# 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 b ased 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 me aningful public comment to EPA. The original comment deadline was December 3, 2013 (90 days after the proposed rule was published) . Th e extended comment deadline

was J anuary 2, 2014 (120 days after the proposed rule was published)

.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

.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 an y 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, so me 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 regula tion. 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 A dvance Notice of the 2013 proposed rule dates ba ck 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 commenter s 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) ha s not been fulfilled, EPA agrees. Today’s Water Quality Standards Regulatory Revisions Final Rule provides a better

defined pathway for states and authorized tribes to improve water quality and protect high quality

waters , ultimately leading to accomplishi ng the national o bjective “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 1 974 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 jurisdictio n. In contrast

, EPA’s regulation define s 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 areChapter 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,” t he WQ S regulatory rulemaking did not propose or finalize any provisions related to the definition or interpretation of these terms. Th e comment s related to these

terms are outside the scope of today’s rulemaking. EPA acknowledges that the Agency and the Army Corps of Engineers have conduct ed 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. River side 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 N ational T oxics R ule (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 disagr ees , 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
info rmation describing how 40 CFR 131.11(b), or any other requirements in 40 CFR sections 131.1

– 131.2 2, 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 c riteria when such states and
authorized tribes review the WQS that are applicable to their waters during their tri ennial 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.Chapter 3 – Response Essays 2.d – Public Efforts



## Essay **2.d – Public E**  **ngagement/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, t ribal coordination and consultation efforts, public webinars and public meeting provided EPA an opportunity to clarify the intent a nd 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 th e 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.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 ( WQ S) variances, EPA disagrees. In regards to both these general and specific
comments, s ee 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 des cription 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 precis e 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 EP A 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 antide gradation generally and antidegradation and CWA section 303(d) listing

, see response essay s 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.