CHAPTER 2 

Issue Category: Other Changes 

Pages 2-1388 – 2-1407

Response to Public Comments

Water Quality Standards Regulatory Revisions

August 2015

40 CFR Part 131

Docket #: EPA-HQ-OW-2010-0606

This document is part of a larger document.
Chapter 2 - Comment Documents Other Changes 

10 - OTHER CHANGES 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

10.A - OTHER CHANGES 

Comment ID 0131-A1.001.009 

Author Name: Rager David 

Organization: Sanitation District Number 1 of Northern Kentucky 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

Comment 2 - The phrase "based on sound scientific rationale" which was added to § 131.5(a)(2) should be removed. 

According to the EPA (78 FR 54537), the phrase "based on sound scientific rationale" was added to improve 

consistency with § 131.11. As such, we request that § 131.5(a)(2) be revised as follows to refer directly to the regulation 

on which it is based: 

"(2) Whether the State has adopted criteria that protect the designated water uses [begin strikeout] based on sound 

scientific rationale [end strikeout] [begin new text] in accordance with § 131.11 [end new text]." 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section B 

Comment ID 0131-A1.001.011 

Author Name: Rager David 

Organization: Sanitation District Number 1 of Northern Kentucky 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

Comment 4 - The replacement of the word "assure" with "ensure" in § 131.12(a)(2) creates an unattainable standard for 

state water quality programs and will create additional discharge requirements for point sources. In the proposed rule, 

EPA states that, "In allowing such degradation or lower water quality, the State shall [begin strikeout] assure [end 

strikeout] [begin new text] ensure [end new text] water quality adequate to protect existing uses fully. Further, the state 

shall [begin strikeout] assure [end strikeout] [begin new text] ensure [end new text] that there shall be achieved the 

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highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and 

reasonable best management practices for nonpoint source control." The word "ensure", by definition, means to "make 

certain" that something will occur, whereas "assure" means "to make confident" that something will occur. By including 

"ensure" in the proposed language, EPA is suggesting that states must guarantee an outcome (i.e., acceptable levels of 

water quality) rather than the actions or framework intended to achieve that outcome. This is an unattainable standard 

for state water quality programs. 

Currently, the ability of regulatory agencies to "ensure" certain water quality outcomes is largely based on the issuance 

and enforcement of point source permits; agencies have limited ability to impose water quality standards and controls 

on nonpoint sources. SD1 is concerned that the proposed language will force regulatory agencies to hold point source 

permittees directly responsible for the implementation of nonpoint source controls through expanded permit conditions 

or compliance approaches. A potential outcome of this change is an expansion of the NPDES permit program to include 

nonpoint source control of given pollutants as the responsibility of permittees. This requirement could also establish a 

precedent for TMDL implementation plans, requiring a broader definition of "reasonable assurance." 

SD1 requests that the word "assure" be replaced with "specify," rather than "ensure". 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section D 

Comment ID 0133-A2.001.005 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

c. Section 131.2 Purpose was revised to specify "designated" without any explanation in the federal register notice. The 

specific inclusion may have unintended consequences with regard to how other sections in 40 CFR, Part 131 are 

interpreted, specifically with regards to criteria development, antidegradation, and use attainability analyses. 

Clarification is needed on the relationship between existing uses and designated uses as they pertain to the entirety of 

Part 131. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section A 

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Comment ID 0133-A2.001.021 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

7. Other 

a. LDEQ requests the removal of the addition of 'designated' from Section 131.2 Purpose. This addition does not clarify 

and makes assumptions that all existing uses are designated uses, and may confound other standards efforts involving 

uses. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section A 

Comment ID 0157-A1.001.006 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

Obligation of States to "Ensure" Water Quality Adequate to Fully Protect Existing Uses 

In 40 CFR 131.12(a)(2), EPA proposed to change the word "assure" to "ensure" with respect to a state's obligation to 

protect existing uses fully in any instance in which a state allows lower water quality to occur in a high quality water 

following antidegradation review. While this appears to be a subtle change, the word "ensure," by definition, means to 

insure or make certain that some event will occur. The word "assure" does not connote that one is guaranteeing an 

outcome, but rather, is informing confidently with a view to removing doubt. While the difference in definition between 

"assure" and "ensure" is slight, it raises the question as to why such a change is being proposed. If a requirement to 

ensure an outcome with respect to authorizing lower water quality following antidegradation review is viewed as 

imposing a higher burden or hurdle, this change could be construed as increasing the level of stringency for allowing 

lowering of water quality by states in conducting antidegradation analyses. Accordingly, the Chamber requests that this 

change not be made to 40 CFR 131.12(a). 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section D 

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Comment ID 0157-A1.001.020 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

Finally, EPA is proposing, without sufficient explanation, to remove the word "necessary" from 40 CFR 131.2. See 78 

Fed. Reg. at 54537. EPA stated this deletion is needed for consistency with 40 CFR 131.11. The purpose of this 

change should be further explained. This change could be construed as authorizing states to adopt unnecessary 

restrictions and criteria. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section A 

Comment ID 0158-A1.001.010 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

1) Purpose: 

KDOW finds the proposed wording changes at §131.2 be unnecessary. 

EPA proposes to change §131.2: 

"A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or 

uses to be made of the water and by setting criteria [begin strikeout] necessary [end strikeout] [begin new text] that [end 

new text] [begin strikeout] to [end strikeout] protect the [begin new text] designated [end new text] uses." 

The proposed wording changes at§131.2 also connote a more prescriptive approach by EPA to States in developing 

their water quality standards, similar to the proposal to replace "assure" in § 131.12(a)(2) with "ensure." States as 

regulators and permitting authorities seek to protect water quality while accommodating all the goals of the Clean Water 

Act; States do not have the ability to serve as guarantors of water quality. 

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Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section A 

Comment ID 0158-A1.001.014 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

The proposed amendments in §131.12(a)(2) are to change "assure" to "ensure" with respect to a state's obligation to 

protect existing uses fully in any instance in which a state allows lower water quality to occur in a high quality water 

following antidegradation review. The word "ensure," means to [begin new text] insure or make certain [end new text] 

that some event will occur. The word "assure" means to [begin new text] inform positively to dispel doubt [end new text] 

, but does not mean that one is guaranteeing an outcome. The proposed change may be subtle, but it is not without 

significance in that it connotes the State as insurer of adequate water quality thereby establishing a standard of review 

that is not attainable: that the State is guaranteeing an outcome. KDOW believes such a change is not necessary or 

prudent. Adding a requirement to [begin new text] ensure an outcome [end new text] with respect to authorizing a 

lowering of water quality following antidegradation review imposes an arguably unattainable standard of review. The 

proposal also imposes an unacceptable burden on States by increasing the level of review and requiring a guarantee 

that allowing lowering of water quality will protect existing uses fully. No State can guarantee such an outcome but a 

State can do its utmost to be reasonably assured of that outcome. KDOW's suggests striking the proposed revision of 

§131.12(a)(2) to change "assure" to "ensure." 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section D 

12.c 

Comment ID 0161-A2.001.002 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

1. Section §131.5(a)(2) states "Whether the State has adopted criteria that protect the designated water uses based on 

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sound scientific rationale." 

• The current rule requires a determination that the criteria "protect the designated water uses". The amendment adds a 

second requirement that the criteria are "based on sound scientific rationale". This phrase adds a layer of subjective 

and undefined criteria that a state would have to meet to have a Water Quality Standard approved by EPA. How does 

this differ from the analysis for protection of the designated water uses? 

• Would a standard which is determined to be fully protective now be unapprovable if the basis for the adoption is 

insufficiently documented? 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section B 

Comment ID 0166-A2.001.010 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

1) Purpose: 

KDOW finds the proposed wording changes at §131.2 be unnecessary. 

EPA proposes to change §131.2: 

"A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or 

uses to be made of the water and by setting criteria [begin strikeout] necessary [end strikeout] [begin new text] that [end 

new text] [begin strikeout] to [end strikeout] protect the [begin new text] designated [end new text] uses." 

The proposed wording changes at§131.2 also connote a more prescriptive approach by EPA to States in developing 

their water quality standards, similar to the proposal to replace "assure" in § 131.12(a)(2) with "ensure." States as 

regulators and permitting authorities seek to protect water quality while accommodating all the goals of the Clean Water 

Act; States do not have the ability to serve as guarantors of water quality. 

Response 

For response to this comment, see the following response essay(s): 

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10.a 

10.a: Section A 

Comment ID 0166-A2.001.014 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

The proposed amendments in §131.12(a)(2) are to change "assure" to "ensure" with respect to a state's obligation to 

protect existing uses fully in any instance in which a state allows lower water quality to occur in a high quality water 

following antidegradation review. The word "ensure," means to [begin new text] insure or make certain [end new text] 

that some event will occur. The word "assure" means to [begin new text] inform positively to dispel doubt [end new text] 

, but does not mean that one is guaranteeing an outcome. The proposed change may be subtle, but it is not without 

significance in that it connotes the State as insurer of adequate water quality thereby establishing a standard of review 

that is not attainable: that the State is guaranteeing an outcome. KDOW believes such a change is not necessary or 

prudent. Adding a requirement to [begin new text] ensure an outcome [end new text] with respect to authorizing a 

lowering of water quality following antidegradation review imposes an arguably unattainable standard of review. The 

proposal also imposes an unacceptable burden on States by increasing the level of review and requiring a guarantee 

that allowing lowering of water quality will protect existing uses fully. No State can guarantee such an outcome but a 

State can do its utmost to be reasonably assured of that outcome. KDOW's suggests striking the proposed revision of 

§131.12(a)(2) to change "assure" to "ensure." 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section D 

12.c 

Comment ID 0168-A1.001.005 

Author Name: Walker Roger 

Organization: Regulatory Environmental Group for Missouri 

3. Part 131 Purpose Section. 

EPA proposes to change the wording of the Purpose Section of §131.2 by replacing the words "necessary to" with the 

word "that", and also add the word "designated." Currently the regulation's first sentence reads in part "... by setting 

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criteria necessary to protect the uses." However, this proposed revision would read, "... by setting criteria that protect 

the designated uses." [emphasis added]. 

While these changes seem minimal, in reality they allow EPA to go far beyond "clarification." This is best illustrated by 

example. EPA under this revision could adopt a pollutant criterion at a level of "zero" and claim it is "protecting the 

designated use," even though in most situations, treatment to "zero" will likely not be necessary to protect the 

designated use. In other words, removal of the words "necessary to" from the Purpose Section of the water quality 

standards regulation would create a situation that allows a criteria to be adopted at an unnecessarily stringent level, 

with minimal scientific justification, and perhaps below any naturally occurring background levels. 

Recommendation: EPA should not remove the words "necessary to" from the Purpose Section of this regulation as 

such language goes well beyond mere clarification. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section A 

3.a 

Comment ID 0172-A2.001.004 

Author Name: Foster Tad 

Organization: Tad S. Foster Attorney at Law on behalf of three small municipal dischargers 

ANTIDEGRADATION: 

At § 131.12(a)(2), it is not clear why "assure" has been struck and "ensure" inserted. By dictionary, both mean to "make 

sure." 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section D 

Comment ID 0175-A1.001.017 

Author Name: Canton Steven 

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Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. 

d. In 131.12(a)(2) the verb "assure" has been changed to "ensure", which suggests that the amount of information 

needed and the burden of proof has been raised. The original verb should be retained. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section D 

Comment ID 0178-A2.001.008 

Author Name: Burnell Barry 

Organization: Idaho Department of Environmental Quality 

It is unclear what change in intent EPA is trying to convey in changing from 'assure' to 'ensure' in section §131.12(a)(2). 

We understand 'assure' and 'ensure' to be synonymous, therefore we ask that you please clarify your intent. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section D 

Comment ID 0188-A2.001.002 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

1. Section §131.5(a)(2) states "Whether the State has adopted criteria that protect the designated water uses based on 

sound scientific rationale." 

• The current rule requires a determination that the criteria "protect the designated water uses". The amendment adds a 

second requirement that the criteria are "based on sound scientific rationale". This phrase adds a layer of subjective 

and undefined criteria that a state would have to meet to have a Water Quality Standard approved by EPA. How does 

this differ from the analysis for protection of the designated water uses? 

• Would a standard which is determined to be fully protective now be unapprovable if the basis for the adoption is 

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insufficiently documented? 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section B 

Comment ID 0190-A1.001.003 

Author Name: Wagener Fritz 

Organization: NA 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

Comments on Proposed Revisions to the Regulation 

131.2: "A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the 

use or uses to be made of the water [begin new text],[end new text] [begin strikeout] and [end strikeout] by setting 

criteria that protect the designated uses [begin new text], and by establishing the antidegradation policy that applies to 

the water body." [end new text] 

This acknowledges that WQS include antidegradation and also that a state's antidegradation policy may serve as "the 

regulatory basis for the establishment of water quality-based treatment controls and strategies beyond the technologybased levels of treatment required by sections 301(b) and 306 of the Act." (Also see discussion of 40 CFR 131.3(i) and 

page 54521 of the preamble below.) 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section A 

7.m 

Comment ID 0190-A1.001.005 

Author Name: Wagener Fritz 

Organization: NA 

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[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

131.5(a)(2): "Whether the State has adopted criteria that protect the designated water uses [begin new text] that are 

supported by a [end new text] [begin strikeout] based-on [end strikeout] sound scientific rationale; ..." 

The current proposal may not permit EPA to approve a water quality criterion adopted by a state in cases where a state 

has proposed and adopted criteria using one rationale, but EPA determines that the criterion is consistent with the Act 

using an alternate "sound scientific" rationale. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section B 

Comment ID 0194-A1.001.004 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

2. Designated Uses (40 CFR § 131.10) 

The proposed revisions to the regulations relating to designated uses and use attainability are of concern to the 

Chamber. 

The first area of concern regards the proposed revision to the "purpose" statement in § 131.2. Such a change would 

essentially remove the states' responsibility or duty to determine what water quality criteria, or the reasonableness of 

suggested criteria, are necessary to protect a water body's uses. Instead, the proposed revision would basically provide 

the EPA with the ability to unilaterally determine, and set, criteria that it believes is necessary to protect the designated 

uses established by the state. Adoption of this revision would not only usurp the states' responsibility and duty to set 

water quality standards, but would likely result in the use of overly stringent or unnecessary criteria in making the 

determination whether a use will be protected. The Chamber strongly disagrees with this proposal. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section A 

3.a 

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Comment ID 0202-A2.001.010 

Author Name: Frederick Kevin 

Organization: Wyoming Department of Environmental Quality/Water Quality Division 

EPA Authority and Minimum Requirements for Water Quality Standards Submission 

The EPA is proposing changes to 131.5(a)(2) to add language specifying that states adopt "criteria that protect the 

designated water uses based on sound scientific rationale." The WDEQ/WQD is concerned that this statement may 

make it more difficult for states to continue to use narrative criteria, as outlined in 131.11, to protect designated uses. 

Wyoming currently uses narrative criteria to protect non-101(a)(2) designated uses and to supplement numeric criteria 

to protect 101(a)(2) uses. Wyoming would like to retain this flexibility and recommends that EPA not include this 

additional language. 

The WDEQ/WQD also recommends that the EPA consider whether there is sufficient consistency between 131.5 (EPA 

authority) and 131.6 (Minimum requirements for water quality standards submission) since both deal with EPA review 

and requirements for water quality standards submissions. For example, 131.5(a)(1) describes that the EPA will review 

"Whether the State has adopted designated water uses which are consistent with the requirements of the Clean Water 

Act" and 131.6(a) describes that States shall submit "Use designations consistent with the provisions of sections 

101(a)(2) and 303(c)(2) of the Act." While this is not a major discrepancy, using consistent language throughout the 

regulation will avoid confusion and misinterpretation across states and EPA regions. 

The WDEQ/WQD is concerned that the EPA's proposed revision to 131.5(a)(2) will decrease the similarity between 

131.5 and 131.6 further. As such, WDEQ/WQD recommends that the EPA ensure that the submission and review 

requirements are consistent in both 131.5 and 131.6 and that these two sections are consistent with the requirements 

described in 131.10, 131.11, 131.12 and 131.13. The EPA may also consider combining 131.5 with 131.6 since some 

of the information in these sections is redundant. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section B 

Comment ID 0205-A1.001.008 

Author Name: Burd Charlie 

Organization: Independent Oil and Gas Association of West Virginia Inc. 

IOGA-WV has similar concerns with the proposed revisions to the "Purpose" statement in 40 C.F.R. § 131.2. 

Specifically, USEPA has proposed to delete the word "necessary" when discussing water quality criteria––that is, to 

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provide that water quality standards must include "criteria that protect designated uses" rather than "criteria necessary 

to protect" such uses. Although seemingly innocuous, this revised language and the elimination of the qualifier 

"necessary" ostensibly could be employed to preclude challenges to water quality criteria that are unnecessarily 

stringent or overprotective. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section A 

Comment ID 0225-A1.001.008 

Author Name: Blackham Leonard 

Organization: Utah Department of Agriculture and Food 

In this section the language is changed to add the word 'protection' in addition the already present word 'propagation'. 

The addition of the word protections heightens the scrutiny and offers a completely new level of protection then has 

been previously seen. It is not necessary to add protection. If you are already propagating species, you are already 

protecting species at a sustainable level. 

Also changed is the word 'assure' to 'ensure'. The change of the wording mandates the states go to a higher level. This 

is not a clarification; it is an increase in standards. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section D 

Comment ID 0240-A2.001.018 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

d. In 131.12(a)(2) the verb "assure" has been changed to "ensure", which suggests that the amount of information 

needed and the burden of proof has been raised. The original verb should be retained. 

Response 

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For response to this comment, see the following response essay(s): 

10.a 

10.a: Section D 

Comment ID 0257-A1.001.008 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

3. Obligation of States to "Ensure" Water Quality Adequate to Fully Protect Existing Uses 

In 40 CFR 131.12(a)(2), EPA proposed to change the word "assure" to "ensure" with respect to a state's obligation to 

protect existing uses fully in any instance in which a state allows lower water quality to occur in a high quality water 

following antidegradation review. While this appears to be a subtle change, the word "ensure," by definition, means to 

insure or make certain that some event will occur. The word "assure" does not connote that one is guaranteeing an 

outcome, but rather, is informing confidently with a view to removing doubt. While the difference in definition between 

"assure" and "ensure" is slight, it raises the question as to why such a change is being proposed. If a requirement to 

ensure an outcome with respect to authorizing lower water quality following antidegradation review is viewed as 

imposing a higher burden or hurdle, this change could be construed as increasing the level of stringency for allowing 

lowering of water quality by states in conducting antidegradation analyses. Accordingly, the Chamber requests that this 

change not be made to 40 CFR 131.12(a). 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section D 

Comment ID 0261-A2.001.004 

Author Name: Bartlett Drew 

Organization: Florida Department of Environmental Protection 

II. Proposed Revisions to § 131.5 (EPA authority). 

While we are strong proponents of using sound science in all of our water quality programs, the proposed addition of 

"based on sound scientific rationale" to the last sentence in subparagraph (a)(2) does not fully capture EPA's 

appropriate review standards. Section 131.11(a) already requires that water quality criteria must be "based on sound 

scientific rationale," which is a very subjective standard that does not belong in a rule intended to increase clarity. Such 

a rule ultimately places the burden of definition on the judicial branch. Among other things, § 131.11(b) further specifies 

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that numeric criteria must be based on 304(a) criteria (as may be modified to reflect site-specific conditions) or other 

scientifically defensible methods. The Department believes that EPA's 303(c) review should incorporate all provisions in 

§ 131.11. As such, the Department suggests that EPA replace "based on sound scientific rationale" with "consistent 

with § 131.11." 

Similarly, the proposed new subparagraph (3) requires EPA to review whether States have adopted an antidegradation 

policy that is "consistent with § 131.12(a)." As a result of the vagueness of §131.12(a) itself, this addition to § 131.5 

does not provide any clarity on what elements a State's antidegradation policy must include to be considered consistent 

with § 131.12(a). 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section B 

10.a: Section C 

7.f.i 

Comment ID 0266-A2.001.007 

Author Name: Reese Thomas 

Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

7. Section 131.2-Purpose of WQSs 

The FWF and the Davises request EPA clarify Section 131.2 by adding the following additional language to the Section 

131.2 statement of WQS purpose. 

"Water quality standards amount to a description of the desired condition of a waterway and consist principally of: (a) 

designated beneficial uses for waters, such as public water supply, recreation, protection and propagation of fish, 

shellfish and wildlife, and navigation; (b) water quality criteria, which define the amounts of pollutants, in either numeric 

or narrative form, that the waters can contain without impairment of their designated beneficial uses; and ( c) 

antidegradation requirements, which are designed to protect and maintain existing uses and waters whose quality 

exceeds that necessary to support designated beneficial uses." 

This language is in the whereas clauses of EPA's December 20, 2010 settlement agreement with the Davises (M.D. 

Fla. Case No. 8:09-cv-1070-EAK). 

Response 

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For response to this comment, see the following response essay(s): 

10.a 

10.a: Section A 

7.m 

Comment ID 0266-A2.001.008 

Author Name: Reese Thomas 

Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

8. Section 131.3( I) 

The FWF and the Davises request EPA amend Section 131.3(I) with the following underlined phrase. 

"Water quality standards are provisions of State or Federal law which consist of a designated use or uses for the waters 

of the United States and water quality criteria of such waters based upon such uses [begin new text] and the 

antidegradation policy of the Act [end new text]. Water quality standards are to protect the public health or welfare, 

enhance the quality of water and serve the purposes of the Act." 

This amendment clarifies Section 131.3(I) to read consistent with EPA's implementing regulations at 40 CFR §130.7(b) 

which states that the term WQSs applicable to the process to identify and list WQLSs refers to WQSs established under 

Section 303 of the CWA, "including numeric criteria, narrative criteria, water body uses, and antidegradation 

requirements." See, 40 CFR 130.7(b)(3). See also, 40 CFR §131.21(d). 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section E 

7.m 

Comment ID 0266-A2.001.016 

Author Name: Reese Thomas 

Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

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7. The FWF and the Davises request EPA amend Section 131.2 to clarify the Section 131.2 by adding the following 

additional language to the Section 131.2 statement of WQS purpose. 

"Water quality standards amount to a description of the desired condition of a waterway and consist principally of: (a) 

designated beneficial uses for waters, such as public water supply, recreation, protection and propagation of fish, 

shellfish and wildlife, and navigation; (b) water quality criteria, which define the amounts of pollutants, in either numeric 

or narrative form, that the waters can contain without impairment of their designated beneficial uses; and ( c) 

antidegradation requirements, which are designed to protect and maintain existing uses and waters whose quality 

exceeds that necessary to support designated beneficial uses." 

This language is in the whereas clauses of EPA's December 20, 2010 settlement agreement with the Davises (M.D. 

Fla. Case No. 8:09-cv-1070-EAK). 

8. The FWF and the Davises request EPA amend Section 131.3(I) with the following underlined phrase. 

"Water quality standards are provisions of State or Federal law which consist of a designated use or uses for the waters 

of the United States and water quality criteria of such waters based upon such uses [begin new text] and the 

antidegradation policy of the Act. [end new text] Water quality standards are to protect the public health or welfare, 

enhance the quality of water and serve the purposes of the Act." 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section A 

7.m 

Comment ID 0268-A2.001.044 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

III. PROPOSED RULE LANGUAGE 

NWEA makes the following suggested changes to the proposed rule language, following the format of the Federal 

Register notice. The language is shown first, in most instances with proposed changes in redline, followed by brief 

comments. These proposes changes are not intended to reflect all of NWEA's comments set out above. 

2. Amend § 131.2 by revising the first sentence to read as follows: 

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A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or 

uses to be made of the water [begin new text] , [end new text] [begin strikeout] and [end strikeout] by setting criteria that 

protect the designated uses [begin new text] , and by protecting and maintaining existing instream water uses [end new 

text] . * * * 

We recommend that EPA include in this purpose statement the Tier 1 protections which, according to EPA, constitute 

the "absolute floor" of water quality required by adding the redlined edits above. 

3. Amend § 131.3 by adding paragraph (m) to read as follows: 

(m) Highest attainable use is the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in 

section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use 

attainability analysis defined in § 131.3(g). 

Defining "highest attainable use" without also using this opportunity to define "highest attainable condition," a concept 

introduced in the new 40 C.F.R. § 131.14, seems to be an odd decision. In addition, this definition is only applicable in 

the context of UAAs, not variances, leaving its use in the context of variances an open question. A definition applicable 

for variances must include protection of existing uses. This rulemaking would also be a good opportunity to clarify the 

meaning of "recreation" to include the use for water contact recreation, fishing, and fish consumption. We suggest EPA 

make corrections to achieve these ends. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section A 

10.a: Section E 

5.e 

7.m 

8.c 

8.g.ii 

Comment ID 0271-A1.001.021 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

22. Spelling mistakes, grammatical errors and/or inconsistencies, and incorrect citations in 40 CFR part 131. The 

Pueblo of Sandia has reviewed the other changes and agrees with the proposed EPA changes. 

Response 

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For response to this comment, see the following response essay(s): 

10.a 

Comment ID 0280-A2.001.008 

Author Name: Aspatore Amanda 

Organization: National Mining Association 

EPA's use of the term "ensure" is also troubling, as it invites litigation over which alternatives the state evaluated, 

whether they are practicable, and the ultimate selection of the alternative. Pursuant to the principles of cooperative 

federalism underlying the CWA, states should be given authority to make these implementation decisions, and EPA 

should refrain from promulgating federal regulations concerning such issues. Rather, EPA must ensure that states have 

sufficient flexibility to implement the provisions of the CWA and accommodate for other laws or programs directly 

regulating industrial activities such as mining. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section D 

3.a 

7.e.ii 

7.e.iii 

Comment ID 0283-A1.001.027 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

[This excerpt contains red-line/strikeout text. Refer to the original document for recommended edits.] 

H. Other Changes 

The other proposed changes are acceptable except that the change proposed in section 131.2 is inconsistent with the 

language of the Act itself. Instead, to be consistent with CWA section 303(c)(2)(A), the language should be "and by 

setting criteria [begin strikeout] necessary to protect the [end strikeout] [begin new text] based upon such [end new text] 

uses" in both section 131.2 and section 131.11. 

Consistent with the other above comments, the last sentence of the current version of 40 C.F.R. §131.20 should be 

removed as these are implementation procedures that require approval under CWA section 303(e), not review and 

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approval as stated. 

Response 

For response to this comment, see the following response essay(s): 

10.a 

10.a: Section A 

10.a: Section E 

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