CHAPTER 3 

Issue Category: Introductory and General 

Information

Pages 3-10 – 3-15

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 2.a – Comment Period 

Essay 2.a – Comment Period

The U.S. Environmental Protection Agency (EPA) agrees and based on commenter request, EPA 

extended the public comment period by 30 days (78 FR 70905, November 27, 2013) in order to provide 

sufficient time and opportunity for all interested parties to perform a thorough review of the proposed 

regulation and provide meaningful public comment to EPA. The original comment deadline was

December 3, 2013 (90 days after the proposed rule was published). The extended comment deadline 

was January 2, 2014 (120 days after the proposed rule was published). 

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Chapter 3 – Response Essays 2.b – Affected Entities

Essay 2.b – Entities Potentially Affected by the Rule

In response to the commenter questioning the need for this rulemaking, the U.S. Environmental 

Protection Agency (EPA) disagrees. See the summary and section I.C (What Environmental Issues Do the 

Final Changes to the Federal WQS Regulation Address?) in the preamble to the final rule. 

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Chapter 3 – Response Essays 2.c – History

Essay 2.c – History of WQS Regulation and Program

A. General

With regard to the comments related to the history of the Water Quality Standards (WQS) regulation 

and program, the preamble to the final rule provides a discussion at section I.B (What is the Statutory 

and Regulatory History of the Federal WQS Regulation?). These comments do not provide information, 

criticism, or suggestions pertaining to any elements contained in the U.S. Environmental Protection 

Agency’s (EPA's) proposed rule. Consequently, they are not considered to be substantive or significant 

comments on the proposed rule itself and, therefore, do not require responses. Additionally, some 

commenters repeat the requirements of the Act or EPA’s WQS implementing regulations at Title 40 of 

the Code of Federal Regulations (CFR) Part 131. These comments are non-substantive except where the 

commenter misquotes or misinterprets the Act or regulation. In such cases, EPA notes and explains its 

disagreement in the subsections below. EPA thanks the commenters who indicated support for the 

proposed changes.

B. 1998 Advance Notice of Proposed Rulemaking

In response to the commenter stating that EPA’s Advance Notice of the 2013 proposed rule dates back 

to 1989, EPA disagrees as EPA’s Advance Notice of Proposed Rulemaking (ANPRM) was published in 

1998 (63 FR 36742, July 7, 1998). Additionally, neither the Water Quality Standards Regulatory 

Clarifications Proposed Rule (78 FR 54517, September 4, 2013) nor today’s Water Quality Standards 

Regulatory Revisions Final Rule is a direct continuation of the 1998 ANPRM. As described in the 

preamble to the proposed rule in section I.B, EPA chose not to move forward with the 1998 ANPRM.

C. National Objective

In response to commenters citing the results of EPA’s February 2013 National Rivers and Streams 

Assessment to demonstrate that the national objective of the Clean Water Act (CWA) has not been 

fulfilled, EPA agrees. Today’s Water Quality Standards Regulatory Revisions Final Rule provides a betterdefined pathway for states and authorized tribes to improve water quality and protect high quality 

waters, ultimately leading to accomplishing the national objective “to restore and maintain the 

chemical, physical, and biological integrity of the Nation’s waters,” and to achieve “wherever attainable, 

an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and 

wildlife and provides for recreation in and on the water” (CWA sections 101(a) and 101(a)(2)).

D. Existing Uses

With regard to the commenters stating that “States and authorized tribes must designated uses, which 

are the uses that existed in 1974 or better if waters have improved, and standards which are protective 

of those uses,” EPA disagrees with this characterization of existing uses. EPA’s regulation at 40 CFR 

131.3(f) defines designated uses as the “uses specified in water quality standards for each water body or 

segment, whether or not they are being attained.” Designated uses are a state’s or authorized tribe’s 

concise statements of its management objectives and expectations for each of the individual surface 

waters under its jurisdiction. In contrast, EPA’s regulation defines existing uses at 40 CFR 131.3(e) as

“those uses actually attained in the water body on or after November 28, 1975, whether or not they are 

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Chapter 3 – Response Essays 2.c – History

included in the water quality standards.” November 28, 1975 is the date EPA promulgated the initial 

Federal WQS regulations related to existing uses (40 FR 55334).

E. Waters of the United States

With regard to the comments related to the terms “waters of the United States,” “navigable water 

bodies,” and “isolated wetlands,” the WQS regulatory rulemaking did not propose or finalize any 

provisions related to the definition or interpretation of these terms. The comments related to these 

terms are outside the scope of today’s rulemaking. EPA acknowledges that the Agency and the Army 

Corps of Engineers have conducted a separate rulemaking to define the scope of waters protected 

under the CWA, in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview Homes, Solid Waste 

Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. United States, and 

suggest the commenter find more information about this rulemaking at: 

http://www2.epa.gov/uswaters. 

F. Clean Water Act Section 303(c)(2)(B) and the National Toxics Rule 

With regard to the comments asserting that EPA purposefully omitted reference and discussion of CWA

section 303(c)(2)(B) from this rulemaking, including the preamble to the proposed rule, this comment is 

likely out of scope as this rulemaking does not address the National Toxics Rule (NTR) federal 

promulgation at 40 CFR section 131.36 nor does it require EPA to update the NTR. Even if the comment 

is within the scope of this rulemaking, EPA disagrees, as EPA’s existing regulation at 40 CFR 131.11(b) is

consistent with CWA section 303(c)(2)(B), in addition to the fact that EPA promulgated the NTR to put in 

place numeric criteria for toxic pollutants where needed in 1992. The commenter has not provided any 

information describing how 40 CFR 131.11(b), or any other requirements in 40 CFR sections 131.1–

131.22, are inconsistent with this section of the CWA. 

With regard to the comments asserting that EPA has not updated the National Toxics Rule (NTR) to 

reflect new or updated CWA section 304(a) recommended criteria or to add new states, this comment is 

out of scope as this rulemaking does not address the NTR federal promulgation nor does it require EPA 

to update the NTR. That said, this rule does include a requirement for states and authorized tribes to 

consider EPA’s new or updated CWA section 304(a) recommended criteria when such states and 

authorized tribes review the WQS that are applicable to their waters during their triennial reviews. Such 

review of applicable WQS includes review of federally promulgated WQS (e.g. federal criteria in the NTR)

where applicable to waters in various states.

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Chapter 3 – Response Essays 2.d – Public Efforts

Essay 2.d – Public Engagement/Consultation/Outreach Efforts

The U.S. Environmental Protection Agency (EPA) acknowledges the comments appreciating the level of 

engagement and public outreach on this rulemaking. EPA agrees that the public listening sessions, tribal 

coordination and consultation efforts, public webinars and public meeting provided EPA an opportunity 

to clarify the intent and purpose of the rulemaking, and to receive valuable input on the contents of the 

proposed rule. All input was considered and informed the relevant sections of the final rule. 

With regard to the commenter suggesting that the state partners have felt as if their voice has been 

relegated to one of stakeholder only, EPA notes that it conducted outreach with state officials and the 

Association of Clean Water Administrators throughout this rulemaking. Such outreach occurred early in 

the process of developing the proposed rule to allow them to provide meaningful and timely input, as 

described in the preamble to the proposed rule. In addition, EPA conducted outreach with states and 

the Association of Clean Water Administrators, at their request, between September 2013 and June 

2014. This outreach allowed EPA to hear states’ views on the proposed regulatory revisions and how 

commenters’ suggested revisions would impact implementation of state water quality standards (WQS) 

programs.

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Chapter 3 – Response Essays 2.e – Overall Rationale

Essay 2.e – Rationale for Proposing Changes to the Regulation

With regard to the general comments questioning the need for this rulemaking and asserting that there 

is no immediate need for this rulemaking, the U.S. Environmental Protection Agency (EPA) disagrees. In 

response to the specific comments that there is no need or rationale to add detailed regulations on 

water quality standards (WQS) variances, EPA disagrees. In regards to both these general and specific 

comments, see the summary section and section I.C (What Environmental Issues Do the Final Changes 

to the Federal WQS Regulation Address?) in the preamble to final rule for EPA’s description of why the 

final regulation is reasonably necessary. 

In response to the commenter asserting that the Clean Water Act (CWA) does not mandate this 

regulation, EPA agrees that the CWA does not explicitly require that the Agency promulgate this precise 

set of requirements, but Congress did authorize EPA to prescribe such regulations as are necessary to 

carry out its functions under the Act at CWA section 501(a), which is exactly what EPA is doing in this 

rulemaking.

With regard to the comments related to the history of the WQS regulation and program, the preamble 

to the final rule provides a discussion at section I.B (What is the Statutory and Regulatory History of the 

Federal WQS Regulation?). See also response essay 2.c.

For comments related to antidegradation generally and antidegradation and CWA section 303(d) listing, 

see response essays 7.g.iii and 7.l.

For comments stating that EPA is overreaching its authority with the revisions in this rulemaking, see

above and also response essay 3.a.

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