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 – Administrator’s Determination: General Support

A. General

The U.S. Environmental Protection Agency (EPA) appreciates and acknowledges the commenters 

expressing general support for EPA’s proposed change to section 131.22(b) and comments on a specific 

states and tribes. EPA appreciates the commenters noting instances and resource implications of 

stakeholders confusing or mistaking EPA communications 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 add 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 issuance, see EPA’s response to code 4.d – Administrator’s 

Determination: 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 requirements of the 

CWA where an “EPA-approved state plan” is in place, see EPA’s response in code 4.d — Administrator’s 

Determination: 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 – 

Triennial Reviews: General Comments. 

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

Essay 4.b – Administrator’s Determination: General Opposition

A. Comments Related to Administrator’s Determination General Opposition

The U.S. Environmental Protection Agency (EPA) acknowledges the comments noting instances of 

specific communication from EPA and concerns with specific state water quality standards (WQS). Some 

commenters opposed EPA’s proposed change to section 131.22(b), but provided no further rationale for 

their opposition. 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 Related to the Scope of Authority under Clean Water Act 

Section 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 commenters 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 regulation 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 Administrator’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 — Administrator’s Determination: Specific Comments. 

With regard to commenters 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 with this change is to minimize the potential for stakeholders to misunderstand EPA’s intent with 

its written feedback to states 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 federal 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 devoted significant resources in litigation to defend against stakeholders’ 

misunderstandings of routine communications 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.

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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. Regardless 

of the change to section 131.22(b) in the final rule, neither EPA Regional staff nor EPA Headquarters 

staff have the authority to make an Administrator’s determination that new or revised WQS are 

necessary to meet the requirements of the CWA. EPA Regional and Headquarters 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 her 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 CWA, pursuant to CWA section 

303(c)(4)(B). Some commenters may have confusion on this point because 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 prohibition 

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 how a 

delegation 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 section 553(e) of the Administrative 

Procedure Act (APA) (Title 5 of the United States 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 avenue 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 suggesting that EPA make “timely” determinations, see also EPA’s 

response to 4.c — Administrator’s Determination: 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. EPA 

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

encourages commenters to review the final triennial review rule requirements at section 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 Determination: 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 Determination: 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 decisions 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 remanded to the 

U.S. District Court for the Eastern District of Louisiana. In the April 7th 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 reviewable 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.

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Chapter 3 – Response Essays 4.c – Admin – Specific Comments 

Essay 4.c – Administrator’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 131.22(b). EPA acknowledges the 

comments noting examples of specific communication from EPA and expressing specific concerns 

related to certain state 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 Related to a Preamble Statement in the Proposed Rule

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 that 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 meet, 

as some commenters suggested. Additionally, use of the word “discretion” was not used to indicate that 

EPA’s approval and disapproval actions, pursuant to CWA section 303(c)(3), on state and 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, when 

deciding whether a CWA section 303(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. The 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 

Determination: 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 commenters’ 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 implemented in 40 CFR 131.11.

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Chapter 3 – Response Essays 4.c – Admin – Specific Comments 

C. Comments Related to Confusion between the Authorities under Clean Water 

Act Section 303(c)(4)(A) and Clean Water Act Section 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 section131.22(b) related 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), neither 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” new 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) provides 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 Related to Timeframes

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 missing 

WQS, these issues are outside the scope of this rulemaking. EPA notes that the 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 case of inadequate new or revised WQS, i.e., where EPA disapproves a revised or new WQS,

section 303(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 disapproves the new or revised WQS and specifies the changes necessary to meet the 

CWA (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, then EPA must promptly 

propose and promulgate Federal 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 WQS 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).

In 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 section 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 CWA 

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Chapter 3 – Response Essays 4.c – Admin – Specific Comments 

section 303(c)(4)(B), the EPA must promptly prepare and publish proposed regulations setting forth new 

or revised WQS for the navigable waters involved, and must then promulgate such WQS not 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 includes revision to section 131.21, 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 requesting 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 changes the public’s ability to petition EPA, under section 553(e) of the Administrative 

Procedure Act (APA) (Title 5 of the United States 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 petitioner 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 does 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 — Administrator’s 

Determination: General Opposition.

With regard to the commenters including discussion on the Gulf Restoration Network v. McCarthy, see 

EPA’s response in code 4.b — Administrator’s Determination: General Opposition.

With regard to the commenters suggesting that EPA’s rationale for the proposed change to section 

131.22(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 131.22(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 — Administrator’s Determination: General Opposition and 4.d — 

Administrator’s Determination: General Comments. 

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

Essay 4.d – Administrator’s Determination: General Comments

A. Comments Misrepresenting EPA’s Purpose for the Change to Section

131.22(b) 

Some commenters 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 approaches 

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 Reviews: 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 whether 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 necessary 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 it 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 state 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 culminated and legal 

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Chapter 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 determinations 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 this 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 disagrees. See 

EPA’s response in code 4.b – Administrator’s Determination: 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 act 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 pursuant 

to CWA section 303(c)(4)(B). Therefore, absent promulgating a regulation delegating the authority 

permanently, for the Administrator to delegate this authority, 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 commenters 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 determinations 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 Determinations 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. EPA 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 revised 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 is 

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

necessary to meet the Act 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 others 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 this 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 WQS 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 

Administrator’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 or 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 Determination: 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 EPA’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. 

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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 issue 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 Determination: Specific 

Comments.

With regard to commenters questioning EPA’s use of the term “discretion” in the preamble to the 

proposed rule, see EPA’s response in code 4.c – Administrator’s Determination: Specific Comments.

With regard to commenters suggesting that EPA has never been inadvertently forced to promulgate 

WQS as a result of stakeholders misinterpreting communication between EPA, states and authorized 

tribes, see EPA’s response in code 4.b – Administrator’s Determination: General Opposition. 

With regard to the commenters suggesting that consultation with tribal governments on Administrator’s 

determinations 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 regard 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 commenters reiterated the need for any federal promulgation 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 the 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. 

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

Essay 4.e – Administrator’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 review 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 disapprove) 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) requires 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.

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