown t o the public and regulated community, and that this lack of transparency is problematic. EPA also agrees with the goal of ensuring that antidegradation policies are consistently implemented throughout the country. (States and authorized tribes need not imp lement their policies identically to one another; but implementation should be consistent at least at a basic level.) EPA agrees with comments stating that the public has a right to know how states and authorized tribes intend to implement the CWA and have input on state and authorized tribal decision

- making processes. EPA also agrees with the importance of public participation for the regulated community and other stakeholders. EPA also agrees that state and authorized tribal rulemakings can be a vehicle to achieve public participation requirements. Commenters stated that requiring adoption of implementation methods would enhance public participation and provide transparency and accountability in the development of implementation methods. Commenters also stated that this would lead to greater consistency nationwide.

EPA also agrees with comments suggesting that the proposal did not go far enough because it did not provide for public participation in the development or revision of antidegradation methods, as it only requires a state to “ make available ” the antidegradation implementation methods after development. EPA incorporated the commenter ’ s suggestion of enhancing the public ’ s ability to provide input , rather than simply allowing the public to view antide gradation implementation methods after they are finalized or changed.

Thus, for the reasons stated throughout this essay, the final rule requires that antidegradation implementation methods be available to the public and it requires that states and authori zed tribes provide an opportunity for public input in development of and subsequent revision of antidegradation implementation methods.



### D. **Comments T**  **hat O**  **ppose R**  **equiring P**  **ublic A**  **vailability of I**  **mplementation M**  **ethods**
EPA disagrees with commenters who opposed the proposed requirement that states and authorized tribes make their antidegradation implementation methods available to the public. EPA explains elsewhere in this essay the reasons why EPA ’ s final rule requires implementation methods be made avai lable to the public. The final rule requires that antidegradation implementation methods be available to the public and it requires that states and authorized tribes provide an opportunity for public input in development of and subsequent revision of antid egradation implementation methods.

Some commenters expressed concern that there is no differentiation between “ procedures ” (which would be public as a result of EPA ’ s rule ) and internal guidance and standard operating procedures (SOPs) . EPA recognizes that states and authorized tribes may rely on internal guidance or SOPs for some details about implementation. As long as the state ’ s or tribe ’s antidegradation implementation methodsChapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption

document(s) address, at a minimum, how all the elements required by the regulation at 40 CFR s ection 131.12 will be implemented, the state or authorized tribe may choose to address other aspects of implementation or more minute details in internal documents that are not publically available . Those internal documents should support and be consistent with the antidegradation implementation methods, rather than contradict them. The goal of the requirement is to ensure that the public can obtain a realistic understanding of how the antidegradation policy will be implemented and has an opportunity to provide input

.

Some commenters stated that t here is already transparency in the regulations that allows public participation through states ’ and authorized tribes ’ own processes, i.e.
, the NPDES permits process. EPA agrees that other process es, such as the NPDES permit public notice comment period, provide an opportunity for public input . However, the public must have access to information on how states and authorized tribes will implement antidegradation ahead of the method actually being us ed . This allows them to be prepared to examine how a state or authorized tribe will implement antidegradation requirements related to a specific activity (e.g., one proposed for an NPDES permit) in light of the state or authorized tribe ’ s own antidegradation policy and to provide public input, accordingly so as to influence those decisions . The final rule requires states and authorized tribes to provide an opportunity for public involvement in the development and revision of implementation met hods, so that they may have meaningful influence on how the state protects its public water resources from degradation . That is, the public could help shape the implementation methods that will be used for many activities in the future, rather than simply having to comment when they object to the treatment of each individual proposed activity.

EPA disagrees with comments that opposed the proposed requirement that antidegradation implementation methods be available to the public on the grounds that the requi rement would inappropriately expand EPA ’ s review authority because implementation methods aren ’ t WQS and aren ’ t subject to review. The final rule does not make all states ’ and authorized tribes ’ implementation methods subject to EPA review under 303(c). Im plementation methods that are not adopted as legally binding are not subject to EPA review under 303(c). The requirement to make the antidegradation implementation methods available to the public and to provide an opportunity for public input is independen t of whether EPA required all states and authorized tribes to adopt antidegradation implementation methods as legally binding.

EPA disagrees with comments that opposed the proposed requirement that antidegradation implementation methods be available to the public on the grounds that it is not necessary since 40 CFR

s ection 131.20(b) already requires states to hold public hearings for reviewing WQS, and 40 CFR s ection 122 and 40 CFR Part 25 have other requirements for public participation. These cited requir ements apply to new or revised WQS but do not impose any obligation on antidegradation implementation methods that are not adopted as legally binding by a state or authorized tribe. Thus, without today ’s requirement s some states ’ and authorized tribes ’ implementation methods may not be available to the public and the public may have no avenue to provide input on the antidegradation implementation methods before such methods are finalized and used

.Chapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption



### E. **Comments Q**  **uestioning H**  **ow the R**  **ulemaking A**  **ffect s S**  **tate and**  **A uthorized**  **T ribe**  **A ntidegradation**  **P olicies and**  **I mplementation**  **M ethods**  **A lready**  **A pproved by EPA** 
Commenters asked EPA to clarify whether s tates can presume that the approvability of their currently approved antidegradation policies will not be affected by this rulemaking as the rulemaking does not seem to establish any new requirements or limitations on the scope of implementation. The final rule contains revised requirements at 40 CFR P art 131.12. States and authorized tribes should not presume that their currently approved antidegradation policies (and implementation methods, where applicable) will be unaffected by the final rule. EPA recommends states and authorized tribes evaluate their program for consistency with the final regulation at 40 CFR P art 13 1.12. The rulemaking process is established recognizing that the Federal regulations may need to change in order to better meet the objectives of the CWA as new environmental challenges arise and new science is developed. EPA is ready to assist any state or authorized tribe in evaluating their currently applicable antidegradation requirements to determine whether and what revisions are necessary to comply with the new requirements. EPA understands that any potential revisions may take time. Thus, the preamb le to the final rule clearly explains “ EPA ’ s expectation is that, where a new or revised requirement necessitates a change to state or authorized tribal WQS, such revisions will occur within the next triennial review that the state or authorized tribe init iates after publication of the rule. ”

A commenter stated that the proposal appears to presume that states have adopted an antidegrada tion policy in state regulation. EPA agrees with this statement. States and authorized tribes were already required , prior to this rulemaking, to have adopted an antidegradation policy as a legally binding document. The commenter stated that a specific state has adopted an antidegradation policy which has been approved by EPA, though the policy is not inco rporated into state regulation, and that since it was approved by EPA, it meets the federal requirement for state adoptio n of an antidegradation policy. EPA will not comment here on state

- specific scenarios, but recommends that states and authorized tribes work with their EPA Regional offices to determine whether any changes are needed. EPA does point out, however, that a document can be legally binding under state or tribal law but exist outside of state regulations.



### F. **Comments A**  **sking W**  **hether the N**  **ew R**  **ules A**  **pply to P**  **reviously S**  **ubmitted W**  **ater Q**  **uality S**  **tandards**
A comment expressed concern that EPA action on a specific state ’ s WQS submission will be delayed by EPA ’ s rulemaking. The commenter stated that EPA should judge a submission by rules in effect at time of submissi on, not proposed/future regulations. EPA has addressed this issue in section E of the preamble to the final rule.



### G. **Comments T**  **hat EPA M**  **ust S**  **top R**  **elying on G**  **uidance and P**  **olicy a**  **s I**  **f I**  **t W**  **ere R**  **ule**

EPA received comment stating that EPA ’ s use of interim guidance, unadopted rules, draft policies and

“ reinterpretations ” of existing rules must cease. Draft and interim documents should not be enforced as though they were adopted rules. EPA agrees that guidance, draft rules and policies are no t the same as regulations and EPA does not operate as such. EPA ’s authority to approve or disapprove states ’ and authorized tribes ’ WQS under CWA 303(c) is based solely on whether the new or revised WQS are consistent with the CWA and the WQS regulation. T herefore, EPA chose to make today ’ s targetedChapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption

revisions to place important requirements in the regulations (instead of in guidance documents which are unenforceable). The regulatory requirements will increase transparency and promote consistency.



### H. **Comment s**  **R equesting**  **C larification on**  **C ertain**  **I ssues** 

Commenters asked for clarification on EPA ’ s intent. A commenter stated that E PA ’ s proposed language:

“ (b) The State shall develop and make available... ” could be read to require states to include or reference thei r antidegradation implementation methods in their state WQS , and requested that EPA clarify what is being required. The proposed language did not require that states include methods in, or rule

- reference methods in their WQS. It required that methods be de veloped and publicly available.

A commenter asked if states will be required to subject their implementation methods to the same public review and approval process as state WQS. While not required to be adopted by the final rule, if a state or authorized t ribe adopts an antidegradation implementation method as legally binding, and EPA determines that the method is a new or revised WQS (for more information, please see http://wat er.epa.gov/scitech/swguidance/standards/cwa303faq.cfm ), then the method will be subject to EPA review and approval or disapproval under CWA section 303(c). It is also subject to the same public participation requirements as any other new or revised WQS. If a state or authorized tribe does not adopt their methods as legally binding, the final rule requires that the s t ate or authorized tribe provide an opportunity for public involvement which gives states and authorized tribes the discretion to choose how to involve the public . EPA chose not to require states to follow the requirements at 40 CFR section 131.20(b) and Part 25 for their antidegradation implementation methods ; instead, the final rule requirement for “ public involvement ” will achieve the goal o f public transparency and engagement while retaining flexibility for states and authorized tribes in terms of how to engage the public

. Please
see t he preamble to the final rule for additional discussion of these requirements

. A commenter stated that two statements in the proposal were contradictory: that states may choose to adopt implementation methods ( 131.5(a)(3)) and that states “ shall develop ” implementation methods (131.12(b)). EPA disagrees. These statements are not contradictory. States and authori zed tribes were already required to “ identify ” implementation methods under section 131.12(a) prior to today ’ s final rule . For a n antidegradation implementation method to be “ identified, ” it would first need to be

“ developed .” The requirement to “ develop ” antidegradation implementation methods was thus already a requirement. While all states and authorized tribes must develop antidegradation implementation methods, the proposal and the final rule clarify that adopting such methods in a legally binding mann er is at the state ’ s or authorized tribe ’ s discretion . This does not contradict the pre

- existing requirement to identify (which would include develop ing) implementation methods.

A commenter requested clarification on EPA ’ s intentions in the preamble discus sion at section E on page 54525 of the Federal Register Vol. 78, No. 171 describing the change to the regulation as “ specifying that states and tribes must develop and make available to the public implementation methods for their antidegradation policies. ” The commenter asked whether EPA intends to require implementation methods. EPA already required implementation methods (per the previous version of 131.12 to

“ identify ” methods) and still requires implementation methods. The commenter asked whether EPA in tends to require adoption of implementation methods into standards or not. EPA requested comment on that very point in order to decide whether to require adoption of methods. The final rule does not require it.Chapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption



### I. **Comments T**  **hat EPA S**  **hould R**  **evise L**  **anguage to C**  **larify T hat**  **A ntidegradation**  **I mplementation**  **I s**  **O nly through**  **P ermitting** 
EPA disagrees with a request that EPA add regulatory text to clarify that antidegradation implementation in permitting a lone is an approvable approach, in order to prevent future litigation. As a component of WQS, antidegradation is broadly applicable to water bodies, not only to “ permitted ” activities. Many different types of activities can affect water quality and trigger antidegradation review, and not all of these are regu lated by state or authorized tribal “ permits. ” For example, a federally

- issued Federal Energy Regulatory Commission license could allow an activity affecting water quality. In that case, the relevant state or authorized tribe should ensure that its antideg radation policy is implemented in its 401 certification of the activity. Since antidegradation applies to water bodies, some states and authorized tribes may use their discretion to implement antidegradation review for NPS activities over which the federal government does not have authority. On the other hand, states and authorized tribes may choose not to regulate NPS pollution, and EPA may not force them to implement antidegradation review for NPS activities. H owever, it is important to note that determining whether to list a water under CWA 303(d) as not meeting WQS, is irrelevant of the pollutant source, even if the cau se of impairment is NPS

- related. Please see response essay 7.g.iii, sections D, K, and M for additional discussion.



### J. **Comments r**  **egarding EPA**  **’s I mplementation of**  **A ntidegradation** 
A commenter noted that EPA does not itself appear to have an antidegradation policy because none of the NPDES general permits have addressed antidegradation. The application of antidegradation policy to
gene ral permits is outside the scope of this rulemaking. EPA ’ s federal antidegradation policy is at 40 CFR section 131.12.



### K. Comments **r egarding the**  **M inimum**  **E lements** 
For a response to comments on concerns that states and authorized tribes should no t be require d to adopt new policy or regulations as a result of today ’ s rule, please see response essay 7.g.ii, section B.



### L. Comments **C oncerned with the**  **A nalysis of**  **A lternatives**  **R equirement** 
For a response to concerns that the analysis of alternatives requirements are onerous, essentially forces the states to perform a use attainability analysis ( UAA ) , and is contrary to federalism under the CWA, please see response essay 7.e.ii, sections C, E, F, G, K, and O.



### M. Comments **r egarding the**  **A ddition of**  **“B ased on**  **S ound**  **S cientific**  **R ationale**  **”**
For a response to comments regarding the addition of “ based on sound scientific rationale ” in section 131.5(a)(2), please see response essay 10.a.



### N. Comments **T hat EPA**  **I s**  **W riting**  **I mplementation**  **M ethods for**  **S tates** 

EPA receive d some comm ents stating that “ EPA is proposing first to write implementation methods for the states and then to review the states ’ adoption of them to make sure the states get them right. ” EPA disagrees. EPA ’ s regulations are not federal implementation methods. EPA ’s final regulations require states and authorized tribes to adopt an antidegradation policy and to develop an antidegradationChapter 3 – Response Essays 7.f.i – Antideg I mp M eth – Transparency /A doption

implementation method, both of which must be consistent with the provisions in section 131.12(a). S ection 131.12(a) provides requir ements for protecting water quality but leaves discretion to states and authorized tribes as to how such requirements will be met as long as it is consistent with section 131.12(a). EPA ’ s regulations, prior to this rule, was structured in the same way. EPA ’ s final rule only provides clarifications to ensure that state and authorized tribal antidegradation policies continue to be consistent with the CWA and to enhance opportunities for public involvement in the development and revision of antidegradation imp lementation methods.



### O. Comments **r egarding**  **R esubmission of**  **A ntidegradation**  **Policies**
For a response to comments that states need not resubmit their antidegradation policy when submitting a new or revised use or water quality criterion, please see response essay 7.g.iii, section L.



### P. Comments **r egarding**  **P rotection of**  **E xisting**  **U ses**  **and L**  **imit ing the**  **A pproaches to**  **I dentifying**  **H igh**  **Q uality**  **W aters** 
For a response to comments regarding requiring that antidegradation implementation methods include the protection of existing uses, please see response essay 7.g.iii, section I.

For a response to commen t s regarding limiting the identification of high qual it y waters to the parameter

- by

- parameter approach, please see response essay 7.d.ii.



### Q. Comments **r egarding**  **W hat**  **E lements**  **M ust**  **B e in a**  **S tate**  **P olicy to**  **B e**  **C onsistent with 131.12(a)** 

EPA received a comment that its revision to section 131.5 “ does n ot provide any clarity on what elements a S ta te ’ s antidegradation policy must include to be considered consistent with section 131.12(a). ” 40 CFR 131.5 is purely an articulation of what EPA has the authority to review, which is why there is no additional detail in this section. However, EPA disagrees with the commenter that 131.12(a) is vague. EPA has written section 131.12(a) to provide the minimu m requirements for antidegradation protection consistent with the CWA and these minimum requirements must be included in all antidegradation state policies. States and authorized tribes continue to have discretion on how to implement antidegradation to ens ure the policy is met. Please see further discussion in the preamble to the final rule. In addition, by not requiring antidegradation implementation methods to be adopted, states and authorized tribes continue to have the flexibility to refine their implem entation, as needed, as long as they provide an opportunity for public input.Chapter 3 – Response Essays 7.f.ii – Antideg Imp Meth – General



## Essay 7. **f. ii**  **– Antideg**  **radation Implementation Methods**  **: General Comments on I**  **mplementation of Implementation Methods** 

**A. Comments**  **That Antidegradation Implementation Methods Are Key to**  **Antidegradation Policy Success**
The U.S. Environmental Protection Agency ( EPA ) agrees with comments pointing out that states’ and tribes’ implementation methods for antidegradation are key to the policy ’ s success. EPA’s view is that implementation methods are not only a longstanding requirement of the regulations, but are an im portant component that supports the implementation of antidegradation policies.



### B. **Comments That Antidegradation**  **Implementation Methods Are Not Subject to EPA**  **Review**
To the extent that some comments imply that state and tribal implementation methods are no t subject to EPA review under any circumstances, EPA disagrees with those comments. If a state or tribe does not adopt its methods into binding form, it is true that EPA does not have authority to take an action under Clean Water Act ( CWA ) 303(c) to approv e or disapprove those methods. However, EPA does have authority to take 303(c) action on any state’s or tribe’s legally b inding implementation methods, as explained in the preamble to the final rule. Please see response essay 7.f.i, section A for additiona l discussion.



### C. **Comments r**  **egarding Basing 303(d)**  **Listing of Waters**  **on Antidegradation**  **Requirements**
For a response to comments that EPA should specify that antidegradation is only implemented through permitting and that antidegradation should not be a basis for CWA 303(d) listing of waters, please see response essay 7.e.ii, section N, response essay 7.f.i, section I, and response essay 7.g.iii, sections C, D, and K.Chapter 3 – Response Essays 7.g – Antideg – Min Elements



## Essay **7.g – Antideg**  **radation: Min**  **imum Elements**  **of an Antidegradation Implementation Method** 

No comments are assigned to this issue category, and thus no response is necessary.Chapter 3 – Response Essays 7.g.i – Antideg ME – Supp ID in Preamble



## Essay 7. **g .i**  **– Antideg**  **radation Minimum Elements**  **: Agreeing with Identifying Minimum Elements in Preamble** 

**A. Comments**  **Supporting the Identification of**  **Minimum Elements of**  **Implementation Methods** 

Some comments support the identification of minimum elements of state and authorized tribal antidegradation implementation methods and some comments agree with the U.S. Environmental Protection Agency’s ( EPA’s ) statements in the proposal preamble t hat the minimum elements should be based on the existing requirements of section 131.12. EPA chose to not include a list of minimum elements in the final rule language. Minimum elements of antidegradation implementation methods are addressed in the preambl e to the proposed rule.

Some c ommenters u rged EPA to avoid further steps as they would be unnecessary and inconsistent with the federal/state division of responsibility required by Clean Water Act ( CWA ) 303. EPA agrees. Minimum elements of antidegradation implementation methods should be based on the regulatory requirements at section 131.12. The final rule continues to provide s tates and authorized tribes with discretion to decide how to address the elements of implementation methods; however, t he elements must be consistent with section 131.12 and not undermine the state’s or authorized tribe’s antidegradation policy . Furthermore, states and authorized tribes have discretion to decide whether they address additional elements of antidegradation implementati on beyond the minimum elements expressed in section 131.12

.



### B. **Comments Asking EPA to**  **Include a**  **List of Required Minimum Elements**  **of Implementation Methods into the**  **Regulatory Text at Title**  **40 of the**  Code of Federal Regulations **Section 131.12** 
EPA disagrees with comments arguing that EPA should incorporate the list of minimum elements of implementation methods into the regulatory text of Title 40 of the Code of Federal Regulations ( CFR )

s ection 131.12.

EPA explained in th e preamble to the proposed rule that the purpose of including the list of minimum elements in the preamble was to facilitate states’ and authorized tribes’ development of implementation methods that are consistent with the water quality standards ( WQS ) regulation. The preamble ex plained that t he list was based on requirements currently found in the federal antidegradation regulation, as well as proposed requirements. It also explained that how states and authorized tribes address each of these areas in their methods is within their discretion, as long as it does not undermine their antidegradation policy or is otherwise inconsistent with the Act or EPA’s regulations. The elements derive from the elements of the regulation, which states and authorized tribes are already required to address in their antidegradation policies. Including such elements in regulation would be redundant of the regulation. EPA will consider providing a final list of minimum elements to facilitate antidegradation implementation in future antidegradation guida nce documents based on the final rule requirements

.Chapter 3 – Response Essays 7.g.i – Antideg ME – Supp ID in Preamble



### C. **Comments Requesting**  **EPA to Revise**  **Section 131.6 to**  **Specify Implementation Methods Must**  **B e Included**  **in Submissions**  **of W ater**  **Q uality**  **S tandards**  **to EPA**
EPA disagrees with a comment requesting that EPA revise 40 CFR s ection 131.6 (Minimum requirements for submission) to specify that the implementation methods must be included in states’ and authorized tribes’ submissions of WQS to EPA.

EPA considered revis ing the rule to require that all states and authorized tribes adopt the entirety of their antidegradation implementation methods in rule to improve accountability and transparency, as

some commenters suggested. EPA did not make this change because it would limit states’ and authorized tribes’ ability to easily revise their implementation methods in order to adapt and improve antidegradation protection in a timely manner. S ome states and authorized tribes have difficulty adopting their methods because of res ource constraints, state or tribal laws, or complex rulemaking processes. Instead of requiring adoption of implementation methods, today’s rule achieves more accountability by establishing specific requirements for states’ and authorized tribes’ antidegrad ation policies regarding two key aspects of Tier 2 implementation. Section 131.5(a)(3) makes explicit EPA’s authority to review states’ and authorized tribes’ antidegradation policies and any adopted antidegradation implementation methods and to determine whether those policies and methods are consistent with section 131.12

. EPA recommends states and authorized tribes adopt binding implementation methods to provide more transparency and consistency for the public and other stakeholders and to increase accou ntability. If a state or authorized tribe does not choose to adopt the entirety of its implementation methods, EPA recommends adopting, at a minimum, any antidegradation program elements that substantively express the desired instream level of protection a nd how that level of protection will be expressed or established for such waters in the future.

In any case where a state or authorized tribe has implementation methods that are not legally binding, the final rule requires that those methods be publically available and consistent with section 131.12(a)

. EPA does not have authority to review and approve or disapprove as a WQS pursuant to CWA section 303(c) any state antidegradation implementation methods that are not adopted as legally binding provisions

. However, having antidegradation implementation methods publicly available, consistent with section 131.12 and the state’s antidegradation policy will provide more transparency and consistency for the public and other stakeholders to be involved and help pr ovide accountability. Section 131. 5 (a)(3) now makes clear that under section 303(c) of the CWA, EPA will review and approve or disapprove state

- adopted WQS, and the review includes a determination whether the state has adopted an antidegradation policy tha t is consistent with section 131.12 and whether any adopted antidegradation implementation methods are consistent with section 131.12.



### D. **Comments Suggesting Changes**  **to the List of**  **Minimum Elements**

Some c ommenters provided several additional elements that EPA should include as minimum elements:

• A process for ensuring existing uses are protected under Tier 1 protections.

• A method for reviewing all reasonable alternatives to a new or increased discharge as part of a Tier 2 review and a requirement that discha rge limits be set based on the least polluting, reasonable alternative.

• A description of the factors and process for determining if a new or increased discharge will accommodate “important” social or economic development.Chapter 3 – Response Essays 7.g.i – Antideg ME – Supp ID in Preamble

• A description of the public notice and comment requirements.

• An explanation of both the process for designating and for protecting Tier 3 waters (also known as Outstanding National Resource Waters (ONRW s) , Outstanding Resource Waters, or other
state

- specific names).

While EPA agrees that these elements suggested by commenters would be useful elements to include in antidegradation implementation methods, EPA’s position is that the minimum elements of antidegradation implementation methods are those that are consistent with 40 CFR s ection 13 1.12. EPA
encourages states and authorized tribes to consider including these additional elements suggested by the commenter and other elements that the state or authorized tribe deems appropriate

. While the elements identified by the commenter relate clos ely to those in EPA’s list, they provide an additional level of detail than what is provided for in the specific regulatory language itself and could be considered
to go beyond the requirements of that regulatory provision s. EPA will consider providing a f inal list of minimum elements to facilitate antidegradation implementation in future antidegradation guidance documents based on the final rule requirements.Chapter 3 – Response Essays 7.g.ii – Antideg ME – Opp ID in Preamble



## Essay 7. **g .ii**  **– Antideg**  **radation Minimum Elements**  **: Disagree with Identifying M**  **inimum Elements in Preamble** 

**A. Comments**  **T hat EPA**  **D oes**  **N ot**  **H ave the C**  **lean W**  **ater A**  **ct A**  **uthority to E**  **stablish M**  **inimum E**  **lements for**  **A ntidegradation**  **I mplementation**  **M ethods** 

The U.S. Environmental Protection Agency ( EPA ) received comment s that EPA does not have the Clean Water Act ( CWA ) authority to establish “ minimum requirements ” for antidegradation implementation methods and that EPA is improperly establishing “ regulatory requiremen ts ” through the minimum elements listed in the preamble. Some c ommenters also stated that under the CWA, states with primacy are given the authority to implement their water quality standards ( WQS ) , as long as they are not inconsistent with the Act and that such requirements infringe on this authority.

EPA disagrees. EPA did not use the preamble to impose regulatory minimum requirements on antidegradation implementation methods. The list of minimum elements that EPA included in the preamble to the propos al was derived from the elements already required by Title 40 of the Code of Federal Regulations ( CFR ) section 131.12, plus elements proposed to be included at 131.12. The list provided in preamble was solely to provide guidance for states and authorized t ribes to use when developing and revising their own antidegradation implementation methods. EPA’s regulations at section 131.12, even before this final rule, w ere clear that both a state’s/ authorized tribe’s antidegradation policy and implementation method s must be consistent with the requirements at section 131.12(a). The elements themselves would not constrain how states and authorized tribes implement the policy

. S tates and authorized tribes continue to have authority to implement their own WQS consisten t with the CWA.

Some c ommenters asked why minimum elements to “facilitate” State’s development of methods are necessary “after States’ antidegradation policies have been in place for 30 years.” These same commenters thought that EPA’ s inclusion of minimum elements is an “illegitimate way for the agency to attempt to control how States develop their antidegradation procedures.” For the same reasons discussed elsewhere in this essay , EPA disagrees. In regards to why “facilitation” is needed, while states and authorized tribes have had antidegradation policies for 30 years, questions have been raised through litigation regarding whether some state and authorized tribal antidegradation implementation methods are in fact consistent with the regulatory requiremen ts and the CWA. As discussed in the preamble to both the proposed rule and the final rule, protection of high quality waters is critical to supporting economic and community growth and sustainability because they contribute to our public health, drinking w ater supplies, welfare of families and communities, tourism, and support unique and significant ecologies and species habitat. EPA received feedback from stakeholders that existing CWA antidegradation regulatory provisions and related guidance have not been fully successful in ensuring consistent and effective implementation of Tier 2 high quality water protection. Therefore, EPA’s final rule with its targeted revisions are intended to enhance this protection, promote consistency and increase transparency. The minimum elements are an articulation of these various pieces that the regulation requires must be addressed by implementation methods and includes the new requirements added in today’s final rule

.Chapter 3 – Response Essays 7.g.ii – Antideg ME – Opp ID in Preamble

Some commenters disagree d with EPA establishing require ments for state antidegradation implementation methods in proposed section 131.12 and to review state antidegradation policies for consistency with those minimum requirements in proposed section 131.5(a)(3). They stated that the previously existing regulat ion at 40 CFR section 131.12 and at 40 CFR section 131.6 already “ apply (or exceed) [ the ] maximum extent of EPA's authority over state antidegradation policies under the CWA ” and that because the CWA does not specify elements of implementation procedures, those elements are most properly determined by the states

. EPA disagrees. Under the CWA, EPA has the authority to promulgate regulations necessary to administer and implement the purposes of the Act, which includes antidegradation. See CWA section 501(a). EPA acknowledges that the CWA does not specify elements of implementation procedures . However, EPA’s regulations establish specific requirements for all states and authorized tribes to follow in order to meet the purposes of the Act to “maintain the chemic al, physical and biological integrity of the Nation’s waters.” The preamble to the final rule explains why EPA made targeted revisions to the antidegradation requirements and how these revisions are necessary to meet objectives of the CWA. The minimum elem ents included in the proposed rule preamble articulate the fundamental requiremen ts of an antidegradation policy as specified in section 131.12(a). And, as specified in the regulatory language previous to today’s final rule and is now included as part of s ection 131.12(b) in this final rule “The State shall develop methods for implementing the antidegradation policy that are, at a minimum, consistent with the State’s policy and with paragraph (a) of this section .” States and authorized tribes have considera ble discretion as to how they address th e minimum elements in their programs.



### B. **Comments T**  **hat EPA S**  **hould N**  **ot F**  **orce S**  **tates to A**  **dopt N**  **ew P**  **olicies or**  **R egulations**  **a s a**  **R esult of the**  **N ew**  **M inimum**  **Elements**

Some c ommenters expressed that t he onl y requirement should be that a s tate has an antidegradation policy not EPA mandating the minimum elements that must be contained therein. A commenter specifically said that “While EPA may have a role to ensure that state water qual it y standards meet the requirements of the Act and are being implemented, new regulatory requirements are not the appropriate approach to ensuring implementation of state anti

- degradation programs.” One commenter provided an example of a state policy that pre

- dates the CWA, and said that EPA sh ould not be allowed to mandate that the state adopt a new policy or regulations to incorporate new minimum elements without a demonstration that the State's current policy is causing water quality problems as currently written and implemented, or is contra ry to current federal law or regulations

. EPA disagrees. The ‘minimum elements’ listed in the proposal preamble were derived from the already existing requirements for state and tribal antidegradation polici es and included the few additional requirements i ncluded in the proposal. EPA has authority under the CWA to promulgate regulations needed to administer and implement the CWA in order to serve the purposes of the Act. See CWA section 501(a). R egulations may need to change in order to better meet the objectives of the CWA as new environmental challenges arise and new science is developed. EPA’s preamble to the proposed rule and final rule explain that the prior federal antidegradation requirements were not fully successful in

ensur ing that antidegradation is implemented consistent with the CWA. EPA has finalized regulatory revisions that are necessary to ensure that sound water quality management decisions are made nationally. Certain states may have fewer changes to make to their standards to be consistent with today’s final rule. For states and authorized tribes that currently have WQS that are consistent or mostly consistent with today’s rule, then EPA expects that any revisions to those water quality will have minimal burden on the state and minimal impa ct on the state or authorized tribe’s decision making
process. EPA is ready to assist any state or authorized tribe in evaluating their currently applicable antidegradation requirements to determine whether and what revisions are necessary to comply withChapter 3 – Response Essays 7.g.ii – Antideg ME – Opp ID in Preamble

t he new requirements

. EPA understands that any potential revisions may take time. Thus, the preamble to the final rule clearly explains “EPA’s expectation is that, where a new or revised requirement necessitates a change to state or authorized tribal WQS, s uch revisions will occur within the next triennial review that the state or authorized tribe initiates after publication of the rule. ”

A comment er also stated that EPA should work on moving the focus from individual discharges that might cause minimal localized degradation to a broader watershed

- wide focus aimed at controlling all sources to a reasonable level in a manner that allows all of the applicable WQS to be met. EPA agrees in principle that a watershed focus on all sources of pollution can be extrem ely useful in helping to achieve standards. EPA’s final rule codifies the acceptance of a water body

– by

– water body approach where states wish to identify high quality waters on a more holistic basis. Some states have also chosen to adopt a de minim is threshold which allows them to focus on disc harges that have more than a de minim is effect on water quality. However, EPA disagrees that a watershed approach is mutually exclusive of attention to individual discharges. For example, EPA has provided guidan ce on watershed approaches to permitting that still contain a focus on individual discharges: http://water.epa.gov/polwaste/npdes/basics/Watershed -Based- NPDES -P ermitting.cfm

. Whether antidegradation requirements are met by focusing on specific dischargers or at a broader watershed level is at the discretion of the states and authorized tribes and how they wish to write their antidegradation implementation methods . EPA has made it clear that antidegradation requirements apply to the water body itself and not to specific dischargers or discharges.

For additional discussion on Antidegradation Guidance and comments on how EPA should have issued more guidance rather th an revised regulations , please see response essay 7.c.



### C. **Comments T**  **hat EPA S**  **hould C**  **larify W**  **hat the R**  **equirements Are**  **f or “**  **A ll**  **C ost** 

**** **E ffective and**  **R easonable B**  **est M**  **anagement P**  **ractice s for N**  **onpoint S**  **ource C**  **ontrols”**

Some comments pointed out that the list of minimum elements of antidegradation implementation methods in the proposal preamble included : “Requirements for point and nonpoint sources: the state or tribe will ensure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost

- effective and reasonable best management practices for nonpoint source control when allowing a lowering of water quality.” The commenter expressed the view that this created confusion about whether there is a federal requirement to implement nonpoint source (NPS) control best management practices ( BMPs ) . Per the commenter’s suggestion, EPA clarifies here that the requirements regarding controls for NPS pollution included in 40 CFR 1 31.12 do not create an obligation for states or authorized tribes to implement NPS controls if they have not chosen to impose such requirements themselves

. Section 131.12(a) (2) does not require a State to establish BMPs for NPS where such BMP requirements do not exist. EPA interprets section 131.12 (a) (2) as requiring States to adopt an antidegradation policy that includes a provision that will assure that all cost

- ef fective and reasonable BMPs established under state or authorized tribal authority are impl emented for NPS before the state or authorized tribe authorizes degradation of high quality waters by point sources.

See: February 22, 1994 Memo from Tudor Davies, “Interpretation of Federal Antidegradation Regulatory Requirement” ( http://water.epa.gov/scitech/swguidance/standards/upload/2006_12_01_standards_antidegmemo.pdf ), and EPA’s Water Quality Standards Handbook at 4.5 ( http://water.epa.gov/scitech/swguidance/standards/handbook/chapter04.cfm#section5 )Chapter 3 – Response Essays 7.g.ii – Antideg ME – Opp ID in Preamble

For a discussion of what “cost

- effective and reasonable best management practices for nonpoin t source controls” means in the context of waterbody variances, please see response essay 8.g.v.



### D. **Comments r**  **egarding S**  **tates’ and**  **A uthorized**  **T ribes’**  **Responsibility**

Some c omments stated that i f EPA is going to (1) define what the implementation procedures must contain and then (2) approve or disapprove them, there will be little left of states' responsibility. EPA disagrees . The final rule does not require that states and authorized tribes adop t legally binding implementation methods that EPA would approve or disapprove

. In addition, as discussed in section A of this response essay , the description of minimum elements of implementation methods in the preamble to the proposal reflected requirements that already existed for states’ and authorized tribes’ antidegradation policies (plus the elements that were proposed to be included in the final rule), so EPA’s definition of minimum elements did not in fact remove any flexibility from states and auth orized tribes. Under the final rule, states and authorized tribes continue to have extensive responsibility and flexibility as to how they address the required elements of antidegradation. EPA will consider providing a final list of minimum elements to fac ilitate antidegradation implementation in future antidegradation guidance documents based on the final rule requirements.



### E. **Comments r**  **egarding C**  **ompliance with the**  **C lean**  **W ater**  **A ct**  **S ection 316(a)** 
The preamble to the proposed rule included in the list of antidegradation implementation methods minimum elements : “The state or tribe will ensure consistency with Section 316 of the Act in cases that involve potential water quality impairment associated with thermal discharges.” EPA derived this element directly fr om already existing regulatory language at 40 CFR section 131.12(a)(4): “In those cases where potential water quality impairment associated with a thermal discharge is involved, the antidegradation policy and implementing method shall be consistent with section 316 of the Act.” EPA has explained its interpretatio n of the rule in the WQS Handbook at 4

- 2 and in the 1998 Advance Notice of Proposed Rulemaking ( ANPRM ).

Section 316(a) regulations and implementation of those regulations are outside the scope of this rule. A commenter stated that w ith respect to alternative limits on discharges of heat under section 316(a) of the (CWA) , EPA did not propose to change the actual wording of “ the rule. ” EPA agrees that this is true. EPA is not making any changes to the wording of any rules related to section 316(a).

Some comme nter s disagreed that state and tribal implementation methods should be required to ensure consistency with section 316 where there is potential water quality impairment from thermal discharges , and stated that there should be “ no changes. ” The commenter stated that the problem was not with the wording of the rule, but rather a handful of interpretations by EPA Regions suggesting that section 316(a) is “ not an alternate to ordinary water quality

- based limits but a stand

- alone requirement that must be met in addition to complying with limits based on ordinary water quality criteria. ” The commenter stated that these interpretations are at odds with section 316(a), which on its face is an alternative to ordinary water quality

- based limits. Section 316(a) impleme ntation is outside of the scope of this rulemaking. For information about EPA’s interpretation 40 CFR section 131.12(a)(4) , see the WQS Handbook at 4

- 2 and the ANPRM.Chapter 3 – Response Essays 7.g.ii – Antideg ME – Opp ID in Preamble



### F. **Comments T**  **hat EPA S**  **hould N**  **ot R**  **equire Antidegradation**  **Tier 2 R**  **eview s**  **for I**  **mpaired W**  **aters**

Some c ommenters stated that they were concerned “about the requirement in proposed § 131.12(b)(1) that State implementation methods must "ensure" that a state conducts an antidegradation review for a water body on its impaired waters list, if the wat er body exceeds the quality needed to achieve one of the uses specified in CWA § 101(a)(2) .” To the extent the commenter implies that the proposal and final rule require Tier 2 review for all waters on the impaired waters list, EPA disagrees . T he final rul e does not require states and authorized tribes to conduct a Tier 2 review on all waters listed as impaired per CWA 303(d). Rather, the final rule requires that when identifying high quality waters, “ the State shall not exclude a water body from the protec tions described in (a)(2) of this section solely because water qual i ty does not exceed levels necessary to support all of the uses specified in section 101(a)(2) of the Act. ” (emphasis added) This is not substantively different from the intent of the propo sal but is different from the commenter ’s characterization of the proposed rule

. The final rule will not require that a state conduct Tier 2 review on waters listed on the impaired waters list just because they are on the impaired waters list . It would req uire that impairment of a water body cannot be the sole reason for excluding the water body from Tier 2 protection.

Some c ommenters also stated that it is inconsistent with the CWA to consider an impaired water to be high quality water and would be a misal location of state resources to require an anti

- degradat ion review for impaired water

. They did not explain why it is inconsistent with the CWA to provide Tier 2 protection for a water that is also impaired for one or more parameters. EPA disagrees that conducting a Tier 2 review on an impaired water body is incons istent with the CWA and that it is a misallocation of state

resources. State and authorized tribal “antidegradation policies” apply to all waters, including waters that are impaired for on e or more parameters ; at a minimum, Tier 1 of antidegradation applies to all waters of the U.S. I t is possible for a water to be considered ‘high quality’ (for purposes of Tier 2 of antidegradation) and ‘impaired’ (by the 303(d) listing program) at the sam e time. For example, a water might be of high quality with respect to some chemical, physical, and biological parameters but impaired with respect to others. Tier 2 can provide protection for the high water quality that exists in the water body (e.g., assi milative capacity for some parameters), despite having impairments with respect to some parameters. This is fully consistent with the goals of the CWA. CWA section 101(a) includes the objective to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters. ” The potential for a water to be both high quality and impaired is evident in this section of the CWA. This goal can only be met by restoring the Nation’s waters and by maintaining the chemical, physical and biological in tegrity which has been achieved. Waiting to “maintain” water quality when a water body is completely unimpaired on every parameter would likely result in no waters eventually being restored

. Therefore, it is in line with the CWA for States to allocate resources to meeting this objective of the CWA. In addition, states and authorized tribes have flexibility in allocating their resources for antidegradation protection. For example, a state or authorized tribe can incorporate a ‘ de minimis ’ concept into their implementation.

Some c ommenter s stated that the proposed requirement at section 131.12(b)(1) is inconsistent with existing state policies , including those that have withstood legal challenge, and inconsistent with the position EPA has taken to defend such policies (citing Kentucky Waterways Alliance v. EPA , 540 F.3d 466 (6th Cir. 2008) which upheld EPA approval of the provisions of Kentucky's antidegradation policy that exclude impaired waters from anti

- degradation review). EPA acknowledges that the propose d requirement was (and the final rule requirement is) a shift in policy from EPA’s previous position and from some existing approved state policies. After careful consideration, EPA is changing this policy via aChapter 3 – Response Essays 7.g.ii – Antideg ME – Opp ID in Preamble

notice and comment rulemaking. EPA has the a uthority to alter the regulations in the interest of administering the Act . EPA recognized the need to revise its regulations to meet the objectives in light of new challenges, information
, and science.

Some c ommenters expressed concern that the proposed r equirement at section 131.12(b)(1) would be inconsistent with state policies to encourage infilling and protect green space by placing additional barriers on discharges near impaired waters. EPA disagrees. The final requirement does not bar states from allowing discharges near impaired waters , but rather specifies that the water cannot be wholesale excluded from tier 2 protection solely because it is not meeting all of the uses specified in CWA section 101(a)(2) . EPA recognizes that multiple considerations, such as cross

- media impacts, can be important in making decisions about how and how much to protect high water quality. The final rule allows for flexibility specifically to account for these kinds of complex decisions.



### G. **Comments T**  **hat the M**  **inimum E**  **lements S**  **hould B**  **e in R**  **ule and I**  **nclude M**  **ore on Tier 1** 

Some c ommenters questioned why EPA was not including the minimum elements for antidegradation implementation methods in rule and should add some additional detail, particularly existing use protection

. T he elements derive from the elements of the regulation, which states and authorized tribes are already required to address in their antidegradation policies. Including such elements in regulation would be redundant of the regulation. EPA will consider prov iding a final list of minimum elements to facilitate antidegradation implementation in future antidegradation guidance documents based on the final rule requirements and whether or not additional detail, in the form of guidance, is necessary to address Tier 2 as well as Tier 1 and Tier 3. Because these minimum elements are derived from the regulatory requirements, if a state’s antidegradation implementation method does not address one of the elements, it would not be consistent with section 131.12 and EPA w ould have the authority to disapprove a legally binding implementation method or make an Administrator’s determination that new or revised WQS are necessary.

EPA received comments regarding Tier 1, however, the proposal and final rule focus on enhancing the protection for Tier 2 waters. Thus, comments related to Tier 1 are outside the scope of this rulemaking. Not addressing Tier 1 in no way reflects an intention that Tier 1 is not important or is not a current requirement of the regulations. EPA agrees t hat additional guidance on implementing Tier 1 e xisting uses protection would be useful. As mentioned earlier, EPA will consider developing additional guidance on Tier 1 once the final regulations are published.



### H. Comments **r egarding**  **W ho**  **C onducts the**  **A naly**  **sis of A**  **lternatives and the T**  **erm “ P**  **racticable”**
For a response to comments regarding whether States really have the experience to conduct an analysis of alternatives consistent with section 131.12(a), please see response essay 7.e.ii, section D.

For a response to comments regarding the definition of “practicable” and the scope of the analysis of alternatives, please see response essay 7.e.ii, sections K and O.

A commenter suggested that EPA require that the state evaluate only “reasonable and cost

- effec tive measures that would reduce or eliminate the potential degradation” rather than requiring a complex analysis of alternatives. For a discussion on the types and range of alternatives that EPA expects to beChapter 3 – Response Essays 7.g.ii – Antideg ME – Opp ID in Preamble

considered, please see response essay 7.e.ii, in particular sections K and O. For a discussion of whether this analysis of alternatives is complex and the burden it may impose, please see response essay 7.e.ii, section F.Chapter 3 – Response Essays 7.g. iii – Antideg ME – Sugg R evisions



## Essay 7. **g. iii**  **– Antideg**  **radation Minimum Elements**  **: Suggested Changes/Revisions to Minimum Elements** 

**A. Comments on**  **S tate**  **Specific C ases as**  **E xamples of**  **I neffective EPA**  **R egulation** 
The U.S. Environmental Protection Agency ( EPA ) considered the comments describing and characterizing federal regulatory requirements, EPA guidance, and court cases related to antideg radation. EPA also considered comments citing a specific state as an example of EPA ’ s current antidegradation regulatory provisions having not b e en effective or successfully implementing the Clean Water Act ( CWA ) antidegradation policy. Today ’ s rule is a national rule. Comments on the quality of specific state CWA programs (e.g.
, water quality standards [ WQS ] , CWA section 402 permitting, CWA section 303(d) listing) are outside the scope of this rulemaking. EPA will work with states and stakeholders on specific state issues through its regional offices outside of this national rule context. As to the 2012 Florida Wildlife Federation rulemaking petition discussed in the comments, EPA is considering the petition and will respond to that petition directly. As discussed above, the petition (which specifically relates to Florida ’s WQS ) was outside the scope of this national rule. EPA did not propose promulgating WQS for specific states through this rulemaking and is not doing so in the final rule.

EPA agrees with commenters ’ observation that some state and tribal implementation methods that have not been adopted as legally binding have attempted to un dermine or modify the adopted and EPA approved antidegradation policy. While EPA ’ s final rule does not require states and tribes to adopt legally binding implementation methods, it does require public participation and accountability on any changes to impl ementation methods. In addition, implementation methods that are not approved by EPA are not applicable WQS for CWA purposes. Therefore, to the extent that any antidegradation implementation methods undermine the applicable CWA antidegradation policy, EPA would potentially have a basis to object to authorizations for regulated activities (e.g., a N ational Pollutant Discharge Elimination System (N PDES ) permit) that are not consistent with the applicable antidegradation WQS to or make an Administrator ’ s Determination

. Any administrator ’ s determination would be considered on a

case

- by

- case basis.

Comments regarding whether a specific state ’ s antidegradation WQS need to be clustered in one section of the state ’ s WQS are outside the scope of this rulemaking, as EPA did not propose or finalize a requirement that states must group their antidegradation requirements in one section.



### B. **Comments on Specific S**  **tate S**  **ituations R**  **elated to 303(d) L**  **isting and A**  **ntidegradation**

Comments related to specific CWA section 303( d) listing state practices and antidegradation , and related to establishing baseline assimilative capacity for Tier 2 waters are beyond the scope of this rulemaking. T his rulemaking is focused solely on the identification of high quality waters and analyzi ng alternatives whenever conducting a Tier 2 review and on the public involvement needed on these decisions and when developing and/or revising antidegradation implementation methods. EPA ’ s rule did not propose or solicit comment on regulations regarding l isting impaired waters based on antidegradation

. In addition, c omments regarding EPA ’ s actions on state and tribal 303(d) lists are outside the scope of this rulemaking

. EPA will consider developing guidance on additional topics related to antidegradation that were not addressed in this rulemaking in a subsequent effort after the final ruleChapter 3 – Response Essays 7.g. iii – Antideg ME – Sugg R evisions

is published and will be available to work with specific states through its regional offices outside the context of this national rulemaking

.



### C. **Comments r**  **egarding A**  **nti degradation and**  **P oint**  **S ources and**  **N onpoint**  **S ources** 
EPA agrees with a comment stating that because the antidegradation policy regulates and protects against overall waterbody ambient aquatic resource degradation, not merely individual sources of degradation , antidegradation WQS are not based upon the number of discharges nor whether the discharge is point source or nonpoint sources (NPS) . EPA agrees that antidegradation requirements relate to whether the ambient water quality of water bodies are degraded (lo wered) by any and all of the pollutant loads into the water bodies, regardless of whether the pollution load is a point source or NPS , and regardless of whether the pollution sources are permitted or not permitted. Antidegradation requirements apply to all water bodies. However, some states have chosen to prioritize when they conduct Tier 2 reviews by establishing de minimis exceptions and conducting Tier 2 reviews only when the lowering of water quality exceeds “ de minimis. ” These de minimis exceptions do not mean that antidegradation requirements to not apply to those waters.



### D. **Comments T**  **hat A**  **lternatives A**  **nalyses A**  **re N**  **ot N**  **ecessary**

A commenter stated that “ no revisions should be made to section 131.6(d) and consequently alternatives analyses are not necessary. ” EPA disagrees that a requirement for an analysis of alternatives is unnecessary

. EPA is not revising section 131.6(d) , which specifie s that states and authorized tribes must submit their antidegradation policies consistent with section 131.12. However, the requirement to conduct an analysis of alternatives does not originate in section 131.6(d). Rather, the requirement to conduct an analysis of alternatives stems from section 131.12(a)(2) , which prior to this rule specified, among other requirements, that in order to allow a lowering of high water quality, a state or tribe must make the finding that the lowering is “ necessary to accommodate important economic or social development in the area in which the waters are located. ” EPA interprets the word “necessary” to mean that alternatives to the lowering of water quality have been considered. The final rule does not revise section 131.6(d), but it does add detail to the requirements for states ’ and t ribes ’ antidegradation policies at 131.12(a)(2), including the analysis of alternatives , which is now a required part of Tier 2 review. For additional information on EPA ’ s decision to include the analysis of alternatives requirement in the regulation, plea se see the Preamble to the final rule and Response Essay s 7.e.i, 7.e.ii, 7.e.iii, and 7.e.iv

.



### E. **Comments T**  **hat EPA S**  **hould I**  **nclude M**  **ore S**  **pecifics on V**  **arious T**  **opics in the L**  **ist of Minimum E**  **lements , or**  **S hould**  **R equire**  **M ore**  **S pecifics in**  **S tate W**  **ater Q**  **uality S**  **tandards**

EPA received comments requesting that EPA include more items, or more specifics about existing items, in the list of implementation methods minimum elements that it had provided in the preamble to the proposal. Commenters offered many specific rea sons for suggesting these items. Some commenters suggesting additional items stressed the need to provide states and authorized tribes with additional information or guidance on how to implement antidegradation better . The suggest ions included:

– Include mor e specific language about certain minimum elements EPA had listed:

o Specific language on Tier 2 socioeconomic reviewChapter 3 – Response Essays 7.g. iii – Antideg ME – Sugg R evisions

o Specific language on how assurances that requirements for all new and existing point sources and cost

- effective and reasonable best management practices (BMP)s) have been addressed in Tier 2 review

o Specific language on protection of existing uses

o Specific language on identification and protection of Outstanding National Resource Waters ( ONRWs )

– Include minimum elements for:

o Establishment of bas eline antidegradation assimilative capacity of Tier 2 and Tier 2.5
waters

o Establishment on a limit on the cumulative degradation of the baseline assimilative capacity of Tier 2 and Tier 2.5 waters that could be allowed without Tier 2 review (because it is considered ‘ de minimis ’)

o Establishment of an antidegradation impaired waters review methodology consistent with CWA section 303(d) and Title 40 of the Code of Federal Regulations ( CFR ) section 130.7

EPA disagrees that these suggested additions should be included as minimum element s

. EPA derived t he list of minimum elements in the proposal preamble from the fundamental elements required by the regulation (including those proposed to be added to the regulation.) The commenters ’ suggestions go beyond the requirements of the WQS regula tion at 40 CFR section 131.12 and the requirements that were proposed to be added (and finalized) , and therefore EPA found it is not reasonable to list these additional elements as “ minimum ” elements of antidegradation implementation methods. EPA recognize s that implementation methods which include these elements are likely to be stronger and more protective of high quality waters. Therefore, EPA encourages states and authorized tribes to consider including these items in their implementation methods, in ad dition to the minimum elements. States and authorized tribes may include these elements i n their implementation methods at their discretion. EPA will consider providing additional discussion or examples on how a state or authorized tribe can fulfill the requirements of the final rule ’s section 131.12(b), which may include some of the suggestions provided by commenters.

Commenters stated that EPA must clarify 40 CFR section 131.12 by requiring state WQS list the state pollution controls that must be con sid ered, such as the following:
a. Implement new source performance standards (NSPS) on all new and existing point source discharges in the watershed of the waterbody.
b. Require more stringent effluent limitations, including lowering effluent limitation leve ls of all point sources discharges in the watershed of the waterbody to actual current loadings of the discharge(s).
c. Order the point or method of discharges changed.
d. Limit the duration or volume of discharges.
e. Require all new and existing stormwat er management systems discharging within the watershed of the water body achieve at least 95% reduction of the average annual load of pollutant(s) at issue required by Fla.Admin.Code R. 62

- 25.025(9).
f. Regulate the water quality affects of water quantity uses which degrade the baseline assimilative capacity for the subject assimilative capacity water quality parameter.Chapter 3 – Response Essays 7.g. iii – Antideg ME – Sugg R evisions

g. Require NPDES municipal s eparate s torm s ewer s ystem ( MS4 ) permits for all stormwater discharges that are a significant contributor withi n the watershed of the pollutant at issue in the waterbody.
h. Implement stricter effluent limitations on point source stormwater discharges in the watershed of the waterbody, including requiring clear, specific and measurable performance standards in NPDE S MS4 permits that are enforceable and prohibit violation of WQS.
I. Implement stormwater control measures within the watershed of the subject waterbody require redeveloped sites to retrofit existing stormwater systems.
j. Implement stormwater control measures in MS4 permits which require the identification of stormwater pollution hotspots within the watershed of the subject water body, and the use pollution prevention actions in the identified hotspots.
k. Require local governments in the watershed of the waterbody with stormwater management systems to exercise land use control measures to reduce the pollutant load at issue, including runoff volume reduction, peak flow reduction, and increasing runoff treatment levels.
l. Regulation and control activities w hich have adverse cumulative and secondary impacts on surface water quality, including requiring triennial septic tank inspection and necessary retrofitting within the watershed and springshed of the waterbody.
m. Cost effective and reasonable tightening u p of BMP s on NPS within the watershed of the waterbody for the pollutant at issue.

EPA disagrees that these suggested items should be required state pollution controls that must be considered, EPA assumes in the context of Tier 2 analysis of alternatives

. The commenters suggest a level of specificity to the federal requirement for analysis of alternatives that EPA views as overly prescriptive in light of the cooperative federalism inherent in the CWA. Furthermore, the alternatives that are practicable to consider are situation

- specific, depending on the type of discharge and the type of water body. Not all of the items on the list would be relevant to each situation that states and authorized tribes encounter, and therefore a requirement to consider each and every item on the list would be inappropriate. Finally, many of the items on the list go beyond the authority of the WQS regulation at Part 131, for example some deal specifically with NPDES requirements, or with technology

based effluent limitations, or with land use decisions. Therefore, the regulation at Part 131 is not the appropriate place to consider such requirements.



### F. **Comments T**  **hat EPA S**  **hould C**  **arve out E**  **xceptions to A**  **ntidegradation R**  **eview**
For a response to comments regarding exceptions to Tier 2 review despite some increase in pollutant loadings so that States can implement their water quality programs in an efficient and effective manner
, please see the preamble to the final rule at section D and response essay 7.i

.

A commenter argued that EPA sh ould specifically allow for exceptions to Tier 2 review for certain kinds of projects with evident social and/or economic benefit. EPA disagrees. The CWA does not provide for an explicit cost/benefit analysis when implementing WQS

. Courts have provided a basis for states and authorized tribes to efficiently use resources when there is a de minimis or trivial impact on waterChapter 3 – Response Essays 7.g. iii – Antideg ME – Sugg R evisions

quality itself

. The point of Tier 2 review is to provide a mechanism for states and authorized tribes to make i nformed, publically transparent decisions about allowing lower water quality, based partially on social or economic considerations. Bypassing Tier 2 review would remove the opportunity for full public consideration of the socioeconomic importance of the proposed activity and therefore, even consideration of de minimis exceptions should be made in consultation with the public

. Finally, although the comment referred to “ exceptions when antidegradation review is not required, ” EPA notes that certain antidegradation protections (e.g., Tier 1) always apply, even if a state has chosen to provide de minimis exceptions for Tier 2 review.



### G. Comments **T hat EPA**  **S hould**  **N ot**  **P rovide**  **M inimum**  **E lements and**  **D escribe**  **T heir**  **P urpose as**  **“F acilitation**  **” in**  **P reamble**  **L anguage**  For a response to comments regarding the appropriateness of providing minimum elements for implementation methods in preamble, please see response essay 7.g.ii, section s A and B.



### H. **Comments T**  **hat EPA S**  **hould B**  **e C**  **lear W**  **hat I**  **s R**  **equired in I**  **mplementation M**  **ethods**

A comment stated that while the minimum elements provided in the preamble to the p roposed r ule discusses five issues (and four sub

- issues) that implementation methods must address , the actual regulatory language proposed only includes clear instruction on tw o issues . The comment continued that i f EPA wants to make clear what is required in implementation methods, those requirements should be included in its regulations

. EPA disagrees that additional regulatory language is necessary to track with those minimum elements. EPA ’ s final rule provides additional regulatory language regarding some aspects of Tier 2 antidegradation review that EPA chose to target for rulemaking at this time in order to strengthen Tier 2 protection

. 40 CFR 131.12(b) requires that implem entation methods be, at a minimum, “ consistent with the State ’ s policy and with ” section 131.12(a). Although EPA did not provide specific revised regulatory language (e.g.
, Tier 1) on the other items listed as minimum elements, each of these is included as a requirement of the antidegradation policy at section 131.12(a) and thus must be addressed by state and authorized tribe implementation methods. S tates and authorized tri bes continue
to have considerable discretion in how they address the elements of their policy and section 131.12(a) as long as they do n ot undermine either.



### I. **Comments T**  **hat I**  **mplementation M**  **ethods with M**  **inimum E**  **lements A**  **re W**  **ater Q**  **uality S**  **tandards**

Commenter s stated that since many of the minimum elements listed in the preamble to the proposal address when and how antidegradation is applied, implementation methods with these elements are a WQS. EPA partially agrees and partially disagrees. While EPA ’ s view is that antidegradation implementation is likely to be more transparent and more accountable if a state or authorized tribe adopts its implementation methods as legally binding, adopting the methods is not required. New or revised antidegradation i m plementation methods that are not legally binding are not considered new or revised WQS. See EPA ’ s frequently asked questions ( FAQs ) on “ What is a New or Revised WQS under CWA 303(c)(3) ” http://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm

. Please see response essay 7.f.i for further discussion on adoption of Antidegradation Implementation Methods.Chapter 3 – Response Essays 7.g. iii – Antideg ME – Sugg R evisions

A commenter suggested that the proposed regulatory changes regarding i dentification of waters for Tier 2 protection and regarding analysis of alternatives should be included as part of states ’ and authorized tribes ’ antidegradation policies. EPA agrees that the additional requirements must be part of the antidegradation poli cy and thus be part of the WQS themselves. The final rule includes the requirements addressing identification of high quality waters and conducting an analysis of alternatives and selection of an alternative as part of section 131.12(a)
, which provides spe cific requirements of antidegradation policies rather than just part of the antidegradation implementation methods . A ntidegradation policies are new or revised WQS that must be reviewed and approved or disapproved by EPA. EPA ’ s final rule revised section 1 31.12(b) from the proposal to simply say that implementation methods must be consistent with the state ’ s or authorized tribe ’ s antidegradation policy and section 131.12(a). As a result, it is unnecessary for EPA to require that all implementation methods b e legally binding. However, where they are binding, section 131.5(a)(3) makes clear that EPA has the authority to review and approve or disapprove the implementation methods.

C ommenter s also stated that proposal ’ s focus on one component of Tier 2 review (analysis of alternatives) was misleading, and that the discussion of Tier 2 reviews needs to be expanded to address socio

- economic review, requirements for point sources, and BMP s for NPS . EPA agrees that Tier 2

r eviews consist of several parts as described in 131.12(a)(2), not only the alternatives analysis. The minimum elements in the proposal preamble and the regulation at 131.12(a)(2) makes this clear. However, the fact that the final rule only adds more detail to the alternatives analysis component does not diminish the importance of the other aspects. The other aspects are still required, as they always have been. The final rule makes clear that states ’ and authorized tribes ’ findings that a lowering is

necess ary depends on both an analysis of alternatives and an analysis related to economic or social development. The commenter also stressed the importance of implementation methods addressing not only Tier 2 reviews, but existing uses and ONRW protection. The p roposal preamble did include points about existing uses and ONRW protection among the minimum elements.

EPA also agrees that implementation methods must also address protection for existing uses , cost effective and reasonable BMPs and ONRWs, not just Tier 2 protection. The proposal preamble listed those among the ‘ minimum elements ’ of implementation methods. As discussed in response essay 7.g.ii, section G, Because these minimum elements are derived from the regulatory requirements, if a state ’s antidegrada tion implementation method does not address one of the elements, it would not be consistent with section 131.12 and EPA would have the authority to disapprove a legally binding implementation method or make an Administrator ’ s determination that new or revi sed WQS are
necessary.



### J. **Comments r**  **egarding A**  **ntidegradation as**  **a B**  **asis for 30**  **3(d) L**  **isting of I**  **mpaired W**  **aters**

EPA received comments on both sides of the question of whether antidegradation is a basis for CWA 303(d) listing of impaired waters. EPA explicitly states in the preamble to the final rule that antidegradation requirements apply to a water body regardless of source and thus it is inaccurate to consider antidegradation requirements to apply only to point sources receiving NPDES permits. Howe ver, comments related to CWA 303(d) listing and antidegradation are beyond the scope of this rulemaking which is focused solely on the identification of high quality waters and analyzing alternatives whenever conducting a Tier 2 review and on the public involvement needed on these decisions and when developing and/or revising antidegradation implementation methods. EPA ’ s rule did not propose or solicit comment on regulations regarding listing impaired waters based on antidegradation. EPA willChapter 3 – Response Essays 7.g. iii – Antideg ME – Sugg R evisions

consider devel oping guidance on additional topics related to antidegradation that were not addressed in this rulemaking in a subsequent effort after the final rule is published. E PA ’ s 2014 Integrated Reporting Guidance contains some discussion on the topic of 303( d) listing and antidegradation: http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/2014

- memo.cfm

.



### K. **Comments r**  **egarding the C**  **ircumstances in W**  **hich A**  **ntidegradation is C**  **onsidered i n 303(c)**  **R eviews** 

EPA received comments that EPA should “ explicitly state in its regulations the limited circumstances that antidegradation is considered in its 303(c) reviews .” When reviewing new or revised WQS , EPA evaluates whether it meets the requirements of the applicable regulatory provisions. In determining the applicable regulatory provisions, EPA must first determine whether the new or revised WQS is a new or revised designated use, new or revised water quality criteria, new or revised ant idegradation requirement, or a new or revised WQS variance. EPA may evaluate a state or authorized tribe ’ s existing WQS s to inform that decision. However, EPA ’ s authority to review and approve or disapprove a WQS is limited to those provisions that meet ar e new or revised and legally binding, as explained in EPA ’s FAQs

“ What is a New or Revised WQS under CWA 303(c)(3). ” http://water.epa.gov/scitech/swguidance/standards/cwa303faq .cfm

. EPA agrees with the commenter that when reviewing a new or revised designated use or water quality criteria, EPA does not re

- review a State ’ s antidegradation policy and implementation methods once EPA approved those antidegradation provisions. EPA no tes, however, that the EPA Administrator has the authority to make a determination that new or revised WQS are necessary . This is the case even when a state or authorized tribe has a long

- standing regulation in place. EPA disagrees with the commenter that section 131.5(a)(3) needs to be revised to make this clear

. The provisions at section 131.5 are intended to provide EPA ’ s authority under CWA 303(c)(4)(A) and 303(c)(4)(B). Because the Administrator has the authority to make a determination that new or rev ised WQS are necessary at any time, even when there are no new or revised WQS, it would be inappropriate to revise this section. EPA ’ s FAQ mentioned in this paragraph makes sufficiently clear the limitations of EPA ’ s authority when reviewing WQS under CWA 303(c)(4)(A).



### L. **Comments r**  **egarding the S**  **cope of I**  **mplementation M**  **ethods**

Some commenters assumed that EPA ’s rule targeted the application of antidegradation policies during

“ permit reviews. ” Commenters stated that i n the absence of guidance on how antidegra dation policies are applied outside of permitting, neither EPA, the public, nor States will have understanding on how to review, approve, develop, or comment upon other implementation methods. Commenters thus requested that EPA clarify in the rules the scope of implementation methods that are envisioned.

EPA has explicitly stated in section B of the preamble to the final rule that WQS, including antidegradation requirements
, apply to a water body regardless of whether the source of pollution is point or NPS and regardless of whether a state or authorized tribe has chosen to control NPS activities

. However, EPA agrees with commenters that further guidance is needed to inform the public, co

regulators, and regulated entities about how antidegradation should apply in a variety of contexts. EPA is not providing this clarification in this rulemaking, but the Agency intends to provide additional guidance on antidegradation once the final rule is published and will consider this issue along with a wide variety of other issues when planning its guidance

.Chapter 3 – Response Essays 7.g. iii – Antideg ME – Sugg R evisions



### M. **Comment T**  **hat EPA H**  **as No B**  **asis to R**  **equire S**  **tates to I**  **mplement A**  **ntidegradation in a P**  **articular W**  **ay**
For a response to comments that EPA has no basis to require states to implement antidegradation in a particular way and that the only constraint on states should be that the states may not act in a manner inconsistent with the Act, please see response essay 7.g.ii, sections A and B and essay 7.m

.



### N. **Comments T**  **hat T**  **otal Maximum Daily Loads and W**  **asteload Allocations A**  **re S**  **ubject to**  **A ntidegradation**  **R eview** 
EPA disagrees with comments saying “ EPA must clarify that

... water

- quality based effluent limitations (WQBELs) must be based upon TMDLs and WLAs subject to antidegradation review and the antidegradation policy of the CWA. ” A s EPA articulated in the proposal preamble, “ Antidegradation reviews are applicable to revisions to effluent limitations based on a TMDL, wasteload allocation, or water quality standard, but they are not required for revisions to a TMDL, wasteload allocati on, or water quality standard. ” (citing Native Village of Point Hope v. U.S. Envtl. Prot. Agency , No. 3:11

- cv

- 00200

- TMB, slip op. at 24

- 25 (D. Alaska Sept. 14, 2012). ) Total maximum daily loads ( TMDLs ) and wasteload allocations ( WLAs ) themselves are not su bject to antidegradation review or antidegradation policies because they do not directly a ffect water quality. In contrast, permits, licenses, or other authorizations that implement TMDLs and WLAs and that allow effects to water quality are generally subje ct to antidegradation review.Chapter 3 – Response Essays 7.g.iv – Antideg ME – State AIMs



## Essay **7.g .iv**  **– Antideg**  **radation Minimum Elements**  **: Comments on Acceptability of Existing State**  **Antidegradation Implementation Measures** 

No comments are assigned to this issue category, and thus no response is necessary.Chapter 3 – Response Essays 7.h – Antideg – EPA AIMs



## Essay **7.h – Antideg**  **radation: Effect on States for Which EPA Has Promulgated**  **Antidegradation Implementation Measures**

No comments are assigned to this issue category, and thus no response is necessary.Chapter 3 – Response Essays 7.i – Antideg – De m inimis



## Essay 7. **i – Antideg**  **radation: De Minimis** 

**A. EPA Should Not Restrict De Minimis** 

The U.S. Environmental Protection Agency ( EPA ) received many comments regarding de minimis exemptions to a Tier 2 review

.

EPA is not making any regulatory revisions addressing de minimis exemptions because these comments are beyond the scope of this rulemaking. EPA did not propose any regulatory revisions or solicit comment on de minimis exemptions. P lease see the preamble to the final rule which p rovides a discussion of EPA’s current stance on de minimis exemptions to Tier 2 reviews based on recent case law.



### B **. EPA Should Require States**  **and Authorized Tribes**  **to Establish Baseline**  **Assimilative Capacity in**  **Legally Binding Methods**
Commenters requested that EPA amend Title 40 of the Code of Federal Regulations ( CFR ) section 131.12
to require states and authorized tribes that adopt antidegradation implementation methods by rule to also establish a baseline antidegradation assimilative capacity of Tier 2 and Tier 2.5 waters for recreational and aquatic life uses . The commenter also requested that EPA amend s ection 131.12 to require these states and authorized tribes to establish a cap on the cumulative degradation of the baseline assimilative capacity

. Comments requesting EPA require baseline assimilative capacity and cumulative caps are outside the scope of this rulemaking . EPA did not propose n or solicit comment s on this issue . T he preamble to the final rule provides a discussion of EPA’s current stance on de minimis exemptions to Tier 2 reviews based on recent case law.Chapter 3 – Response Essays 7.j – Antideg – Tier 3/ONRWs



## Essay 7. **j – Antideg**  **radation: Tier 3**  **/ONRWs**

A comment suggested that the U.S. Environmental Protection Agency ( EPA ) should revise the water quality standards ( WQS ) regulations to encourage more frequent use of Tier 3 classification for outstanding na tional resource waters (ONRW s)

. While EPA agrees that states could better utilize Tier 3 antidegradation protection, these comments are beyond the scope of this rul emaki ng , which is focused

on targeted revisions to the antidegradation Tier 2 requirements . EPA did not propose or solicit
comment on regulatory provisions for Tier 3 ; therefore, EPA is not making any revisions in the final rule to the Tier 3 provisions . The pr eamble generally discusses ways that states and authorized tribes can facilitate public involvement, such as a petition process, which could also be used for Tier 3 protection decisions. EPA will consider addressing Tier 3 classifications , including consid ering ways to encourage more frequent use of them, when developing subsequent guidance on antidegradation following this final rule.Chapter 3 – Response Essays 7.k – Antideg – GLI Provisions



## Essay **7.k – Antideg**  **radation: Linkages with G reat Lakes Initiative**  **Provisions**

**A. General**

The U.S. Environmental Protection Agency ( EPA ) agrees with a commenter stating that the requirements for antidegr adation for the Great Lakes ( Title 40 of the Code of Federal Regulations ( CFR ) Part 132, Appendix E) are not applicable to dischargers outside of the Great Lakes.



### B. Requirements **Go beyond the**  **Scope of**  **Alternatives within the Control**  **of the Discharger** 

A commenter stated that EPA’s proposed requiremen ts for analysis of alternatives in Tier 2 review would go “ beyond the scope of alternatives within the control of the discharger. ” EPA disagrees with the comment. T he final rule contains a similar requirement to that proposed: “Before allowing any lowering of high water quality, pursuant to (a)(2) of this section, the State shall find, after an analysis of alternatives, that such a lowering is necessary

... . The analysis of alternatives shall evaluate a range of practicable alternatives that would prevent or lessen the degradation associated with the proposed activity...” The final rule text requires evaluation of “a range of practicable alternatives” (emphasis added). If a discharger is preparing an analysis of alternatives for a state’s or authorized tribe’s consideration as part of a Tier 2 review, the discharger would analyze alternatives that are practicable ( practicable i s defined at 40 CFR 131.3(n) as “technologically possible, able to be put into practice, and economically viable” )

. States and authorized tribes remain ultimately responsible for making findings to allow degradation and for basing their decisions on adequate analyses. If the state or authorized tribe deems an initial analysis of alternatives insufficient to support a finding that a lowering of high water quality is “necessary,” it can request additional analyses of alternatives from the permit applicant or other entities. There may be other practicable alternatives to consider aside from what the discharger itself considered. A state or auth orized tribe can also obtain information on common practicable alternatives appropriate for a proposed activity from additional existing resources. 1



### C. EPA **Should Promulgate the G**  **reat L**  **akes Initiative**  **Requirements Nationally**
A commenter requested that EPA consider promulgating the requi rements in 40 CFR part 132 and

“ Water Quality Guid ance for the Great Lakes System” (the Great Lakes Initiative [ GLI] ) in 131.12 to provide consistent antidegradation decisions and implementation methods nationwide. Although E PA considered the GLI when developing revisions to the nationally applicable rule, EPA consciously chose
not to promulgate the requirements of the GLI nationally. The GLI rule w as developed specific ally to address issues in the Great Lakes, and as such, had m ore specificity in its requirements. While EPA agrees that some degree of national consistency among states’ and authorized tribes’ antidegrad ation implementation is necessary in order to be consistent with the Clean Water Act ( CWA ) , the water quality standards ( WQS ) regulations at 131 are intended to be broadly applicable across the nation to allow states and authorized tribes to determine the best way to protect waters in their jurisdiction consistent

1 E.g., EPA’s Municipal Technologies website, which presents technology fact sheets to assist in the evaluation of different technologies for wastewater ( http://water.epa.gov/scitech/waste tech/mtb_index.cfm )Chapter 3 – Response Essays 7.k – Antideg – GLI Provisions

with the CWA and Part 131. A s such , the final ru le does not contain as detailed requirements as in the GLI . The antidegradation requirements of the final rule are different from but are not inconsistent with the more detailed requirements in the GLI. States and authorized tribes with waters covered unde r the GLI continue to be subject to that rule , as well as to today’s final rule consistent with section 131.6

. For example, when conducting a Tier 2 analysis for a water body covered by the GLI, the analysis of alternatives would need to consider a range o f practicable alternatives that would prevent or lessen the degradation associated with the proposed activity (per today’s rule), the antidegradation demonstration would need to specifically include pollution prevention alternatives analysis and alternativ e or enhanced treatment analysis (per the GLI), and when the analysis of alternatives identifies one or more practicable alternatives, the State shall only find that a lowering is necessary if one such alternative is selected for implementation (per today’ s rule).Chapter 3 – Response Essays 7.l – Antideg – Other General



## Essay **7.l – Antideg**  **radation: General Comments** 

**A. General Overall Comments** 
The U.S. Environmental Protection Agency ( EPA ) considered commenters ’ recognition of the importance of antidegradation implementation, and shares commenters ’ concerns that some states and authorized tri bes have not implemented antidegradation adequately in the past, as explained in the advance notice of proposed rulemaking ( ANPRM ) and preamble to the proposal

.

Comments suggested that EPA add a purpose statemen t to explain the goal of 131.12, such as “ The purpose of the antidegradation provisions is to ensure that the assimilative capacity of the nation ’s waters is allocated in a thoughtful, transparent manner, with decisions supported by a sound technical

recor d. ” EPA agrees in a broad sense regarding the purpose of antidegradation. There are also many other ways to articulate the purpose of 131.12. EPA ’ s view is that the preamble to the final rule articulates the purpose to the extent necessary, particularly co nsidering the existence of other EPA documents describing antidegradation in a broad sense (e.g., Water Quality Standards [ WQS ] Handbook, ANPRM).

Comments encouraged EPA to discuss climate change impacts in preamble discussion on antidegradation implementation, because climatic factors make assimilative capacity of high quality waters an even more important state resource to protect. EPA agrees with these comment s and has included language about climate change in the preamble.

Comments disagreed that EPA ’s statement that the nation ’ s waters face increasing stress from anthropogenic influences serves as a basis to revise the antidegradation portion of the WQS regulation. Some commenters stated that anthropogenic impacts on water quality are not necessarily gr eater now than in the past, and stated that water quality has improved since the enactment of the Clean Water Act ( CWA ) because of the implementation of regulatio ns such as antidegradation. They stated that the fact that discharges do exist and that new in dustries and sources will occur in the future is not evidence of a failed or inadequate antidegradation regulation. EPA disagrees. Commenters provided no evidence for their assertion that waters are not facing increasing anthropogenic impacts. The comments provided no evidence to refute the fact that some waters actually have degraded over time. EPA agrees that water quality has improved in many cases due to the CWA and implementing regulations; however, water quality problems remain, and some are getting w orse. In the preamble to the proposal, EPA said that the number of waters identified as impaired continues to grow. Data on waters identified as impaired on a state

- by

state basis via the 303(d) lists are publicly available, and can be searched to identify current reports and reports from previous reporting cycles. Please visit http://www.epa.gov/waters/ir/index.html . S cientific literature explores the increasing stresses on water quality as well. For example, the USGS Circular 1350 reported on a comprehensive national analysis of nutrients in streams and groundwater from 1992 through 2004 http://water.usgs.gov/nawqa/nutrients/pu bs/circ1350/ ). The report states that “ [d]espite major Federal, State, and local efforts to control point and non

- point sources and transport of nutrients, concentrations of nutrients have remained the same or increased in many streams and aquifers across the Nation since the early 1990s. ”Chapter 3 – Response Essays 7.l – Antideg – Other General

Comments also disagreed that EPA ’ s statement that the number of waters identified as impaired continues to grow serves as a basis to revise the antidegradation portion of the WQS regulation. They said that the growing num bers of waters listed as impaired is most likely a reflection of increased and more widespread surface water monitoring by the states, and increasingly stringent WQS and section 303(d) listing protocols, not a failure of state antidegradation policies. EPA ’ s preamble statement did not attribute the increasing number of impaired waters solely to deficient antidegradation implementation. EPA does not disagree that the increasing number of waters listed as impaired has many causes, including t he causes cited ( e.g., monitoring has improved, assessment and modeling tools have improved, WQS have become more stringent.) EPA ’ s preamble statement did not attribute the increasing number of impaired waters solely to deficient antidegradation implementation. EPA appreci ates state and authorized tribal efforts to improve monitoring, assessment, and modeling, and to adopt more stringent WQS. All of these will contribute to better protection of water quality. However, the increased stress on water bodies from pollution is a factor in the increased numbers of waters on the impaired waters lists. Therefore, EPA found it is reasonable for EPA to use the increasing number of impaired waters as a basis for strengthening the Tier 2 regulations. EPA ’ s final rule represents an effor t to strengthen the WQS regulations to facilitate efforts to protect high quality waters. For more discussion , see response essay 7.b.

Some commenters were concerned with the use of the term “ policy ” within the regulation because it could be misinterpreted and requested that EPA stop using that term in rule. EPA recognizes that the terminology can be confusing, for example, EPA ’ s national regulation describes “ policy ” as legally binding, while some st ates ’ “ antidegradation policy ” is non

- binding implementation that supplements the state ’ s antidegradation regulatory requirements. Today ’ s preamble clarifies what EPA means by

“ antidegradation policy ” and “ antidegradation implementation methods. ”

EPA recog nizes that some commenters appreciate EPA ’ s effort to improve antidegradation implementation, but think that EPA ’ s proposal was not stringent or specific enough to be useful, or that it would have little effect. The final rule provides a balance between adding more specificity to a few of the specific antidegradation requirements while allowing for state and authorized tri bal flexibility.

Some comments urged EPA to take a more holistic approach in this and other regulations, “ one which employs less separati on, categorization, and determination of quality with regard to individual water bodies ” rather than focusing on ‘ water bodies. ’ Comments pointed to the concept of hydrologic connectivity, and gave the example that “ [i]f a body of wate r identified as “ high quality ” shares relatively close hydrological connections with substantially more degraded bodies of water, one could logically conclude that to improve the quality of the degraded bodies of water would, by extension, enhance the quality of the body of w a ter deemed more pristine. ” They also pointed out that nonpoint source (NPS) pollution is significant and evidences the need to broaden the scope of water quality improvement efforts. While EPA agrees to a certain extent that in many cases, water bodies are hydrologically connected to one another, and that NPS pollution is a major source of degradation, the comments are outside the scope of this regulatory revision. EPA did not propose and is not finalizing any changes to the regulation regarding how ‘ water bodies ’ are considered individually or in a holistic, interconnec ted

manner.

Comments suggested that instead of revising the national regulation, EPA should first attempt to work closely with states that are not complying with the antidegradation requirements to see if the problems could be corrected without imposing national requirements. Some commenters suggested that EPA could use other administrative tools to bring the se states up to par. For example, they suggestedChapter 3 – Response Essays 7.l – Antideg – Other General

working collaboratively on a shared “ vision ” or “ framework ” for antidegradation implementation as they have for total maximum daily loads ( TMDLs ) and nutrient criteria and using grant funding and technical

a ssistance to target particular programs. EPA agrees that working together for a shared “ vision ” or

“ framework ” can be useful for articulating expectations, however, those do not culminate in legally binding requirements beyond those that the states and authorized tri bes themselves choose to adopt. EPA agrees that grant funding can be targeted to improve programs, but this is most appropriate when only one or a small number of states or tribes needs assistance, and EPA does not view lack of funding as the pr imary roadblock towards states and authorized tri bes imp lementing antidegradation effec tively. EPA agrees that technical assistance can be useful, and does plan to provide an update to the WQS Handbook antidegradation section after publication of the final rule. For more information, see response essay 7.c.



### B **. Public I**  **nvolvement**

Comments requested that EPA require public participation standards to be applied to the process of designation of high quality waters as well as to any determination to remove high quality waters from Tier 2 protection. EPA agrees that public involvement is important for decisions about whether Tier 2 protection will be afforded to a water. The final rule specifies a requirement for public involvement where states and authorized tri b es use a water body

- by

- water body approach to identify waters for Tier 2 protection. For discussion on why the final rule requirement refers to “ public involvement ” rather than

“ public participation, ” see preamble to the final rule. EPA explains its rationale for requiring “ public involvement ” elsewhere in this section.

EPA considered and agrees with comments supporting clarification regarding identification of high quality waters and public involvemen t. The final rule emphasizes the importance of public transparency in identifying waters fo r high quality water protection. EPA encourages states and authorized tri bes to consider providing processes by which public citizens and stakeholders can seek Tier 3 (or Tier 2.5, if that exists in the jurisdiction) protection for water bodies.

EPA considered comments describing the process a specific state ’ s antidegradation implementation procedures went through in order to be adopted. Some commenters describe the p rocess and effort as highly contentious and time consuming. Based on these and other comments, EPA determined that a requirement to adopt antidegradation implementation methods is unnecessary partly because their adoption may be a burden on some states. Pl ease see response essay 7.f.i for more information on why EPA did not finalize a requirement to adopt implementation methods.

EPA agrees with the concern expressed by some commenters that the proposed rule did not require states and authorized tribes to en gage the public on decisions when implementing a water body

- by

water body approach. Consequently, the public would not know the factors a state or authorized tribe considered in deciding that the water body did not merit Tier 2 protection, which would limi t the public ’s ability to provide constructive input during the permit ’ s public notice and comment period. One concern is that it has been possible for a state or authorized tribe to structure its water body

- by

- water body approach in a way that eliminates avenues for public involvement on the state ’ s decisions about
pr otecting high water quality. An example would be if the state or authorized tribe makes the decision
to exclude a water body from Tier 2 protection on a water body basis without public involve ment , because the decision is made outside of the context of a WQS revision or a permitting action that would require public notice and comment. A state or authorized tribe might subsequently allow issuance of a National Pollutant Discharge Elimination System ( NPDES ) permit for an activity that would allowChapter 3 – Response Essays 7.l – Antideg – Other General

lowering of water quality in that water body without a Tier 2 review. Because the decision not to provide Tier 2 protection to that water body was made prior to the permit application, during the permi t’ s public notice and comment period, the public would not have an opportunity to understand the basis for the state ’ s or authorized tribe ’ s decision that the water did not merit Tier 2 protection. The public also would not have an official avenue through which to provide input to the state or authorized tribe on factors being considered, or register disagreement with the state ’ s or authorized tribe ’s proposed approach. The final requirement at section 131.12(a)(2)(i) requires public involvement in these si tuations, which will increase transparency and accountability on states ’ and authorized tribes ’ water quality management decisions

.

Some c omments requested that EPA require public participation standards be applied to the process of designation of high qua lity waters as well as to any determination to remove high quality waters from Tier 2 protection. EPA agrees that states ’ and authorized tri bes ’ decisions on whether to provide Tier 2 protection to (or remove Tier 2 protection from) a water body should be subject to public involvement

. A key part of a state ’ s or authorized tribe ’ s antidegradation process is making decisions on how to manage high quality waters, which are a shared public resource. Therefore, any such decisions should not and

— pursuant to this final rule

— must not be made without opportunity for input from the public.

EPA found that public involvement is critical for increasing accountability and transparency in antidegradation implementation

. Thus, t he final rule includes a component specifically requiring public involvement for cases in which states and authorized tri bes make decisions about Tier 2 protection on a water body

- by

- water body basis. The final rule requirement is consistent with the CWA and the WQS regulation ’ s emphasis (which was described in the proposal preamble) on the public ’ s role in water quality protection. The new requirement adds a layer of public transparency and accountability to the ways in which states or authorized tribes make those decisions. This will be particularly valuable when using a water body

- by

- water body approach because such decisions are made looking holistically at the water body rather than at a ny specific chemical, biological, or physical parameter, and because certain applications of a water body

- by

- water body approach can exclude waters from the protections in section 131.12(a)(2), even though the water body may have assimilative capacity for some parameters. Therefore, it is important that such decisions receive as much public input as possible to ensure the right factors are considered. For more discussion on EPA ’ s rationale for requiring public involvement, see the preamble to the final rule

.

Comments expressed the view that “ antidegradation reviews must be performed under all three tiers of antidegradation, with the reviews documented and subjected to public review and comment. ” This comment is outside the scope of this regulatory revision. EPA agrees that states and authorized tri bes must provide all tiers of antidegradation protection where the tiers are applicable. However, this may or may not be called “ antidegradation review, ” depending on what the protection consists of and how the state or tribe implements antidegradation. EPA would anticipate that antidegradation reviews are typically documented by the permitting authority in the implementing program, for example in an NPDES permit factsheet. However, documentation of reviews is not within the purview of the 131 regulation.



### C **. Definitions and**  **W ording**  **C larifications** 
Comments regarding specific states ’ definitions of “ short term ” degradation are outside the scope of this rule. EPA did not propose or finalize requirements that would address these definitions.Chapter 3 – Response Essays 7.l – Antideg – Other General

Comments suggested that high quality waters should not be based solely on whether or not an in

stream parameter exists at a level that is better than applicable criteria, an d that a higher threshold should be set for high quality waters in order to be practicable for the state or tribe. Comments expressed that if this definition is maintained it forces states to do a parameter

- by

- parameter evaluation, which limits the flexibi lity for states to make their own assessments as to what constitutes a high quality water, and would be difficult to implement given the lack of in -s tream data for some parameters. EPA points out that states and authorized tri bes can define for themselves exactly how

“ high quality waters ” will be determined, including the data requirements, provided it is consistent with the federal rule. The federal rule does not prescribe how states will use data and information to determine whether a water is of high quality. In addition, today ’ s rule allows states to use a water body

by

- water body approach, which allows for much flexibility and does not require a parameter

- by

parameter evaluation of the water quality.

Comments stated that EPA ’ s proposed rule “ fail[ed] to allow states to promulgate a definition for

“ lowering of water quality ” as the term is used as a Tier 2 trigger ” and urged EPA to promulgate a definition for the final rule. EPA acknowledges the comments ’ point that the concept of what, and how much, exactly constitutes a “ lowering ” of high water quality affects what would trigger a Tier 2 review. These comments are outside the scope of this rulemaking because EPA did not propose (and did not finaliz e ) a de finition of “ lowering of water quality .” The preamble to the final rule addresses questions about “ de minimis ” considerations.

Commenters suggested that EPA use different wording to prevent confusion around some topics, for example, not to say “ Tier 2 high quality waters ” because the implication is that some waters can be called “ Tier 1 waters, ” which is misleading since Tier 1 applies to all waters. EPA agrees that Tier 1 applies to all waters of the U.S., and the final preamble thus refers to “ high qualit y waters ” and “ Tier 2 review ” or “ Tier 2 protection ” separately. Likewise, EPA agrees that the term “ antidegradation reviews ” can create ambiguity, so the final preamble refers to “ Tier 2 reviews. ” Commenters also ask for clarification on EPA ’ s statement i n the proposal preamble that “ antidegradation reviews ” are triggered by “ revisions to effluent limitations based on a TMDL, wasteload allocation, or water quality standard, but they are not required for revisions to a TMDL, wasteload allocation, or water quality standard. ” EPA clarifies here that “ antidegradation reviews ” in that context meant all applicable aspects of antidegradation protection including Tier 1 (though the commenters point out correctly that Tier 1 protection is not commonly considered to be a “ review ” per se.) The point of the statement in the proposal preamble was not to distinguish between Tier 2 and Tier 1 protection. Rather, it was to explain that antidegradation protection (all aspects) actually occurs in the context of activities that would affect water quality (e.g., changes to an effluent limit in a permit), and not in the context of the planning aspects of CWA programs (e.g., antidegradation protection does not actually occur in a TMDL itse lf.)

See Native Village of Point Hope v. U.S. Envtl. Prot. Agency , No. 3:11

- cv -0 0200

- TMB, slip op. at 24

- 25 (D. Alaska Sept. 14, 2012).



### D. **Tier 2 W**  **aters and Tier 2**  **R eview** 

Some commenters stated that EPA ’ s proposed Tier 2 review methodology would create a huge burden on states and permittees seeking to obtain authorization for new projects. EPA recognizes that many
states and authorized tri bes will have an increased administrative burden to make changes to their regulation s for consistency with the final rule. However, some states may face no additional burden. Some commenters contend that no permittee would be allowed to increase any pollutants to a streamChapter 3 – Response Essays 7.l – Antideg – Other General

unless they demonstrated they were applying the most stringent wastewater technology that could be paid for by the company and that no other project options were determined to be available that would decrease pollutant loading, including a reduced project scope or no project at all. EPA disagrees with this assessment. The final requirement for alternatives analysis, like the proposed requirement addressed by the comments , allows for considerable state and authorized tri bal discretion as to choosing which alternative to implement. They are not required to implement any alternative that is not “ practicable, ” nor are they required to implement the “ least degrading ” practicable alternative. For more information, see response essay 7.b.

EPA acknowledges that comments requested that EPA consider revising the antidegradation Tier 2 provision in which a state or tribe can allow lowering of water quality if necessary to accommodate important economic or social development in the area in which the waters are located. EPA d id not propose any changes to that aspect of 131.12, so this comment is outside the scope of this rulemaking.

Comments requested that EPA clarify in revision of regulatory language or in preamble, whether “ in the

area ” is intended to be local, to the exclu sion or regional or statewide, or whether it does not exclude broader interests, and whether “ development ” does or does not include environmental protection. EPA did not address these questions in regulatory language or in preamble, as they relate to the

e conomic/social development aspect of 131.12 which EPA neither proposed nor finalized changes to, and are therefore outside the scope of the regulatory revision. States and authorized tribes have considerable flexibility regarding how to consider social and economic development in the context of decisions about allowing degradation of high water quality. EPA guidance is available at: http://water.epa.gov/scitech/swguidance/standards /economics/

. Several commenters expressed disagreement with the language in 131.12(a)(2) related to “ cost effective and reasonable best management practices for nonpoint source control. ” Commenters incorrectly identified the phrase as a proposed amendment or new requirement, but the phras e was already included in the previous regulation before this final rule. These comments are beyond the scope of this rulemaking, because EPA neither proposed nor finalized changes to this phase.

Comments expressed the view that w here WQS are being met on high quality waters (Tiers 2 and 3),

“ minor degradation should have little or no impact on the uses. ” The commenter does not define

“ minor degradation. ” Tier 2 and Tier 3 provide protection for water quality above and beyon d the levels needed to simply protect the designated uses. Hence, “ minor degradation ” of high water quality in high quality waters may not impair the designated uses, but it does degrade the water quality. Therefore, section 131.12 may apply even when there is “ minor degradation. ” Note that states and authorized tribes can use de minimis exclusions, as long as they use them in a manner consistent with the CWA and section 131.12 (see the Preamble to the final rule for more disc ussion).



### E. Tier 2 **R elationship**  **to 303(d) L**  **isting**

Comments state d that the pr o posed requirement for identification of high quality waters is problematic in that it could require states to conduct “ anti degradation reviews ” for impaired waters (waters listed on 303(d) lists) , which would be inconsistent with s tate anti

- degradation policies EPA agrees that it is possible for a water to be considered ‘ high quality ’ (for purposes of Tier 2 of antidegradation) and

‘ impaired ’ (by the 303(d) listing program) at the same time. For example, a water might be of high quality with respect to some chemical, physical, and biological parameters but impaired with respect to others. Tier 2 can provide protection for the high water quality that exists in the water bodyChapter 3 – Response Essays 7.l – Antideg – Other General

(e.g., assimilative capacity for some parameters), despite having impairments with respect to some parameters. Whether or not pre

- existing state and tribal antidegradation policies are consistent with the new federal regulation, publication of the final rule mean s that states and authorized tri bes must ensure that their regulations are still consistent with the new rule, or update as needed.

Comments related to under what circumstances and how states and authorized tribes would 303 (d) list waters based on antidegr adation are outside of the scope of this rulemaking. The regulations under 303(d) require s tates to consider whether waters are meeting any applicable WQS, including antidegradation, in their 303(d) listing process

. The WQS regulations do not address listing. EPA ’ s 2014 Integrated Reporting guidance spoke to this question. ( Memorandum dated September 3, 2013 from Denise Keehner to Water Division Directors, entitled “ Information Concerning 2014 Clean Water Act Section s 303(d), 305(b), and 314 Integrated R eporting and Listing Decisions, ” http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/2014

- memo.cfm#memo .)

Some commenters did not support the option of utilizing the Integrated Report as a method of identifying Tier 2 water bodies due to concern that 303 (d) lists are based on limited data sets and will not result in long

- term protection for waters that consistently exhibit higher water quality. EPA agrees that re lying solely on the Integrated R eport to identify waters for Tier 2 protection can be problematic because it can miss important information. For example, if a water is assessed when it is experiencing low water quality due to a temporary condition (e.g., drought), a state or tribe looking only at the 303 (d) list might remove the water ’ s Tier 2 protection, even though the water could have high water quality most of the time. This is precisely the kind of situation the final r ule is intended to prevent by specifying requirements for states and authorized tri bes identifying waters for Tier 2 protection on a water body

- by

- water body basis.



### F. **Activities S**  **ubject to A**  **ntidegradation R**  **eview /**  **Triggers for Tier 2 R**  **eview**

Comments requested clarification that an antidegradation analysis would be triggered when an increase
to permitted loadings is proposed. The term “a ntidegradation analysis ” means more than just Tier 2 review. Tier 1 protection for existing uses applies to all waters, so regardless of what activity is occurring on a water body, the state or tribe ’ s Tier 1 protection should be provided. As for when Tier 2 review is

‘ triggered, ’ states and authorized tri bes have a variety of approaches, but generally EPA would expect that states and authorized tri bes initiate Tier 2 review for an activity that would allow more degradation than was previously allowed in that water body. One example of this would be a water body with a previously

- issued NPDES permit to discharge pollutan t A into a water body where the water quality

based effluent limit ( WQBEL ) for pollutant A is X mg/L. If the state or tribe wishes to re

- issue the permit with the same WQBEL, the re

- issued permit would not allow any more degradation than was previously all owed, and Tier 2 review would not be triggered. If the state or tribe wishes to re

- issue the permit with a WQBEL for pollutant A of X+Y mg/L, it is likely that Tier 2 review will be initiated because the permit would allow more degradation than it had prev iously.

Comments expressed the view that states ’ and authorized tri bes ’ WQS must clearly identify activities subject to antidegradation implementation review , giving a list of examples of activities it views should be subject to review

. These comment s are outside the scope of this rulemaking.

Comments expressed the view that no water bodies can be exempted from antidegradation review for compliance with antidegradation policy. Citations provided were : Title 40 of the Code of Federal Regulations ( CFR ) s ection 131.12; 40 CFR s ection 130.7(b)(3); and Kentucky Waterway Alliance,Chapter 3 – Response Essays 7.l – Antideg – Other General

540 F.3d 466, at 484

- 85 (6th Cir. 2008 ). The comment does not explain the relevance of the citations. EPA agrees in principle that no water bodies can be exempted entirely from anti degradation protection. Section 131.12 applies to all waters, although some states do apply de minimis degradation. T he he
t hree references cited by commenters concerned categorical exemptions for types of activities from antidegradation review, not exempt ions for specific water bodies.



### G **. Tier 2 P**  **rotection for A**  **ll P**  **arameters W**  **hen a**  **W ater**  **B ody**  **I s**  **C lassified**  **as Tier 2 u**  **nder the**  **W ater**  **B ody**  **A pproach** 

EPA considered comments responding to EPA ’ s request for comments in the proposal preamble regarding whether to specify how a state or tribe determines for which parameters Tier 2 review must be conducted depending on the approach used to identify high quality waters. The EPA had requested comment on whether, once a high quality water is identified, the Tier 2 review process for that water body should differ depending on the approach used to identify it as high quality. The p reamble explained that EPA could specify that for the water body

- by

- water body approach, Tier 2 reviews must be conducted for all parameters for which the water quality has been identified as better than the applicable criteria developed to support the CWA 101(a)(2) uses. Alternatively, the EPA could specify that for waters identified as high quality on a water body

- by

- water body basis, Tier 2 reviews are only required for parameters associated with the 101(a)(2) uses currently being supported. Please see response essay 7.d.iii for EPA ’ s response.


### H. Antidegradation **R eview**  **W here**  **W aters**  **H ave**  **a “H**  **ighest A**  **ttainable U**  **se ”** 

Comments stated that EPA should clarify that antidegradation Tier 2 review is not required in states that apply antidegradation review on a waterbody

- by

- wat erbody basis with respect to a “ highest attainable

use ” (HAU) and the supporting criteria that are established after a use attainability analysis ( UAA ( or variance. EPA disagrees. EPA recognizes that when a “ highest attainable use ” is established pursuant to a UAA or variance, the use adopted often reflects a use does not support the full use specified in CWA 101(a)(2). Howeve r, a water body that does not exceed levels necessary to support one use specified in section 101(a)(2) of the Act may exceed levels necessary to support other uses specified in section 101(a)(2) of the Act, and may qualify for Tier 2 protection. (Please s ee section E of this essay and response essay 7.d.ii for more discussion of how waters that not supporting all the uses specified in CWA 101(a)(2) can still receive Tier 2 protection.) Therefore, it is inappropriate to categorically except waters with designated uses that are “ highest attainable uses ” from Tier 2 review. When determining to which waters to provide Tier 2 protection, states and authorized tribes should continue to look at whether “ the quality of the waters exceeds levels necessary to support the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water ” (per 131.12(a)(2)). Further, they must ensure that waters are not excluded from Tier 2 protection solely because water quality does not exceed those levels (per 131.12(a)(2)(i)).



### I. Classifying **W aters** 

Comments asked whether the new rule would require states and authorized tri bes to classify their waters in terms of quality for purposes of antidegradation. The final rule does not require this. States and auth orized tribes may identify high quality water for high quality water protection on a parameter

by

- parameter basis. Alternately, they may identify waters for specific tiers of antidegradation protection on a water body

- by

- water body basis. A water body

- by -w ater body basis does not categorize waters in categories of ‘ quality ’ (e.g., a category for ‘ low quality waters ’ and a category for ‘ high quality waters ’ ),Chapter 3 – Response Essays 7.l – Antideg – Other General

but categorizes waters into categories of ‘ protection. ’ For example, some waters would be categorize d as receiving Tier 1 protection only, while other waters would receive Tier 1 and Tier 2 protection, and others would receive Tier 1 and Tier 3 protection.



### J. Tiers of Antidegradation **O ther**  **t han**  **Tier 2**

Comments expressed that “ Lower quality Tier 1 waters ” should not be subject to the highly restrictive and regimented antidegradation analysis prescribed by the proposed rule . EPA disagrees with the comment. The proposed rule did not propose any changes to Tier 1 of antidegradation. Waters receiving only Tier 1 protection would not be subject to Tier 2 review. EPA also disagrees with the characterization of the proposed revision to the Tier 2 provision as “ highly restrictive and regimented. ” The proposal would have provided and the final rule provides consider able discretion to states and authorized tri bes in implementation of Tier 2 of antidegradation.

Comments stated that states and authorized tri bes must be required, in their implementation methods, to define Tier 1 existing uses and specify that protection of both existing a nd designated u ses is required. These comments are outside the scope of this rulemaking.

Comments stated that EPA ’ s focus on Tier 2 is misguided, because the increasing number of impaired waters argues for a focus on Tier 1 protection as well, and because Tier 1 is fundamental to WQS. EPA agrees in part that Tier 1 is an important aspect of antidegradation protection and fu ndamental to WQS. However, these comment s address Tier 1 which is outside the scope of this rulemaking.

Comments state d that if EPA is establishing requirements for antidegradation implementation, the requirements should address implementation of all antidegradation requirements and not just Tier 2 requirements

. T his is outside of the scope of this rulemaking.

Comments re quested that the proposed “ high waters identification criteria ” must be applied not only to Tier 3 waters but also to Tier 2.5 waters. EPA ’ s proposal did not propose any changes to requirements for Tier 3 or propose any requirements for Tier 2.5 (a concept which does not exist in the federal regulation.) This comment is outside the scope of this rule.

Comments indicated that what is actually required for states and authorized tri bes related to antidegradation is unclear because the CWA says little about it, the federal regulations are brief, and interpretations of the requirements are scattered among multiple documents (EPA memos and other writings, actions on state and authorized tri bal standards, and court decisions.) Comments pointed out that the proposed rule addressed a few select antidegradation issues but did not address many others, for example “ Tier 1, ” and requested that EPA be as clear as possible about what is required of states and authorized tribes, and how much discretion states and authorized tribes have. EPA points out that the CWA and federal regulatory requirements and court decisions interpreting those requirements articulate what is ultimately ‘ required ’ of stat es and authorized tribes, and that any additional writing from EPA results can provide guidance to states and authorized tribes but do not provide binding requirements. States and authorized tri bes have considerable discretion when addressing antidegradati on implementation at a more detailed level than the CWA and federal regulations addres s. EPA agrees with the comments that more guidance would be useful, and will consider providing additional guidance

.Chapter 3 – Response Essays 7.l – Antideg – Other General



### K **. Antidegradation I**  **mplementation M**  **ethods as**  **O ne**  **of the Minimum**  **R equirements**  **for W ater**  **Q uality**  **S tandards**  **Submission**

Comments requested that EPA amend section 131.6(d) to clarify that antidegradation implementation methods (not only antidegradation policies) are among the minimum requirements for a WQS

su bmission

. The final rule does not require submission of implementation methods to EPA, but requires that states and authorized tri bes shall provide an opportunity for public involvement during the development and any subsequent revisions of the implementation methods, and shall make the methods available to the public. Therefore, section 131.6(d) remains accurate without revision.



### L **. The P**  **roposed R**  **equirements R**  **epresent C**  **ore P**  **rovisions of**  **P olicy** 

Commenters stated that “ the proposed requirements for implementation methods in 40 CFR s ections 131.12(b)(1) and (2) are not truly implementation methods but, rather, represent core provisions relating to the policy itself. These provisions, subject to our comments above, should be included under antidegradation policy as opposed to implementation. More importantly, the inclusion of these two items under implementation methods gives the erroneous impression that these are the only issues that must be addressed in implementation me thods .” EPA agrees with this comment. EPA has therefore revised the structure of the final rule to reflect that the provisions about high quality water identification and about analysis of alternatives are indeed core aspects of policy, not just implementation. Please see the preamble to the final rule for more explanation.



### M **. Minimum E**  **lements of**  **A ntidegradation**  **I mplementation** 

Comments stated that the proposal preamble ’s list of “ areas states ’ and authorized tri bes ’ implementation methods would need to address, at a minimum, to be consistent with the WQS regulation ” does not adequately ensure that states will be required to develop methods that are consistent with the CWA and 40 CFR Part 131

. EPA agrees with this statement; a list of items in a preamble is n ot a binding rule, and therefore does not, in and of itself, “ ensure ” any action from state and authorized tri bes. See response e ssays 7. g.i and 7.g.iii for additional information about the minimum elements.

Comments also stated that the list is inconsiste nt with the CWA and WQS regulation, and that EPA should either include a general statement that implementation plans are to be consistent with the CWA and 40 CFR Part 131, or should propose in the rulemaking standards for implementation plans that can be reviewed and commented on by the public. EPA disagrees that the proposal preamble list of minimum elements was inconsistent with the CWA and WQS regulation at 131.12. The list of elements was derived from the elements of the previously existing WQS regulation plus the elements that were proposed as rule text and are consistent with the CWA and section 131.12 . EPA did not include a list of minimum elements in the final rule or preamble. The necessary elements are contained in 40 CFR 131.12. EPA agrees that states ’ and authorized tri bes ’ implementation methods should be subject to public involvement, and has included such a requirement in the final rule.



### N **. Antidegradation in P**  **ractice in a**  **S tate** 

EPA considered comment s supporting EPA ’ s description of antidegradation as providing a framework for maintaining existing uses, for protecting waters that are either attaining or are of a higher quality than necessary to support the CWA 101(a)(2) goals, and for protecting state/tribal identified OutstandingChapter 3 – Response Essays 7.l – Antideg – Other General

Nat ional Re source Waters (ONRW) . Comments provided Oregon as an example to justify their argument that EPA ’ s description, while theoretically correct, is wrong in practice because it can just be a “ set of words with little or no real world meaning. ” Comments describe d concerns about the state ’s identification of existing uses, changes to identification of waters subject to Tier 2 review without public comment or approval of its commission, and overly broad exclusion of waters with even one impairment from Tier 2 protection, and lack of identified waters for ONRW protection. EPA considered these examples and anecdotes and thus includes in the final rule a requirement that states and authorized tribes must provide an opportunity for public involvement in decisions about which waters to provide (or not provide) with Tier 2 protection on a water body

- by

- water body basis. Additionally, the final rule ’s provision regarding conditions on the identification of waters for Tier 2 protection is intended to prevent overly broad exc lusion of waters from Tier 2 protection and to ensure that the public has a chance to participate influence those decisions.

Comments asked what EPA ’ s proposal preamble meant by “ [h]igh quality waters provide support for aquatic life and recreation and sup port unique and significant ecologies a nd species habitat. ” They asked whether EPA was referring to actual waters, or waters that some states have identified as “ high quality
waters. ” EPA was referring to actual waters that have high water quality, whether states identify them for Tier 2 protection or not.

Some commenters explained their view that EPA not taking a specific position on exactly what the scope of high quality waters is un dermines EPA ’ s points in the proposal preamble, because states and authorized tri bes can choose to withhold Tier 2 protection from all or nearly all waters because they deem the impairment of one parameter to result in the lack of protection for all parame ters. These
commenters argue that EPA ’ s proposed revisions to the identification of high quality waters would allow for variability that can result i n some states providing the very best of protection while others provide no protection whatsoever , and that EPA should instead require states to identify high quality waters on a parameter

- by

- parameter basis. EPA agrees in part, that the parameter

- by

- parameter method is clearly protective and consistent with the CWA because it protects high quality waters for a ll parameters for which the water has high quality. EPA disagrees that the proposal would have allowed for some states to provide no protection whatsoever. The final rule provides a balance between additional accountability and conditions for states and authorized tribes using a water body

- by

- water body method and flexibility for states and authorized tri bes to implement their programs in a practicable manner. Please see
response essay 7.d.i for additional explanation of why EPA chose to finalize the new re gulat ory provision for identification of waters for Tier 2 protection

.Chapter 3 – Response Essays 7.m – Antideg – Legal



## Essay 7. **m – Antideg**  **radation : EPA**  **’ s**  **Legal Authority** 

**A. C**  **lean W**  **ater A**  **ct Authority**  **for the Proposal**  **in General** 
The U.S. Environmental Protection Agency ( EPA ) disagrees that the proposed changes to the antidegradation portion of the water quality standards ( WQS ) regulation were beyond Congress ’ intent and a “ reversal ” of current law

. As stated in the preamble to the final rule, EPA ’ s WQS regulation has included antidegradation provisions since 1983. Today ’ s regulation does not reverse current law, but revises the antidegradation regulation to enhance protection of high quality waters and to promote consistency in implementation. EPA also disagrees with comments stating that the Clean Water Act ( CWA ) does not give EPA authority for the proposed changes to the a ntidegradation portion of the WQS regulation, because the Act did not include the term until 1987

. Some c omments also argue that the reference to antidegradation is only in section 303(d), not 303(c), and in section 118 which instructs the Agency to public water quality guidance for the Great Lakes Systems. These comments argue that EPA does not have the authority for the regulatory changes in today ’s final rule. EPA further disagrees that the CWA only establishes authority for states and authorized tribes to establish their own WQS but does not establish authority for EPA to review those WQS.

EPA discussed its authority for the final regulation in the preamble stating:

“ Some commenters questioned the legitimacy of considering antidegradation a part of WQS, ” and questioned EPA ’ s statutory authority to promulgate regulations related to antidegradation. Section 101(a) of the CWA emphasizes the prevention of water pollution and expressly includes the objective

“ to restore and maintain the chemical, physical, and biological integrity of the Nation ’ s waters ” (U.S.C. 1251) (emphasis added). The antidegradation requirements that EPA incorporated by regulation in 1983 at CFR 131.12 implement the maintenance aspect of CWA section 101(a) and are an essential component o f the overall WQS program. Although designated uses and criteria are the primary tools states and authorized tribes use to achieve the CWA section 101(a)(2) goals, antidegradation complements these by providing a framework for maintaining existing uses, fo r protecting waters that are either attaining or are of a higher quality than necessary to support the CWA section 101(a)(2) goals, and for protecting state/tribal identified ONRWs. Antidegradation plays a critical role in allowing states and authorized tr ibes to maintain and protect the valuable resource of high quality water by ensuring that decisions to allow a lowering of high quality water are made in a transparent, public manner and are based on a sound technical record.

In the Water Quality Act of 19 87, Congress expressly affirmed the principle of antidegradation that section 101 of the Act articulates. In those amendments to the CWA, Congress incorporated a reference to antidegradation policies in section 303(d)(4)(B) of the Act (33 U.S.C. 1313(d)(4) (B)): “ Standard Attained – For waters identified under paragraph (1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable WQS, any effluent limitation based on a total maximum daily load or other wasteload allocation established under this section, or any water quality standard est ablished under this section,

or any permitting standard may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section. ” This provision not only confirms that anChapter 3 – Response Essays 7.m – Antideg – Legal

antidegradation policy is an integral part of the CWA, but it also explains the relationship of the antidegradation policy to some other CWA regulatory progr ams. 1

EPA provides some additional discussion in this essay.

EPA ’ s legal authority to finalize changes to the antidegradation portion of the WQS regulation derive s from CWA sections 301(c) and 501(a).

Section 303(c)(1) requires each state to review at least once every three years applicable WQS and, as appropriate, modify and/or adopt standards. Section 303(c)(2)(A) requires each state to submit any new or revised standards to EPA, and requires that such revised or new standard consist of the designated

use s of the navigable waters involved and the water quality criteria for suc h waters based upon such

uses. Section 303(c)(2)(A) also states that such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve th e purposes of this chapter

. Under section 101(a), the purposes of the CWA include “ to restore and maintain the chemical, physical, and biological integrity of the Nation ’ s waters ” (emphasis added). Antidegradation requirements are a means to “ restore ” and

“ maintain ” the integrity of the nation ’ s waters. Section 501(a) authorizes the Administrator to prescribe such regulations as are necessary to carry out her functions under this chapter.

In addition, the long history of the federal antidegradation policy, of which Congress was aware when it passed the CWA in 1972, support s EPA ’ s authority to promulgate the final rule provisions related to antidegradation

. The basic federal antidegradation policy was established on February 8, 1968, by the Secretary of the I nterior. When the CWA was enacted in 1972, the WQS of all 50 states h ad antidegradation provisions. By providing in 1972 that existing state WQS would remain in force until revised, the CWA ensured that states would continue their antidegradation programs. EPA ’ s first WQS regulation, promulgated on November 28, 1975, included a similar antidegradation policy at Title 40 of the Code of Federal Regulations ( CFR ) section 130.17, 40 Fed. Reg. 55,340

- 41. EPA slightly refined and

re

- promulgated its antidegradation policy as part of the program regulation published at 40 CFR 131.12, 48 Fed. Reg. 51,400 (Nov. 8, 1983).

Moreover, Congress acknowledged EPA ’ s authority to promulgate antidegradation regulations in the 1987 CWA amendments, in which Congress added CWA section 303(d)(4)(B), which states the following:

“ STANDARD ATTAINED. — For waters identified under paragraph (1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable water quality standards, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section, or any water quality standards established under this section, or any other permitting standard may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section ” (emphasis added).

The phrase “ this section ” refers to CWA section 303, which governs WQS and implementation plans.

1 PUD No. 1 of Jefferson County v. Washington Department of Ecology , 511 U.S. 700, 705 (1994) (“A 1987 amendment to the Clean Water Act makes clear that section 303 also contains an ‘antidegradation policy... ‘”).Chapter 3 – Response Essays 7.m – Antideg – Legal

The Suprem e Court has acknowledged the longstanding federal antidegradation policy and EPA ’s authority to publish antidegradation requirements. In PUD No. 1 v. Washington Department of Ecology
, 511 U.S. 700, 704

- 05, 718

- 19 (1994), the Supreme Court discussed the lon g history of the federal antidegradation policy, dating back to 1968, pursuant to which all 50 states had adopted WQS with antidegradation provisions. It also acknowledged that EPA has, since 1972, consistently required that revised state standards incorporate an antidegradation policy.

As some comments pointed out, the only other reference to antidegradation in the CWA is found in section 118 . I n 1991, Congress included in the CWA provisions section 118 which required EPA to publish proposed water quality guidance for the Great Lakes System including guidance on minimum WQS, antidegradation policies, and implementation procedures ( Title 33 of the U nited S tates Code [U.S.C.] s ection 1268 (2)(A)). It further required that within two years after publication of the guidance, Great Lakes States shall adopt WQS, antidegradation policies, and implementation procedures for waters within the Great Lakes System which are consistent with such g uidance (33 U .S.C. S ection 1268 (2)(C)). Under that authority, EPA published the Great Lakes guidance (40 CFR Part 132, Appendix E), which included an antidegradation policy and implementation methods addressing many aspects of implementation including alt ernatives analysis, and requires Tier 2 protection on a parameter

- by

parameter basis. While this section of the Act was limited to the Great Lakes system, it indicates Congress ’ recognition of antidegradation as a fundamental part of WQS that states and au thorized tribes must address

. EPA disagrees with comments that EPA ’ s proposal exceeded its authority because in CWA s ection 118, 33 U.S.C. S ection 1268, Congress promulgated the Great Lakes National Program, and Congress also required those states to adopt stand ards, policies, and procedures “ consistent with ” that guidance. Id. section 1268(c)(2)(C). It is true that as a result of that statutory authority, EPA issued regulations that included an alternatives analysis (40 CFR Part 132, Appendix E). As pointe d out by commenters, those regulations describe the alternatives analysis, and then direct states to use the information in evaluating whether th e lowering of water quality is “necessary,” rather than requiring the states to conduct an analysis and choose an alternative. Commenters argued that based on a DC Circuit court ruling ( American Iron & Steel Institute v. EPA , 115 F.3d 979, 988 (D.C. Cir. 1997)), EPA was authorized to issue the Great Lakes regulations because the statute explicitly allowed for them in 1268(c)(2)(A) and the regulations left the states flexibility rather than immediately imposing requirements for the states. EPA disagrees with commenter ’ s reading of American Iron and Steel Institute v. EPA

. T he case does not support commenter s’ proposition that EPA cannot issue regulations that impose immediate requirements on states. The commenter asserts that in American Iron and Steel Institute v. EPA , the court said that “ EPA was authorized to issue [the Great Lakes regulations] because ‘ (2) the regulations set out a standard but left the states flexibility to create a program that met that standard – that is, the regulations did not ‘ immediately impose any requirements ’ on the states. ” The commenter mischaracterizes the court ’ s statement. In American Iron and Steel Institute v. EPA , t he court analyzed whether EPA could issue a regulation ; challengers argued that EPA was not authorized to issue a binding regulation given the language of s ection 118 requiring EPA to publish water quality guidan ce for the Great Lakes in the Federal Register (FR)

. When discussing the Great Lakes guidance that EPA published, the court stated:

It is clear that § 118 gave the agency the authority to proceed as it did. Petitioners protest that the agency had no author ity to promulgate a binding regulation. We note first that it is not clear that the Guidance can properly be characterized as a binding regulation. It certainly restricts state flexibility, but it does not immediately impose any requirements

. It merely ann ounces theChapter 3 – Response Essays 7.m – Antideg – Legal

standards by which state submissions will be judged and informs the states of the default rule that the agency will apply if a state submits a nonconforming plan. R egardless of how the Guidance is characterized, it is clear that Congress gave the agency the authority to issue the Guidance in this form. In previous cases we have held that Congress ’ s use of the term “ guidance ” does not preclude an agency from doing what the agency did here. (“ Congress ’ use of the term “ guidance ” is not inconsistent with a rule, like this one, that incorporates a binding performance standard but leaves the states considerable flexibility in fashioning p rograms that meet the standard. ” ). . . . The statute in th is case commands the agency to “ specify numerical limits on pollu tants ” and provide guidance on “m inimum water quality standards. ” § 118(c)(2)(A). It is unlikely that Congress would have directed the agency to set these limits and standards without also intending to allow the agency to enforce them against the states.

115 F.3d at, 98 8 (emphasis added and citations omitted ).

Thus, the DC Circuit described EPA ’ s regulations as “ not immediately impos[ing] any requirements, ” but the court upheld the regulations on other grounds. T he court held that even though Congress used the word “g uidance, ” EPA had authority to issue the guidance in the form of a regulation. Therefore,
commenter ’ s argument that the s ection 303 authority does not permit EPA to “ require more onerous requirements ” than in s ection 118 is flawed. Section 118 gave EPA the authority to issue regulations, even though that section used the term “ guidance. ” Section 303 and s ection 501 give EPA authority to issue antidegradation regulations.

Some c ommenters stated that CWA 303 is focused on state WQS and programs, not programs to be developed by EPA, and so it does not authorize EPA to develop new antidegradation standards and impose those obligations on states and authorized tribes. EPA disagrees. CWA 303 does focus on state and authorized tribal development of WQS, as they have primacy to implement their programs. However, section 303 also explains EPA ’ s oversight over state and authorized tribal WQS to ensure that they are consistent with the Act (which would include sections 101 and 303) . As explained elsewhere in this section, CWA section 501(a) authorizes the Administrator to prescribe such regulations as are necessary to carry out her functions under the Act

.

Commenters argued that Congress has not established any standards against which the

“ antideg radation procedures and standards ” promulgated by EPA could be judged against to ensure they are reasonable and consist ent with Congressional intent. They also stated that the proposed antidegradation provisions go beyond EPA policy that existed in 1987 wh en the reference to “ the antidegradation policy established under this section ” was added to s ection 303(d)(4)(B) of the CWA

. CWA section 501(a) authorizes the Administrator to prescribe such regulations as are necessary to carry out her functions under section 303 (and other sections of the CWA)

. EPA ’ s view is that the language in 303(d)(4)(B) “ established under this section ” does not mean that the antidegradation policies in effect as of 1987 were the only antidegradation policies authorized by the CWA. EPA disagrees that the proposal or the final rule would usurp state authority without statutory authorization. EPA ’ s view is that the final rule is reasonable and consisten t with the CWA intent to restore and maintain the Nation ’s
waters

. EPA also disagrees that the reference in 303(d)(4)(B) to antidegradation policies is drafting error. The language has been in the CWA since 1987. The Supreme Court in PUD No. 1 v. Washington Department of Ecology stated that the 1987 amendment to the CWA “ makes clear that § 303 also contains an ‘ antidegradation policy ’” and cites section 303(d)(4)(B).Chapter 3 – Response Essays 7.m – Antideg – Legal

EPA disagrees with comments stating that because CWA 303(c) does not specifically mention antidegradation as part of WQS (along with designated uses and criteria), EPA is pre cluded from requiring states to adopt antidegradation policies and methods as part of their WQS. EPA has explain ed elsewhere in this section the Agency ’s authority for requiring antidegradation policies as a fundamental component of WQS . R ead as a whole, the Act (including s ections 101(a), 303(c)
, 303(d) , and 501(a) ), provides EPA with authority to require antidegradation policies which the Supreme Court acknowledged in PUD No. 1 v. Washington Department of Ecology . The final rule does not r equire states and authorized tribes to adopt implementation methods into state or authorized tribal regulations

. EPA disagrees with comments saying that the previously existing EPA regulatory provisions regarding antidegradation at section 131.12 and secti on 131.6 already apply or exceed the maximum extent of EPA ’ s authority over state and authorized tribal antidegradation policies under the CWA. The proposal preamble
, today ’ s final rule preamble, and the discussion above have described EPA ’ s authority to p romulgate antidegradation regulations under the CWA. The previous regulations and today ’ s rule are within EPA ’ s authority under the CWA . EPA further disagrees that because the CWA does not specify elements of antidegradation implementation methods, those elements are properly left to states and authorized tribes. Congress authorized EPA to write rules and regulations that explain the critical details necessary to implement the CWA

. CWA section 501(a) authorizes the EPA Administrator to prescribe such regulations as are necessary to carry out her functions under section 303 . R egulation s are necessarily more detailed than statutory language.

EPA disagrees with commenters that EPA ’ s proposal meant that EPA would first write implementation methods for the state s and authorized tribes and then review states ’ and authorized tribes ’ adopted methods “ to make sure they get them right. ” The final rule does not write implementation methods for states and authorized tribes . It sets some boundaries on specific aspects of antidegradation policies and requires public involvement and availability of implementation methods. EPA already had authority to review and act on adopted antidegradation implementation methods, and the final rule does not change that authority

.
EPA agre es that the previously existing version of 40 CFR section 131.12 directed the states and authorized tribes to adopt a statewide antidegradation policy and “ identify the methods for implementing such a policy, ” both of which must be consistent with paragrap hs 131.12(a)(1) through (4), which set out the substantive requirements of an antidegradation provision. EPA agrees that this is consistent with the CWA. However, EPA disagrees with comments stating that the application and implementation of state WQS is a ddressed in the previously existing provision at 40 CFR section 131.13 which stated: “ States may, at their discretion, include in their State standards, policies generally affecting their application and implementation, such as mixing zones, low flows and variances. Such policies are subject to EPA review and approval. ” Commenters said that this citation means that not only are the implementation policies clearly mandated under current EPA regulations, they are also already subject to EPA review and approva l, while the method of implementation is left to states ’ discretion. EPA disagrees. 40 CFR section 131.13 does not refer to antidegradation implementation methods or policies; it only refers to policies that are discretionary under the WQS regulation, such as mixing zones. 40 CFR section 131.12 is the provision specific to antidegradation policies and implementation methods, which are not discretionary. Further, EPA reviews states ’ and authorized tribes ’ adopted antidegradation implementation methods as WQS under the same 303(c) authority.Chapter 3 – Response Essays 7.m – Antideg – Legal

EPA agrees that the CWA does not explicitly define antidegradation implementation methods as WQS and does not create veto authority over states ’ and authorized tribes ’ antidegradation implementation methods. CWA 303(c) did, however, create approval/disapproval authority for EPA over states ’ and authorized tribes ’ legally binding WQS. The WQS regulation at 40 CFR s ection 131.12 required antidegradation policies be adopte d. This means, they have to be legally binding. Section 131.6 holds that antidegradation policies consistent with section 131.12 are minimum requirements of state and authorized tribal WQS submissions. As such, even prior to the final rule, states ’ and aut horized tribes ’ antidegradation policies were legally binding, and were subject to EPA review and action under 303(c). The final rule revision to section 131.5(a)(3) confirms that states ’ and authorized tribes ’ legally binding antidegradation provisions ar e subject to EPA review and action under 303(c).

EPA disagrees that the proposal purported to create mandatory duties for states and authorized tribes for activities that are far beyond EPA ’ s jurisdiction. Commenters did not provide evidence for this

asser ti on.
Commenters stated that methods for implementing WQS are not WQS for the same reasons that compliance schedules (CS) to achieve WQS are not WQS but did not provide a rationale for this statement. EPA agrees that implementation methods for WQS are not necessarily new or revised WQS over which EPA has 303(c) authority, and that National Pollutant Discharge Elimination System ( NPDES ) permit CS are not new or revised WQS over which EPA has 303(c) authority. However, any analysis of an implementation method
, CS , or other procedure to determine if it is a WQS is case specific. Commenters did not provide specific examples, so EPA is unable to express views on specific CS or implementation methods. To identify whether a provision or a document is a new or revised WQS over which EPA has 303(c) authority, it is useful to consider “ What is a New or Revised Water Quality Standard Under CWA 303(c)(3)? ” frequently asked questions ( FAQ s) ( http://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm ).

EPA disagrees that the proposed analysis of alternatives requirement exceeds EPA ’ s authority by requiring states to analyze a facility ’ s planned “ upstream ” operations (i.e., the internal was te stream, operations, etc

. ), examine alternatives, and choose one if practicable. T he final rule ’ s requirement for states and authorized tribes to consider an analysis of alternatives in Tier 2 review does not obligate the state or authorized tribe to dic tate exactly how a facility must operate to achieve the lessening or prevention of degradation that the permitting authority (often the state itself) requires after the state ’s or authorized tribe ’ s Tier 2 review and determination of whether degradation is “necessary.” EPA is not regulating “ upstream ” operations, as the commenter argues.

The final regulation requires that “ [w]hen the analysis of alternatives identifies one or more practicable alternatives, the State shall only find that a lowering is necessary if one such alternative is selected for implementation. ” It does not require implement ation of a particular alternative (e.g. the least degrading alternative) , but requires that an alternative be selected for implementation in order for the state to

ma ke a finding that a lowering in water quality is necessary . The selected alternative is chosen because it represents a level of degradation that is less degrading than what was proposed. The key point is that the state or authorized tribe chooses to allow that level of degradation. The state or authorized tribe uses the analysis of alternatives to determine whether (or how much) degradation is “necessary” before they issue an authorization (e.g., an NPDES permit) or condition a 401 certification (if EPA or another federal agencies issues the authorization) that could allow degradation. The state or authorized tribe would issue its authorization or condition the 401 certification reflecting the levels that would allow only what they had determined as the “ nec essary” degradation per the Tier 2 review, based on the expected performance of whichever practicable less - or non

- degrading alternative was identified and chosen. ThisChapter 3 – Response Essays 7.m – Antideg – Legal

could result in the state or authorized tribe choosing to not allow the activity to degrade water quality at all, in which case they could deny issuance of an authorization. Or, it could result in allowing a facility to degrade water quality only to a limited degree . The facility itself would need to discharge consistent with the required le vels, but the specifics of how the facility meets the requirements of the authorization would be left to the facility. The alternatives analysis identifies how a specific alternative can achieve that level of degradation, but ultimately it is possible that the facility can choose to achieve th e level of degradation specified by its authorization using a different means. See more information at essay 7.k.

Comments point out that the CWA section 101 aspirational goal is in a different section from section 303 (d) where antidegradation is mentioned in the context of states and authorized tribes revising their own policies, which is a different section from 303(c) that discusses EPA review and action on WQS. EPA agrees that as a factual matter
, are separate sections of the statute; however, the Agency disagrees with the commenters that EPA does not have authority to promulgate the final rule and is altering the statutory arrangement. EPA is finalizing regulations that are consistent with the CWA and are neces sary to carry out the Administrator ’ s functions under the CWA; the regulations do not alter the statutory arrangement . EPA views the sections of the Act together , and explains its authority based on the Act in the preamble to the final rule and in this com ment response essay.

EPA disagrees with comments saying that Congress ’ s authorization of EPA in the CWA to review the consist ency of state WQS with the CWA does not authorize EPA to review the consistency of such WQS in light of EPA ’ s interpretation of other agencies ’ policies. C omment s said this would leave regulated entities in a delicate position: they would be unable to rely on state and authorized tribal interpretations of their own WQS or antidegradation policies, or the methods established under thos e policies, because EPA might disagree with those interpretations. First, in the final rule, EPA is not requiring states adopt antidegradation implementation methods into rule and therefore not all implementation methods are subject to EPA review under the final regulations. If a state has non

- binding implementation methods, EPA will not review those methods as WQS subject to EPA ’ s approval or disapproval pursuant to section 303(c)

. The rule at section 131.12(b) requires states ’ and authorized tribes ’ antidegradation implementation methods (whether or not those methods are adopted into rule) to be consistent with their antidegradation policies and with section 131.12(a). Pursuant to the Agency ’s CWA authority to review and approve or disapprove state and aut horized tribal WQS, EPA fully explore s the meaning of adopted state or authorized WQS before taking action. In cases where the WQS are ambiguous or provide little detail, EPA relies on supporting documentation (including the state ’ s or authorized tribe ’s antidegradation implementation methods) that further explains the mean ing of the standards so that EPA can assure that its action will correctly identify whether the WQS are consistent with the CWA and the WQS regulation. Comments argued that if a regula ted entity relied upon implementation m ethods selected by an authorized tribe or a state and that method was overturned based on the state ’ s or authorized tribe ’ s policy by EPA, the regulated entity would need to obtain EPA ’ s own interpretation of possible future implementation methods to assess its likely future obligations under the state or tribal program (i.e., after the state or tribe proposed alternative methods to satisfy EPA ’ s own interpretation). It is unclear what commenters meant by “ possible fut ure implementation methods to assess its likely future obligations under the state or tribal program .” However , EPA ’ s response to this hypothetical scenario is that in any case where EPA disapproves a state or authorized WQS, the regulated entity will be s ubject to whatever WQS have been approved and are thus effective for CWA purposes. 40 CFR 131.21 outlines the process by which disapprovals are resolved. However, if EPA finds that a non

- binding implementation method is inconsistent with section 131.12 or the state ’ s antidegradation policy, EPA ’s practice is to notify the state and encourage the state to revise the methods to be consistent withChapter 3 – Response Essays 7.m – Antideg – Legal

section 131.12 and the antidegradation policy. Maintaining consistency between section 131.12, the antidegradation policy, and implementation methods helps provide certainty to the regulated community. T o the extent that any antidegradation implementation methods undermine the applicable CWA antidegradation policy, EPA would have a basis to object to authorizations for regulated activities (e.g., an NPDES permit) that are not consistent with the applicable antidegradation WQS or make an Administrator ’ s Determination.

For responses to comments regarding technology

- based effluent limits and requirements, please see
respo nse essay 7.e.ii.



### B. EPA **’ s**  **Authority to**  **Review States ’**  **and A**  **uthorized Tribes’**  **Antidegradation Programs** 
Commenters said that EPA does not have statutory authority to require adoption of antidegradation implementation methods. The final rule does not require adoption of antidegradation implementation methods.

Commenters objected to the proposal preamble ’ s characterization of adding language to section 131.5(a) as “‘ describing ’ EPA ’ s authority to review and approve or disapprove ” antidegradation policies, beca use they said the action is not a clarification of an existing authority, but rather a codification of a

new broader regulatory authority without statutory authority , in a manner that would undermine the primary role of states and authorized tribes . EPA di sagrees. The Agency describes above its authority to prescribe antidegradation regulations and to review antidegradation policies under section 303. Furthermore, the already existing section 131.12 required states and authorized tribes to “ develop and adop t a statewide antidegradation policy ” . This means, they have to be legally binding. The already existing section 131.6 held that antidegradation policies consistent with section 131.12 are minimum requirements of state and authorized tribal WQS submissions

. As such, even prior to the final rule,
states ’ and authorized tribes ’ antidegradation policies were legally binding, and were subject to EPA review and action under 303(c). The final rule revision to section 131.5(a)(3) does not add a new authority but m akes explicit within that subjection that states ’ and authorized tribes ’ legally binding antidegradation provisions are subject to EPA review and action under 303(c).

Commenters said that EPA had incorrectly characterized the changes as clarification of existing requirements. EPA agrees that the final rule imposes new obligations, although EPA points out that many of the changes represent codification of existing policy that had previously existed as guidance. EPA appropriately requested comment on all of the proposed changes, and described its statutory authority in the preamble to the proposal . The title of rule does not substantively alter its content.



### C. EPA **’ s**  **Authority for**  **Antidegradation Implementation Methods**
EPA disagrees that there is no authority under the CWA to consider states ’ and authorized tribes ’ implementation methods as WQS on which EPA has 303(c) authority to act

. Antidegradation implementation methods for WQS are not necessarily new or revised WQS over which EPA has 303(c) authority, how ever, if they are adopted as legally binding, EPA would have 303(c) authority. For more information, see essay 7.g.ii, and “ What is a New or Revised Water Quality Standard Under CWA 303(c)(3)? ” FAQ ( http://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm ).Chapter 3 – Response Essays 7.m – Antideg – Legal

Some c omments stated that since the CWA does not specify or address antidegradation implementation methods, the regulation should not dictate requirements for implemen tation methods and implementation should remain a state and authorized tribal responsibility. EPA disagrees. The Agency has authority under section 501(a) to prescribe regulations to carry out the functions under the CWA through regulation; thus, the antid egradation regulation require s identification of implementation methods that are consistent with the state antidegradation policy and section 131.12(a) . The final rule does not dictate requirements for the content of implementation methods beyond that they must be developed, consistent with the state or authorized tribe ’ s policy, publicly available, and subject to public involvement upon development and revision. The final rule requirements for identification of waters for Tier 2 protection and for analysis of alternatives are included in the section on antidegradation policy, not implementation methods. For additional information, see essay 7.g.ii.

Some c omments asserted that the proposal muddied the discretionary nature of antidegradation implementation me thods by prescribing their contents. EPA agrees with comments emphasizing the importance of being able to include locally

- specific considerations in states ’ and authorized tribes ’ implementation methods. To the extent that commenter s impl y that every aspec t of antidegradation implementation methods was discretionary prior to today ’ s rule, EPA disagrees. States and authorized tribes must identify implementation methods (a requirement that existed prior to today ’ s rule) and the methods must be available to th e public (a new requirement of today ’ s rule). S tates and authorized tribes have discretion as far as the content of implementation methods as long as they are consistent with the state ’ s antidegradation policy

. The final rule continues to allow states and authorized tribes the discretion to adopt methods into rule or have them in guidance. The final rule structure is different from the proposal, so that the requirements related to identification of high quality waters and analysis of alternatives are in the section on antidegradation policies, not the section on antidegradation implementation methods. This clarifies that while states and authorized tribes continue to have discretion on whether to adopt their methods, their legally binding policies must at a minimum be consistent with the new requirements regarding analysis of alternatives and identification of waters for Tier 2 protection. Further, while the proposal preamble discussed what EPA viewed as ‘ minimum elements ’ for antidegradation implementation m ethods to be consistent with 40 CFR 131.12, there is no regulatory requirement in the final rule for ‘ minimum elements. ’ For a state or authorized tribal antidegradation program to be consistent with the federal rule, their policy and methods must be consi stent with 40 CFR 131.12.

Some commenters requested that EPA clarify what antidegradation implementation methods would need to include to be consistent with the federal antidegradation regulation. The preamble to the final rule discusses EPA ’ s interpretation of the requirements of the final rule. EPA views the content of antidegradation implementation methods as an area in which states and authorized tribes have considerable discretion, as long as they are consistent with the federal regulation. EPA will co nsider providing additional guidance, such as examples of provisions of implementation methods that are consistent with the federal regulation, in the future.Chapter 3 – Response Essays 7.m – Antideg – Legal



### D **. Concerns b**  **eyond EPA**  **’ s**  **Legal Authority**

Some c omments disagreed that EPA ’ s statement that the nation ’ s waters face increasing stress from anthropogenic influences serves as a basis to revise the antidegradation portion of the WQS regulation. Comments stated that since EPA has publicized the success of the CWA (e.g., http://water.epa.gov/polwaste/wastewater/treatment/wquality_index.cfm ), the need for revisions to the regulation on antidegradation is questionable. EPA disagrees. EPA agrees that there have been many i mprovements in water quality at least partially due to the CWA and implementing regulations

. For example, the document provided by commenters specifically focused on improvements in water quality in discharges from Publicly Owned Treatment Works (POTWs) ba sed on EPA grants from 1970 to 1995, when many facilities added secondary treatment or greater. H owever, the scientific basis for the rule is evident. S ubsequent to large initial improvements following the CWA, water quality problems remain, and some are g etting worse . For example, the CWA did not place requirements on nonpoint source (NPS) pollution, and nutrient pollution (which is often largely from NPS ) presents a major challenge. (For more information on data and information about nutrient pollution, p lease see http://www2.epa.gov/nutrientpollution .)

EPA disagrees with comments arguing that the proposa l would not provide real environmental benefit. See the preamble to the final rule for discussion of environmental benefits of protecting high water quality.

Comment er s argued that states and authorized tribes have made progress and their current antidegradation policies are not ineffective

. Comments suggested that EPA should not create new requirements that would impact functional, successful programs. EPA agree s that some states and authorized tribes have made progress, but progress is not universal, and lists of impaired waters continue to grow. EPA disagrees that a “ one size fits all ” proposal belies current progress and the need for states and authorized tribes to be creative and flexible in establishing implementation methods. The final rule does not require adoption of implementation me thods, and provides considerable discretion in how issues are addressed in those methods. Comments stated that states and authorized tribes should be able to “ test drive ” procedures and policies prior to EPA regulating, but did not provide justification fo r this. As EPA described in the proposal preamble, EPA received substantial feedback from stakeholders that existing CWA antidegradation regulatory provisions and related guidance have not been fully successful in ensuring consistent and effective implemen tation of Tier 2 high quality water protections. States have recognized the limits of national guidance in the area of CWA implementation as well. EPA ’ s view is that states and authorized tribes have already had over 30 years to develop their policies and methods, and regulatory changes are needed to protect water quality.

For responses to comments on the proposed rule containing “ guidance ” (e.g., using the words ‘ could, ’

‘ should, ’ and ‘ may ’ ), See essay 3.a. The final rule language contains words that indic ate requirements (e.g., ‘ shall ’ ) rather than words indicating guidance. The final rule language is what is required of states and authorized tribes. Language in the preamble to the final rule provides additional guidance and interpretation.

Comments questi oned use of the word ‘ ensure ’ in the proposal. As explained in the preamble to t he final rule provision on antidegradation does not contain the word ‘ ensure, ’ but instead retains the word

‘ assure. ’ See response essay 10.a.Chapter 3 – Response Essays 7.m – Antideg – Legal

Comments stated that nothing perm its EPA to dictate the manner in which antidegradation policies will be implemented , and had concerns about EPA usurping states ’ and authorized tribes ’ authority to develop their own implementation methods for regionally specific needs and adding more bure aucracy to the process . The final rule does not dictate the contents of states ’ implementation methods, nor does it require they be adopted and submitted to EPA for 303(c) action.

EPA agrees that federalism principles inherent in the CWA give discretion to states and authorized tribes to manage their own antidegradation programs, however, EPA does have oversight to a certain extent via CWA 303(c). As for ‘ vagueness, ’ EPA ’ s view is that the final rule and preamble provide enough structure that they will not result in confusion and error, and will consider providing additional guidance in the future.

Some c omments objected to the proposed changes in antidegradation because the changes would add administrative and technical complexity, bureaucracy, and cost to an already time

- consuming process

. EPA recognizes that many states and authorized tribes will have to make changes to their regulations to be consistent with the final rule. Undergoing these revisions will increase states ’ and authorized tribes ’ admini strative burden . However, some states and authorized tribes may face no additional burden Since the final rule provides boundaries on Tier 2 analysis of alternatives and the identification of waters for Tier 2 review using a water body

- by

- water body approa ch, EPA recognizes that some states and authorized tribes will face increased amounts of process and cost to implement programs consistent with these requirements. These requirements provide needed boundaries to antidegradation programs, but still allow considerable discretion to states and authorized tribes. For example, they may still use de minimis exclusions from Tier 2 review to help manage their resources. Further, not all of them will face increased process and cost, since some already have antidegra dation policies that are consistent with the requirements. See the economic analysis (EA) for more information.

Comments objected to the proposed changes to the antidegradation provisions because EPA oversight over state and authorized tribal implementatio n methods would prevent states and authorized tribes from applying their antidegradation implementation methods until EPA approves them.

EPA disagrees with comments that the rule has federalism implications, including issues relating to E xecutive O rder 131 32. See the preamble to the final rule for EPA ’ s discussion on Executive Order 13132. The CWA (including the sections of the CWA pertaining to WQS ) are based on a principle of cooperative federalism. The final rule provisions, including the changes made to the rule since proposal, are consistent with the principle of cooperative federalism and are consistent with the CWA. For instance, in the final rule, s ection 131.12(a)(2)(ii ) requires a structured analysis of alternatives, which will increase transparenc y and consistency in states ’ and authorized tribes ’ decisions about high water quality. The new requirement makes the analysis of alternatives an integral part of a state ’ s or authorized tribe ’ s finding that degradation of high quality water is “ necessary. ” Such an analysis provides states and authorized tribes with a basis to make informed and reasoned decisions, assuring that degradation only occurs where truly neces sary

. States and authorized tribes still have discretion to decide the order in which they satisfy these requirements and states and authorized tribes themselves do not need to conduct the analysis or select the alternative. EPA chose not to require identification of the least degrading practicable alternative for implementation to allow states and authorized tribes the flexibility to balance multiple considerations.Chapter 3 – Response Essays 7.m – Antideg – Legal

EPA disagrees with comments stating that that the proposal expan d s antidegradation reviews to include impaired waters and an alternatives analysis , thus greatly expand ing federal co ntrol over land and water use choices that have been under the purview of states and authorized tribes. The final rule, similar to the proposal, does explicitly require analysis of alternatives for Tier 2 reviews, and outlines expectations for identifying waters for Tier 2 protection on a water body

- by

- water body basis. However, it does not require Tier 2 reviews for impaired waters; states and authorized tribes still have the authority to decide for themselves which waters will receive Tier 2 review. Also, the requirement for analysis of alternatives does not mean that the federal government will make decisions about the alternatives. States and authorized tribes still have the authority to make decisions informed by analyses of alternatives. Today ’s rule s trengthens the evaluation used to identify and manage high quality waters and increases the opportunities for the public and stakeholders to be involved in the decision

- making process.

EPA disagrees that the proposed revisions would undermine state and aut horized tribal decision

making. The final rule provides some boundaries on state and authorized tribal antidegradation policies regarding identification of waters for Tier 2 protection and analysis of alternatives in Tier 2 review, but does not take away the authority of states and authorized tribes to conduct Tier 2 reviews and make decisions about authorizing degradation. EPA agrees that the states and authorized tribes, not EPA have the primary responsibility for making decisions about whether to allow d egradation of high quality water through a Tier 2 review. The final rule does not change that, and thus does not undermine state and authorized tribal decision

- making.

EPA disagrees with concerns that the proposed changes to the antidegradation regulation would grant EPA a veto authority to override states ’ and authorized tribes ’ decisions to allow degradation. WQS, including antidegradation, are not directly enforceable. They are implemented through other actions such as NPDES permits. EPA has never had, and will not have under the final rule, enforcement authority over WQS themselves since they are not directly enforceable. However, the CWA expressly gave EPA oversight and enforcement authority in several areas where WQS are implemented, such as NPDES
perm its (33 U.S.C. S ection 1319). This means for example that if a state or authorized tribe with NDPES authority issues an NPDES permit that must derive from and comply with WQS (per 40 CFR Part 122)
, but that permit fails to adequately implement the state ’s or authorized tribe ’ s own antidegradation policy (e.g., appropriately conducting Tier 2 review where applicable), EPA has the authority to exercise its oversight over that permit. This authority was pre

- existing and is not changed by the final rule. EPA
ag rees with comments that EPA must give deference to states ’ and authorized tribes ’ decisions as long as those decisions are consistent with the applicable WQS.

EPA disagrees that including antidegradation implementation methods as elements of WQS needlessly increases federal intrusion in a role expressly delegated to states by the CWA. The final rule does not require states and authorized tribes adopt implementation methods into rule. Some states and authorized tribes choose to incorporate implementation met hods as legally binding provisions that they then submit to EPA for action under CWA 303(c). This is a choice and not a requirement, so there is no increase in federal intrusion. The final rule does not require states to adopt and submit their implementati on methods.

Some c ommenters stated that the preamble to the proposal did not explain the effect of the proposal on existing approved implementation policies. EPA clarifies here that in the future, following the publication of the final rule, states and authorized tribes will need to ensure that their antidegradation policies are consistent with the final rule requirements, and that their implementation methods must likewise comport with the final rule requirements. The preamble to the final rule explains wh at EPAChapter 3 – Response Essays 7.m – Antideg – Legal

expects as far as the timeline for states and authorized tribes to comply. EPA disagrees that the proposed changes would have a chilling effect on future states ’ and authorized tribes ’ efforts to develop improved and innovative policies. Commenters did not provide evidence for this assertion. EPA ’ s view is that the final rule provides ample discretion for states and authorized tribes to innovate and improve.

For information about what constitutes a new or revised WQS over which EPA has CWA 303(c)
aut hority, s ee the “ What is a New or Revised Water Quality Standard Under CWA 303(c)(3)? ” FAQ. ( http://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm )



### E **. W ater**  **Q uality**  **S tandards**  **Include Antidegradation**
Some commenters argued that EPA should amend the statement of purpose for WQS at section 131.2 by adding antidegradation to acknowledge that WQS include antidegradation, and by adding a statement about protecting existing uses to acknowledge existing uses as the absolute floor of water quality. EPA chose not to amend section 131.2 at this time . EPA also chose not to amend the formal definition of WQS at section 131.3(i) by adding antidegradation, to read consistent with section 130.7(b) which describes WQS as “ including...antidegradation requirements. ” EPA did not propose or finalize a revision t o add reference to antidegradation requirements, existing uses or Tier 1 protections, or descriptions to further explain the meaning of designated uses, criteria, and antidegradation requirements in section 131.2, or amend the formal definition of WQS at s ection 131.3(i). EPA concluded the changes were not necessary because the existing regulatory structure already included antidegradation as a core, required component of WQS. Provisions that are already explicit to antidegradation already existed in sectio n 131.12 and section 131.6 (which explains that antidegradation policies consistent with section 131.12 are minimum requirements of WQS submissions). Further, the 303(d) listing regulation at section 130.7(b) corroborates this, stating that:

“ For the purpo ses of listing waters under Section 130.7(b), the term “ water quality standard applicable to such waters ” and “ applicable water quality standards ” refer to those water quality standards established under Section 303 of the Act, including numeric criteria, narrative criteria, waterbody uses and antidegradation requirements .” (That is, the state ’ s antidegradation requirements as approved by EPA under 303(c).) Finally, EPA revised section 131.5(a)(3) to further confirm that states ’ and authorized tribes ’ legal ly binding antidegradation provisions are subject to EPA review and action under 303(c). See further discussion in essay 10.a.