# CHAPTER 3
Issue Category: Administrator’s
Determination

Pages 3- 21 – 3- 32

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 4.a – Admin – Gen Supp



## Essay **4.a – Ad**  **min istrator’s Determination:**  **General S upport** 

**A. General** 

The U.S. Environmental Protection Agency ( EPA ) appreciates and acknowledges the commenters expressing general support for EPA’s proposed change to section 131 .2 2(b ) and comments on a specific

state s and tribes

. EPA appreciates the commenters noting instances and resource implications of stakeholders c onfusing or mistaking EPA communication s for an Administrator’s determination. EPA encourages commenters to review the final rule requirements at section 131 .22(b), as well as the discussion in section II.A in the preamble to the final rule.



### B **. Other**

With regard to the comments related to the partnership set by the Clean Water Act ( CWA ) between states (and authorized tribes) and EPA, see EPA’s response to code 3.a — EPA’s Legal Authority: General
Comments

.
With regard to the commenters suggesting EPA a dd specific, objective criteria to section 131 .22(b) for when the EPA Administrator will make a determination that a new or revised water quality standard ( WQS ) is necessary to meet the requirements of the CWA or other specific suggestions on the proposed regulatory text , see EPA’s response to code 4.c — Administrator’s Determination: Specific Comments.

With regard to the comments questioning whether an Administrator’s determination is a final agency action that can be challenged at issuan ce, see EPA’s resp onse to code 4 .d – Admin istrator’s
D etermination : General Comments

.
With regard to the commenter suggesting that the EPA Administrator should not make an Administrator’s determination that new or revised WQS are necessary to meet the r equirements of the
CW A where an “EPA

- approved state plan” is in place , see EPA’s response in code 4.d — Administrator’s
D etermination : General Comments

.
With regard to comments related to states and authorized tribes maintaining primary responsibility for setting water quality criteria based on site

- specific circumstances, see EPA’s response to code 6g – Tr iennial Reviews: General Comments

.Chapter 3 – Response Essays 4.b – Admin – Gen Opp



## Essay **4.b – Ad**  **min istrator’s Determination:**  **General Opposition** 

**A. Comments**  **R elated**  **to Administrator’s D**  **etermination G**  **eneral O**  **pposition**

The U.S. Environmental Protection Agency ( EPA ) acknowledges the comments noting instances of specific communication from EPA and concerns with specific state water quality standard s ( WQS )

. Some commenters opposed EPA’s proposed change to section 131 .22(b), but provided no further rationale for their o pposition. Some commenters expressed opposition to the proposed change to section 131 .22(b) because it will neither assist the public nor ensure effective implementation of the Clean Water Act ( CWA )

. EPA disagrees. See the final rule requirements at section 131 .22(b), as well as the discussion in
section II.A in the preamble to the final rule.



### B. **Comments R**  **elated to the**  **S cope**  **of A**  **uthority u**  **nder C lean Water Act**  **S ection**  **303(c)(4)(B)**

With regard to the commenters characterizing EPA’s proposed change to section 131.22(b) as narrowing EPA’s interpretation of CWA section 303(c)(4) , EPA disagrees. EPA acknowledges that the CWA provides two different scenarios (CWA section 303(c)(4)(A) and CWA section 303(c)(4)(B)) where the Administrator has the authority to “ promptly prepare and propose ” new or revised WQS for navigable

waters

. EPA’s regulation at section 131 .22(a) implements CWA section 303(c)(4)(A) and EPA’s regulation

at section 131 .22(b) implements CWA section 303(c)(4)(B). The commenter s are confused because this rulemaking is only clarifying the requirement at section 131 .22(b) and their comments fail to recognize that neither the proposed rule nor the final rule contemplated changes to section 131 .22(a), which is the corresponding regu lation for CWA section 303(c)(4)(A). Because of this confusion, commenters incorrectly characterized EPA’s proposed change as narrowing its authority. EPA is not narrowing its authority under CWA section 303(c)(4), rather EPA’s final rule clarifies how Adm inistrator’s determinations pursuant to CWA section 303(c)(4)(B) can be distinguished from routine EPA
communications to states and tribes

. See also EPA’s response related to the confusion between CWA section 303(c)(4)(A) and 303(c)(4)(B) in code 4.c — Adm inistrator’s Determination: Specific Comments

.
With regard to comment er s characterizing EPA’s proposed change to section 131 .22(b) as an attempt by the Agency to evade its duty to promulgate federal WQS for navigable waters, EPA disagrees. EPA’s
intent wit h this change is to minimize the potential for stakeholders to misunderstand EPA’s intent with
its written feedback to sta tes and authorized tribes, and to ensure that the powerful tool of an Administrator’s determination pursuant to CWA section 303(c)(4)(B) is used purposefully and thoughtfully, rather than unintentionally as a result of a misunderstanding. Some commenters questioned whether EPA had ever been forced to promulgate f ederal WQS due to stakeholders or the public misunderstanding routine communications. Other commenters suggested that EPA only rarely had been forced to do such. While EPA has never been forced to promulgate federal WQS due to such a miscommunication, EPA has d evoted significant resources in litigation to defend against stakeholders ’ misunderstandings of routine communication s between EPA and states and authorized tribes, namely in Puerto Rico, Florida, and Washington State

. In order to avoid this kind of confusion and the need to devote EPA’s limited resources to defending against such cases in the future, EPA is finalizing this change to the regulation. See the final rule requirements at section 131 .22(b), as well as the discussion in
section II.A in the preamble to the final rule.Chapter 3 – Response Essays 4.b – Admin – Gen Opp

With regard to the commenters expressing opposition to the proposed change to section 131 .22(b) because it will unnecessarily impose additional obstacles for EPA regional staff who have determined or concluded that a state’s WQS need to be revised, EPA disagrees. With regard to the commenters suggesting that the change to section 131 .22(b) undermines EPA’s trust responsibility to protect tribal treaty

- reserved resources and EPA regional correspondence to state agencies, EPA disagrees. Regard less of the change to section 131 .22(b) in the final rule, neither EPA Regional staff nor EPA H eadquarters staff have the authority to make an Administrator’s determination that new or revised WQS are necessary to mee t the requirements of the CWA. EPA Regi onal and H eadquarters staff may work closely with a state or authorized tribe during the development of WQS and may provide comments on specific elements of existing state and authorized tribal WQS programs. However, only the EPA Administrator, or his or h er duly authorized delegate, has the authority to make an Administrator’s determination that new or revised WQS are necessary to meet the requirements of the CW A, pursuant to CWA section 303(c)(4)(B). Some commenters may have confusion on this point becaus e the EPA Administrator has permanently delegated authority to approve or disapprove WQS under CWA section 303(c)(3) to the EPA Regional Administrators (which authority has been subsequently delegated in certain cases to the EPA Regional Water Division Directors) . This delegation applies only to the authority to approve or disapprove WQS. The EPA Administrator has not permanently delegated the authority to make an Administrator’s determination pursuant to CWA section 303(c)(4)(B), and while there is no p rohibition against such a permanent delegation of CWA section 303(c)(4)(B) authority, historically, the EPA Administrator has delegated this authority in a one

- time, temporary manner (e.g., to the Assistant Administrator for the Office of Water for a limited time for a certain purpose) . Neither the proposed rule nor the final rule affects EPA’s CWA authorities, any related delegations under these CWA sections

, or EPA’s ability and/or process to delegate such authorities. See also EPA’s response related to h ow a delegat ion is made in code 4.d – Administrator’s Determination: General Comments. Finally, EPA acknowledges the commenter who opined that EPA communications with states and authorized tribes will be hampered by the recent Iowa League of Cities v. EPA decision out of the U.S. Court of Appeals for the Eighth Circuit.



### C. **Other**

Some commenters expressed opposition to the proposed change to section 131 .22(b) because it leaves no avenue for the public to compel further action from EPA. EPA disagrees. Neither the proposed rule nor the final rule change the public’s ability to petition EPA, under s ection 553(e) of the Administrative Procedure Act (APA) ( Title 5 of the U nited S tates Code ( U.S.C. ) Section 553(e) ) , to issue, amend, or repeal a rule, which could implicate EPA’s authority to make an Administrator’s determination pursuant to CWA section 303(c)(4)(B) , and possibly to promulgate federal WQS

. Because the APA provides such an avenue, there is no need for EPA to provide another avenue or expand on that ave nue in its WQS regulation.

With regard to the comments related to the partnership set by the CWA between states (and authorized tribes) and EPA, see also EPA’s response to code 3.a — EPA’s Legal Authority: General Comments

.
With regard to the commenters su ggesting that EPA make “ timely ” determinations, see also EPA’s

res ponse to 4.c — Administrator’s D etermination : Specific Comments.

Some commenters noted states that are not conducting triennial reviews to review and revise their WQS and expressed concern that the change to section 131 .22(b) will further allow states to be delinquent in meeting the CWA obligations , including triennial reviews of applicable WQS. EPAChapter 3 – Response Essays 4.b – Admin – Gen Opp

encourages commenters to review the final triennial review rule requirements at sect ion 131 .20(a), as well as the discussion in section II.C in the preamble to the final rule. See also EPA’s response to 4.d — Administrator’s D etermination : General Comments

.
With regard to the comments related to the critical nature of EPA’s oversight authority in CWA section 303(c)(4)(B), see EPA’s response in code 4.e – Administrator’s D etermination : EPA’s Legal Authority

.
Some commenters cited concern with the proposed change to section 131 .22(b) because of “ EPA’s past actions to avoid review or delay de cisions regarding determinations of whether a state must adopt or revise WQS ” and cited the ongoing case of Gulf Restoration Network v. Jackson. This case was decided by the U.S. Court of Appeals for the Fifth Circuit on April 7, 2015, and has since been r emanded to the U.S. District Court for the Eastern District of Louisiana. In the April 7 th decision, the U.S. Court of Appeals for the Fifth Circuit held that (1) EPA’s denial of a rulemaking petition asking EPA to promulgate federal WQS is judicially revi ewable in court, but (2) in denying any such petition, EPA may decline to make a CWA section 303(c)(4)(B) determination with respect to whether the WQS are necessary to meet CWA requirements if EPA provides a reasonable explanation that is grounded in the CWA

. No further details are available on this case at the time of writing this response.Chapter 3 – Response Essays 4.c – Admi n – Specific Comments



## Essay **4.c – Ad**  **min istrator’s Determination:**  **Specific Comments**

**A. General**

The U.S. Environmental Protection Agency ( EPA ) appreciates and acknowledges the commenters expressing general support for EPA’s proposed change to section 131 .2 2(b ). EPA acknowledges the comments noting examples of specific communication from EPA and expressing specific concerns related to certain sta te water quality standards ( WQS )

. See the final rule requirements at section 131 .22(b), as well as the discussion in section II.A in the preamble to the final rule.



### B. **Comments R**  **elated to a**  **P reamble**  **S tatement**  **in the P**  **roposed R**  **ule**

Several commenters expressed concern about the use of the word “ discretion ” in a sentence included in the preamble to the proposed rule. “ Such a determination is made at the Administrator’s discretion after evaluation of all relevant factors. ” (78 Fed. Reg . 54521, September 4, 2013). EPA disagrees that clarification of this preamble sentence needs to be made in the final rule

, and EPA is not obligated to retract or clarify this preamble statement. The use of the word “ discretion ” in the sentence is related to the Administrator’s ability to consider the specific fact

- pattern of a given scenario

. The Clean Water Act ( CWA ) section 303(c)(4)(B) provides the Administrator with authority to promulgate federal WQS “ in any case where the Administrator determines tha t a revised or new standard is necessary to meet the requirements of this Act. ” The word “ discretion ” in the preamble to the proposed rule was not used to indicate that the Administrator could create additional obligations, beyond the CWA

, for a state to m eet, as some commenters suggested. Additionally, use of the word “ discretion ” was not used to indicate that EPA’s approval and disapproval actions, purs uant to CWA section 303(c)(3) , on state a nd authorized tribal WQS are discretionary; EPA must review and approve or disapprove

, revised or new state and authorized tribal WQS, pursuant to CWA section 303(c) and Title 40 of the Code of Federal Regulations ( CFR ) Section 131.21. Further, some commenters suggested that EPA add objective criteria for making an Administrator’s determination per CWA section 303(c)(4)(B). Neither the proposed rule nor the final rule contemplated adding specific criteria or scenarios to the regulation for when the Administrator could, should, would , or must make a determination that new or revised WQS are necessary to meet CWA requirements

. As a result, this issue is outside the scope of this rulemaking. That said, w hen deciding whether a CWA section 30 3(c)(4)(B) determination is warranted for particular navigable waters, the EPA Administrator considers each situation based on its particular facts and circumstances as compared to CWA requirements

. T he Administrator will continue to evaluate all relevant and applicable information related to the CWA requirements when considering whether to make a determinations pursuant to CWA section 303(c)(4)(B). See also EPA’s response in code 4.d — Administrator’s
D etermination : General Comments

.

One commenter included a statement that “ it is not required that all states adopt numeric water quality standards for all identifiable pollutants or even for all pollutants for which EPA has published water quality criteria. ” It is not clear how this statement relates to the co mmenters ’ discussion about the use of the term “ discretion ” in the preamble to the proposed rule ; however, EPA notes that CWA section 303(c)(2)(B) requires states and authorized tribes to “ adopt criteria for all toxic pollutants listed pursuant to section 307(a)(1) of this Act for which criteria for criteria have been published under section 304(a)...as necessary to support such designated uses. Such criteria shall be specific numerical criteria for such toxic pollutants... ” This section of the CWA is implement ed in 40 CFR 131.11.Chapter 3 – Response Essays 4.c – Admi n – Specific Comments



### C. **Comments R**  **elated to**  **C onfusion**  **between the**  **A uthorities**  **under C**  **lean Water Act**  **S ection**  **303(c)(4)(A) and Clean Water Act**  **S ection**  **303(c)(4)(B)**

Some commenters provided comments related to EPA’s duty to promulgate federal WQS after review and disapproval of a state’s or authorized tribe’s new or revised WQS. EPA notes that its authority to promulgate following a disapproval comes from CWA section 303(c)(4)(A). While the proposed rule and final rule include changes to section 131 .22(b) relat ed to the EPA Administrator’s authority to determine that certain revised or new WQS are necessary to meet CWA requirements pursuant to CWA section 303(c)(4)(B), n either the proposed rule nor the final rule contemplated changes to section 131 .22(a), which is the corresponding regulation for CWA section 303(c)(4)(A)

— which is the authority used to promulgate federal WQS following a disapproval, if the state or authorized tribe fails to adopt an approvable WQS on a timely basis after disapproval

. Thus, these comments are outside the scope of this rulemaking. EPA acknowledges that CWA section 303(c)(4) of the Act provides two different scenarios where the Administrator has the authority to “ promptly prepare and propose ” ne w or revised regulations for a navigable waters. Although both section 303(c)(4)(A) and section 303(c)(4)(B) use some form of the word “ determine, ” the determination made pursuant to section 303(c)(4)(A) of the Act is different and distinct from the Administrator’s determination made pursuant to section 303(c)(4)(B) of the Act. EPA notes that CWA section 303(c)(4)(A) provides EPA authority to promptly prepare and publish new or revised WQS for the navigable waters involved where EPA disapproves revised or new WQS , while CWA section 303(c)(4)(B) p rovides EPA authority to promptly prepare and publish new or revised WQS for the navigable waters involved where the Administrator determines that such WQS are necessary to meet CWA requirements (i.e., absent the adoption or submission of a new or revised state or authorized tribal WQS ).



### D. **Comments R**  **elated to**  **T imeframes** 

With regard to the comments requesting that EPA set clear, enforceable timelines for states and authorized tribes to revise or adopt a WQS where EPA has determined there are inadequate or m issing WQS, these issues are outside the scope of this rulemaking. EPA notes that t he CWA and EPA’s implementing regulations include these timelines and neither the proposed rule nor the final rule contemplated making changes to these timelines.

In the cas e of inadequate new or revised WQS, i.e., where EPA disapproves a revised or new WQS,

s ection 3 03(c)(4)(A) of the Act gives EPA the authority to propose and promulgate federal WQS regulations (unless the state or authorized tribe adopts and EPA approves a replacement WQS first)

. In this instance, EPA disapprove s the new or revised WQS and specif ies the changes necessary to meet the
CW A (including regulatory ) requirements. If the state or authorize tribe fails to adopt and submit the necessary revisions within 90 days after notification of the disapproval, the n EPA must promptly propose and promulgate F ederal WQS as specified in CWA section 303(c)(4)(A) and section 131 .22(a) (although EPA can refrain from promulgating if it first approves a replacement WQ S adopted by the

state or authorized tribe)

. The 90

- day timeframe provided for a state or authorized tribe to remedy a disapproval appears in CWA section 303(c)(3) and section 131 .22(a).

I n the case of inadequate WQS that are not new or revised, or in the case of missing WQS that are needed to meet CWA requirements

, CWA s ection 303(c)(4)(B) gives the EPA Administrator the authority to determine, absent the adoption or submission of a new or revised state or authorized tribal WQS, that new or revised WQS are necessary to meet the requirements of the Act. Once the Administrator (or her duly authorized delegated) has determined that new or revised WQS are necessary under CWAChapter 3 – Response Essays 4.c – Admi n – Specific Comments

section 303(c)(4)(B), the EPA must promptly prepare and publish proposed regulations se tting forth new or revised WQS for the navigable waters involved, and must then promulgate such WQS no t later than 90 days after publishing the proposed regulation , unless the state or authorize tribe adopts and the EPA approves such WQS before the EPA promulgation.

With regard to the comments related to the timeframes for EPA to either approve or disapprove new or revised WQS submitted by states and authorized tribes, EPA notes that CWA section 303(c)(3) provides that EPA either approve such WQS within 60 days or disapprove within 90 days of submission. Neither EPA’s proposed rule nor the final rule include s revision to section 131 .2 1, which is where the implementing requirements and timeframes appear in EPA’s regulation. Thus, these comments are outside the scope of this rulemaking , and even if they were within the scope, EPA has no ability to change them

.
With regard to the comments requesting that EPA include a requirement for EPA to respond, within a set timeframe, to any petition from the public requ esting an Administrator’s determination that new or revised WQS are necessary, this issue is outside the scope of this rulemaking. Neither the proposed rule nor the final rule change s the public’s ability to petition EPA, under s ection 553(e) of the Admini strative Procedure Act (APA) ( Title 5 of the U nited S tates Code ( U.S.C. ) Section 553(e) ) , to issue, amend, or repeal a rule, which could implicate EPA’s authority to make an Administrator’s determination pursuant to CWA section 303(c)(4)(B). If any petitio ner thinks that EPA is taking too long to respond to such a petition, that petitioner could sue EPA for unreasonable delay in responding to its petition. Because these mechanisms already exist and are available to members of the public under the APA, EPA d oes not see the need to replicate or expand on them in its WQS regulation

.



### E **. Other**

With regard to the comments related to the partnership set by the CWA between states (and authorized tribes) and EPA, see also EPA’s response to code 3.a — EPA’s Legal Authority: General Comments

.
With regard to the commenters suggesting that EPA was narrowing its authority with the proposed change to section 131 .22(b ) , EPA disagrees. See also EPA’s response to code 4.b — Admin istrator’s
D etermination : General Oppositio n.

With regard to the commenters including discussion on the Gulf Restoration Network v. McCarthy , see EPA’s response in cod e 4.b — Administrator’s D etermination : General Opposition.

With regard to the commenters suggesting that EPA’s rationale for the pro posed change to section 131 .2 2(b) rings hollow, see EPA’s response in code 4.b — Administrator’s Determination: General Opposition.

With regard to the commenters suggesting that the proposed change to section 131 .2 2(b) will further allow states to be delinquent in meeting the CWA obligations, including triennially reviewing WQS, see EPA’s response in codes 4.b — Administrat or’s D etermination : General Opposition and 4.d — Administrator’s Determination: General Comments

.Chapter 3 – Response Essays 4.d – Admin – Other General



## Essay **4 .d**  **– Ad**  **min istrator’s Determination:**  **General Comments** 

**A. Comments**  **Misrepresenting EPA’s Purpose**  **for the Change to Section**  **131.22(b)**

Some commenter s suggested that the U.S. Environmental Protection Agency’s ( EPA’s ) change to section 131 .22(b) is an effort by the Agency to require states and authorized tribes to comply with water quality standards (WQS) recommended in guidance, without completing a formal federal promulgation. EPA notes that this is not the intent of the change in section 131.22(b)

— see the final rule requirements in
section 131 .22(b) and the discussion in section II.A in the preamble to the final rule regarding EPA’s intent in making the change

. EPA encourages commenters to also review the final rule requirements at
section 131 .20(a) related to consideration of new and updated Clean Water Act ( CWA ) section 304(a) criteria recommendations during triennial review , as well as the discussion in section II.C in the preamble to the final rule. The final rule is not intended to affect state and authorized tribal discretion to determine how to establish criteria to satisfy section 131.11(a) pursuant to one of the approa ches outlined in section 131 .11(b): using the CWA section 304(a) criteria guidance, modifying the CWA section 304(a) criteria guidance to reflect site

- specific conditions, or using other scientifically defensible methods. See also EPA’s response to code 6. g – Triennial Review s: General Comments

.
With regard to the commenter stating that “ EPA is not given discretion to determine whether promulgation is ‘appropriate or necessary’ under the CWA..., ” EPA disagrees. Section 303(c)(4) (B) of the
CWA clearly provides such authority to the EPA Administrator to promptly prepare and propose federal WQS —“ in any case where the Administrator determines that a revised or new standard is necessary to meet the requirements of this chapter. ” Although the substantive issue is w hether the state’s or authorized tribe’s WQS meet CWA requirements, it is up to the Administrator to decide when, where, and how to use such authority (i.e., she decides whether it is appropriate to make such a determination that new or revised WQS are nec essary in a given situation). Consistent with Congressional intent in enacting CWA section 303(c)(4)(B) and EPA statements and actions since 1972, EPA greatly prefers that the states and authorized tribes adopt WQS that meet CWA requirements; however, if i t becomes clear that such states or authorized tribes either cannot or will not do so, the Administrator may consider making a determination that new or revised WQS are necessary to meet the requirements of the CWA and promulgating federal WQS for such sta te or tribe. See CWA section 303(c)(4)(B), the preamble to the proposed rule, the preamble to the final rule, the final rule requirements, and the remainder of these responses to comments.

Some commenters suggested that EPA’s proposed change to section 131 .22(b) was an attempt by the Agency to avoid substantive review of its decisions that new or revised WQS are necessary. EPA disagrees. The final rule ensures that the powerful tool of an Administrator’s determination will be used purposefully and thoughtfully, rather than unintentionally due to stakeholder misunderstanding of communication between EPA, states and authorized tribes. One commenter recommended that EPA clearly articulate that Administrator’s determinations that new or revised WQS are necessary to meet the requirements of the CWA are final agency actions that can be challenged at the time of issuance. While this issue is arguably outside the scope of this rule, EPA ’s position has been that “ positive ” Administrator’s determinations , i.e. , determinations that certain revised or new WQS are necessary to meet CWA requirements , become final agency actions when EPA promulgates the final federal WQS rule following such determination (i.e., when the Agency’s decision

- making process has culminate d and legalChapter 3 – Response Essays 4.d – Admin – Other General

consequences actually flow from the determination). Regarding “ negative ” determinations that certain revised or new WQS are necessary to meet CWA requirements (which are less common than “ positive ” determinations) , EPA’s position is that such d eterminations are final agency actions immediately upon
issuance (i.e., because the Agency’s decision

- making process has culminated and legal consequences flow from the negative determination itself). EPA does not agree that it is necessary to articulate t his in rule text, but notes it here in response to comments

.
With regard to commenters suggesting that the proposed change to section 131 .22(b) is an attempt by the Agency to evade its duty or to avoid the need to complete federal promulgations, EPA disagr ees. See EPA’s response in code 4. b – Administrator’s D etermination : General Opposition

.



### B. **Comments Related**  **to Who Has Authority**  **to Make an Administrator’s**  **Determination Pursuant to**  **Clean Water Act Section 303(c)(4)(B)** 

One commenter requested clarification about how the Administrator delegates authority to make an Administrator’s determination pursuant to CWA section 303(c)(4)(B). As described in the preamble to the final rule (see section II.A), in order for other EPA management officials to a ct on behalf of the Administrator, the Administrator must expressly delegate in writing the authority granted by Congress or the Executive Branch. The Administrator may do so by regulation or through the Agency’s official delegation process by signing an official letter that is then maintained as a legal record of authority by EPA’s Human Capital Planning and Policy Division. There is no standing delegation from the Administrator to another EPA management official to make an Administrator’s determination pu rsuant to CWA section 303(c)(4)(B). Therefore, absent promulgating a regulation delegating the authority permanently, for the Administrator to delegate this authorit y, she would need to complete a delegation memorandum to designate another specific EPA management official before that official would have the proper authority to issue an Administrator’s determination

, under CWA section 303(c)(4)(B), regarding whether new or revised WQS are necessary to meet the requirements of the CWA

.



### C. **Comments Related**  **to EPA’s**  **Authority under**  **Clean Water Act Section 303(c)(4)(B)** 

Some commenter s suggested that EPA include, in section 131 .22(b), a requirement for the Administrator to explain the factors upon which a CWA section 303(c)(4)(B) Administrator’s determination can be made. Neither the proposed rule nor the final rule contemplated adding this type of requirement to section 131 .22(b), thus this issue is outside the scope of this rulemaking. However, EPA notes that Administrator’s determination s include a discussion of the factors and rationale leading to the determination regarding whether new or revised WQS are necessary to meet the requirements of the CWA. To view the CWA section 303(c)(4)(B) determinations that EPA has issued, see “ Federal Clean
Water Act Determinat ions that New or Revised Standards Are Necessary ” at http://water.epa.gov/scitech/swguidance/standards/wqsregs.cfm#federal

.
With regard to the commenters suggesting that EPA revise section 131 .22 (b) to instead use its authority under CWA section 303(c)(4)(B) as an Administrator’s triennial review determination of each state’s and authorized tribe’s compliance, EPA disagrees. EP A notes that the CWA does not provide authority to EPA to make determinations of compliance for an entire state or authorized tribe’s triennial review program , but rather authorizes EPA to make Administrator’s determinations regarding whether certain revis ed or new WQS are necessary (which could involve one or multiple WQS, depending on the scenario) . CWA section 303(c)(4)(B) outlines the Agency’s authority to determine that a new or revised WQS isChapter 3 – Response Essays 4.d – Admin – Other General

necessary to meet the A ct and to promptly propose such WQS, unless the state or authorized tribe adopts a new or revised WQS the meets the requirements of the CWA first

.
Some commenters requested clarification about EPA’s recourse where a state or authorized tribe ignores the triennial review requirement, and othe rs urged EPA to use its authority under CWA section 303(c)(4)(B) to promulgate federal WQS for any state or authorized tribe that fails to conduct a triennial review, if such WQS are necessary to meet the requirements of the CWA. EPA notes that CWA section 303(c)(4) give EPA authority to promptly prepare and publish new or revised WQS for the navigable waters involved in the case of inadequate WQS that are not new or revised (i.e., absent the adoption or submission of a new or revised state or authorized tribal WQS) under CWA section 303(c)(4)(B). In response to the commenters, while EPA would not utilize the CWA section 303(c)(4)(B) authority simply because a state or authorized tribe has failed to conduct a triennial review, the EPA Administrator can

use t his authority, after consideration of all relevant factors, to determine that new or revised WQS are necessary and promulgate such federal WQS for the navigable waters involved. In other words, regardless of whether the state or authorized tribe is dutifully conducting timely triennial reviews, the substantive issue is whether the state’s or authorized tribe’s existing WQS meet the requirements of the Act. If they do not, then the EPA Administrator could consider making a determination that new or revised W QS is necessary to meet the Act and promulgating federal WQS to bring such state or authorized tribe into compliance with the substantive requirements of the CWA.

With regard to comments suggesting that the Administrator should not be able to make an Admin istrator’s determination that new or revised WQS are necessary where there is “ an EPA

- approved State plan ” to develop those WQS is in place, EPA disagrees. EPA acknowledges that such work plans can be a valuable tool for communication and transparency regarding states’ and authorized tribes’ WQS development activities, however, EPA also recognizes that states and authorized tribes have many competing priorities and an ever

- growing need to balance their resources. The EPA Administrator may factor a state’s o r authorized tribe’s work plan and progress into her consideration of whether to make a determination that new or revised WQS is necessary to meet the Act (i.e., if such state or authorized tribe had developed such a work plan and was on or ahead of schedule, that may counsel the Administrator against making such determination) , but she still may find , after evaluating all relevant factors, that it is nevertheless appropriate to make an Administrator’s determination that new or revised WQS are necessary to meet the requirements of the CWA.

With regard to the commenters suggesting that EPA is narrowing the application of CWA section 303(c)(4)(B), see EPA’s response in code 4.b – Administrator’s D etermination : General Opposition.

With regard to the commenter suggesting that EPA’s authority under CWA section 303(c)(4)(B) extends to situations where new or revised WQS have been submitted to EPA for review, EPA disagrees. EPA’s authority to review and approve WQS comes from CWA section 303(c)(3) and EPA’s authority to promulgate Federal WQS following disapproval (unless the state or authorized tribe adopts a replacement WQS that meets CWA requirements) comes from CWA section 303(c)(4)(A). See also EP A’s

response in code 4.c – Administrator’s Determination: Specific Comments.



### D. **Other**

With regard to the comments related to the partnership set by the CWA between states (and authorized tribes) and EPA, see also EPA’s response to code 3.a — EPA’s Legal Authority: General Comments

.Chapter 3 – Response Essays 4.d – Admin – Other General

Some commenters requested that EPA establish a clear process , objective criteria, and timeframe for the Administrator to respond to a petition from the public (under section 553(e) of the Administrative Procedures Act) or to i ssue a determination that new or revised WQS are necessary to meet the requirements of the CWA. See EPA’s response to code 4.c – Administrator’s D etermination : Specific
Comments.

With regard to commenters questioning EP A’s use of the term “ discretion ” in the preamble to the proposed rule, see EPA’s response in code 4.c – Administrator’s D etermination : Specific Comments.

With regard to commenter s suggesting that EPA has never been inadvertently forced to promulgate WQS as a result of stakeholders misint erpreting communication between EPA, states and authorized tribes, see EPA’s response in code 4. b – Administrator’s D etermination : General Opposition

.
With regard to the commenter s suggesting that consultation with tribal governments on Administrator’s det erminations and review of such determinations by tribes and the public be allowed, neither the proposed rule nor the final rule contemplated adding such mechanisms to the regulation. Thus, these comments are outside the scope of this rulemaking.

With regar d to the commenter suggesting changes to section 131 .22(c), neither the proposed rule nor the final rule contemplated changes to this section. Thus, this issue is outside the scope of this rulemaking.

Some commenter s reiterated the need for any federal pro mulgation of WQS, following an Administrator’s determination pursuant to CWA section 303(c)(4)(B), to be established only after completing a formal rulemaking process. EPA acknowledges that section 131 .22(c) of the 1983 regulation already subjects EPA to t he same policies, procedures, and public participation requirements established for states and authorized tribes in Title 40 of the Code of Federal Regulations ( CFR ) Part 131 when EPA promulgates federal WQS for such states and authorized tribes. However, neither the proposed rule nor the final rule contemplated changes to this section of the regulation. Thus, this issue is outside the scope of this rulemaking

.Chapter 3 – Response Essays 4.e – Admin – Legal



## Essay **4.e – Ad**  **min istrator’s Determination:**  **EPA’s Legal**  **Authority**

In response to comments related to the critical nature of the U.S. Environmental Protection Agency’s ( EPA’s ) oversight authority under Clean Water Act (CWA) section 303(c)(4)(B), EPA agrees. The preamble to the final rule provides a discussion of this authority and its importance as a powerful tool at section II.A (Administrator’s Determinations that New or Revised WQS are Necessary, What Does Today’s Rule Provide and Why?). See also section I.C (What Environmental Issues Do the Final Changes to the Federal WQS Regulation Address?) in the preamble to final rule.

In response to one commenter’s description that “EPA is to rev iew and approve water quality standards as part of the Triennial Review,” EPA disagrees in that the Agency does not review and approve (or disapprove) a state ’s or authorized tribe ’ s triennial review per se, but instead must review and approve (or disappro ve) any new or revised water quality standard ( WQS ) adopted by the state or authorized tribe

. While EPA does not review and approve (or disapprove) the state’s or authorized tribe’s triennial review in and of itself

, the regulation at Title 40 of the Code of Federal Regulations ( CFR ) Section 131.20(c) require s that if the state or authorized tribe does not result in adoption of new or revised WQS, they must submit the results of the review to EPA within 30 days of completion of the review.