CHAPTER 2 

Issue Category: Variances 

Pages 2-967 – 2-1309

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 Variances 

8 - VARIANCES 

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

8.A - VAR - GEN SUPP 

Comment ID 0121-A1.001.006 

Author Name: Whirley Gregory 

Organization: Virginia Department of Transportation 

(5) WQS Variances - §131.14 

A section was added (§131.14) to establish regulatory guidelines for WQS variances and WQS variance renewals. The 

regulation is proposing that all variances must include an expiration date and expire no later than 10 years after the 

date the state or tribe adopts the variance. Variances can be renewed but the state or tribe must obtain EPA's approval 

of a renewal and must meet the requirements of §131.14 and provide appropriate documentation of the steps taken to 

meet the requirements of the previous variance. A variance will not be granted if the designated use and criterion 

addressed by the proposed variance can be achieved by implementing technology-based effluent limits required under 

sections 301(b) and 306 of the CWA. 

The Virginia WQS include language addressing thermal variances (9VAC25-260-90), variances to WQS (9VAC25-260-

140.E), and variances due to natural conditions (9VAC25- 260-250). This language would need to be updated to reflect 

the proposed language. The proposed changes would substantially increase the level of effort required to establish a 

WQS variance, as well as lengthen the variance process and make variances more difficult to obtain. However, the 

addition of this language does not appear to cause an undue burden on VDOT. 

Response 

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

8.a 

8.a: Section B 

12.c 

Comment ID 0150-A1.001.013 

Author Name: Heisig-Mitchell Jamie 

Organization: Hampton Roads Sanitation District 

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Water Quality Standards Variances 

The inclusion of new water quality standards variance provisions is appropriate, and will support the long-standing 

practice of variances for proper special circumstances. HRSD has two specific comments. 

Response 

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

8.a 

8.a: Section A 

Comment ID 0153-A2.001.014 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

V. WQS Variances. 

The State Water Board is generally supportive of EPA's proposal to add certain provisions at section 131.14 to specify 

and clarify the scope and applicability of a WQS variance. (78 Fed. Reg. 54544-54545.) Specifically, the State Water 

Board appreciates the acknowledgment of existing authority for states to allow time to make progress toward attaining a 

designated use, particularly in the context of restoration. Below, the State Water Board identifies outstanding issues that 

require clarification and provides recommendations which maintain a state's discretion over a more streamlined 

variance process. 

Response 

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

8.a 

8.a: Section A 

8.a: Section C 

Comment ID 0157-A1.001.014 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

Water Quality Standard Variances -- 40 CFR 131.14 

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The Chamber supports EPA's efforts to expressly recognize the availability of water quality standards variances in 

newly proposed 40 CFR 131.14. EPA has long recognized that states have discretion to grant variances to water quality 

standards where natural, manmade, or economic factors prevent a water quality standard in a waterbody from currently 

being attained. 

Response 

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

8.a 

8.a: Section A 

Comment ID 0158-A1.001.022 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

Variances are not widely used with the exception of some success in certain states. A significant reason for lack of 

widespread use has been the concern that each variance must be adopted as an independent water quality standard. 

This restriction has made the use of variances to water quality standards a cumbersome tool, at best. The WQS 

regulation should allow sufficient flexibility for States to have available a streamlined variance process. 

Response 

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

8.a 

8.a: Section C 

Comment ID 0165-A2.001.013 

Author Name: Gunderson Steven 

Organization: Colorado Department of Public Health and Environment 

12. Variance Provisions - General 

With the exceptions noted below, Colorado supports EPA's efforts to include variance provisions in rule. The provisions 

are generally consistent with past EPA direction and do not represent a change in course. 

Response 

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

8.a 

8.a: Section A 

Comment ID 0166-A2.001.022 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

Variances are not widely used with the exception of some success in certain states. A significant reason for lack of 

widespread use has been the concern that each variance must be adopted as an independent water quality standard. 

This restriction has made the use of variances to water quality standards a cumbersome tool, at best. The WQS 

regulation should allow sufficient flexibility for States to have available a streamlined variance process. 

Response 

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

8.a 

8.a: Section C 

Comment ID 0176-A2.001.013 

Author Name: Lazarus Jay
 

Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM)
 

WQS variances 

DPNM in concept supports EPA's proposed regulatory provisions for variances as described in §131.14. DPNM 

supports scientific-based variance requests and subsequent issuance of the variance. 

Response 

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

8.a 

8.a: Section A 

Comment ID 0181-A2.001.011 

Author Name: Sims Shaun 

08/04/2015 05:01 PM EDT 2-970 
Chapter 2 - Comment Documents Variances 

Organization: Wyoming Association of Conservation Districts 

Page 54531 – F. WQS Variances: 1. Background: In particular, the EPA has found that this WQS tool is underutilized.
 

For example, since tracking WQS variance submittals in 2004, four EPA Regions have never received a WQS variance
 

submittal.
 

COMMENT:
 

WACD supports the contemplation of clarifying variances to increase their applicability in addressing water quality
 

issues. WACD sees that this could be a valuable option in the future to allow for implementation measures to have the
 

necessary time to resolve the issue.
 

Response 

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

8.a 

8.a: Section A 

Comment ID 0184-A2.001.018 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

WESTCAS members are located within states that have been successfully implementing temporary modifications and 

ambient-based criteria for many years. These are two alternatives to variances or permanent use downgrades that were 

recognized in EPA's Advance Notice of Proposed Rulemaking, 63 Fed. Reg. 36742 (July 7, 1998). EPA's current 

proposal does not include clarifications regarding either temporary modifications or ambient-based criteria. We support 

EPA's decision not to include temporary modifications or ambient-based criteria in its proposal, since clarification of 

these regulatory options is not necessary to facilitate their continued use. 

Response 

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

8.a 

8.a: Section D 

Comment ID 0186-A1.001.010 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

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Chapter 2 - Comment Documents Variances 

• API supports the concept of clearer regulations on WQS variances in order to clarify their applicability and encourage 

more states to use them to address situations where water quality criteria cannot be achieved by point source controls 

and effluent limits. 

Response 

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

8.a 

8.a: Section A 

Comment ID 0186-A1.001.026 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

WQS Variances (Section III.F., 78 Fed. Reg. 54531-54536) 

API supports the concept of clearer regulations on WQS variances in order to clarify their applicability and encourage 

more states to use them to address situations where water quality criteria cannot be achieved by point source controls 

and effluent limits. 

As EPA describes in the preamble to the proposed rule, a number of states do not use the existing, available WQS 

variance provisions at 40 CFR 131.13 because of confusion as to their applicability and usefulness (78 Fed. Reg. 

54531). API agrees with EPA's assessment that WQS variances are a valuable tool for allowing continued progress 

towards achieving the CWA Section 101(a)(2) uses while recognizing that there are in some waters with conditions and 

sources that may prevent complete attainment of these goals. Particular examples include nutrient criteria, as described 

by EPA in the preamble, and mercury in fish tissue for which a number states, mostly in the Great Lakes watershed, 

have adopted statewide variances. Typically, if non-point sources represent the majority of the constituent loads that 

result in nonattainment of a WQS, and control of such sources is problematic, WQS variances are an appropriate 

mechanism to assure continued progress while not burdening point source discharges with unachievable water qualitybased effluent limits (WQBELs). 

API believes that a number of surface waters that have been identified as impaired under Section 303(d) of the CWA 

and for which total maximum daily loads (TMDLs) have been scheduled and completed are candidates for variances 

when it is clear that non-point sources are responsible for the majority of the pollutant loads causing the impairment. In 

addition to nutrients and mercury, non-point sources such as the use of road salt for deicing may increase seasonal 

chloride and TDS concentrations in surface waters to levels that exceed the applicable numeric criteria and given that 

there are currently no satisfactory, cost-effective substitutes for the use of salt as a safety measure during winter icing 

conditions, WQS variances may be the only mechanism a state can use to avoid establishing unattainable WQBELs in 

the permits of point sources of these salts. 

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Response 

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

8.a 

8.a: Section A 

Comment ID 0211-A1.001.008 

Author Name: Lane David 

Organization: Minnesota Environmental Science and Economic Review Board 

C. Comments Pertaining to EPA's Proposal for Variances 

MESERB appreciates EPA's efforts to provide clarity with regard to variances. It is helpful to the regulated community 

that EPA clarifies that variances, especially for multiple dischargers were applicable, are an appropriate means for 

addressing the feasibility of achieving applicable water quality-based effluent limits (WQBELS). [FN9] 

[FN9] 78 Federal Register at 54532. 

Response 

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

8.a 

8.a: Section A 

8.a: Section C 

Comment ID 0212-A1.001.005 

Author Name: Norton Kelly 

Organization: Arizona Mining Association 

Proposed variance procedure (proposed § 131.14): For the most part, EPA's proposed provision on variances is not 

inconsistent with Arizona's existing variance provision (A.A.C. R18-11-122). EPA's proposal would allow greater 

flexibility than does Arizona's current provision in several respects, including duration of the variance (up to 10 years 

versus the maximum 5 years currently allowed by Arizona) and the potential for a variance to be issued to multiple 

dischargers or for a waterbody segment (not currently recognized in the Arizona rules). 

Because the EPA proposal has the potential to offer significant additional flexibility in the consideration of variances by 

states, the AMA is generally supportive of the proposal. However, the AMA has the following suggestions on possible 

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changes to the proposed rule language: 

Response 

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

8.a 

8.a: Section A 

8.a: Section B 

8.g.iii 

Comment ID 0219-A1.001.012 

Author Name: McNelly Jeff 

Organization: ARIPPA 

5. Water Quality Standards (WQS) Variances 

The EPA has encouraged States and Tribes to utilize WQS variances (hereafter referred to as "variances"), where 

appropriate, as an important WQS tool that provides States and Tribes time to make progress towards attaining a 

designated use and criteria. The EPA has offered input and support for variances through the Office of General Counsel 

legal decisions, guidance, memoranda, and approval actions for many years. 

In particular, the EPA has found that this WQS tool is underutilized. For example, since tracking WQS variance 

submittals in 2004, four EPA Regions have never received a WQS variance submittal. 

The States-Tribes are in the best position as they are clearly the most knowledgeable authority to determine which 

actions are appropriate and how variances should be implemented given the totality of the local circumstances including 

diversity in terrain (geology and topography), climate, biologic, chemical, and other physical conditions that impact on 

water quality. 

We support the need for a WQS Variances program that is responsive to ensuring that in the long-term water quality 

criteria is met. 

Response 

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

8.a 

8.a: Section A 

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Comment ID 0230-A1.001.020 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

Variances 

Scope and definition (78 FR at 54532)
 

The current regulations barely mention variances. The new proposed regulations have provisions that may facilitate
 

states granting variances while giving direction as to how variances may be used properly. We believe that the variance
 

proposals are generally reasonable in concept but should be improved as to their wording and limits.
 

Response 

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

8.a 

8.a: Section A 

Comment ID 0237-A2.001.008 

Author Name: Tucker James 

Organization: Idaho Power Company 

5. EPA's proposed revision to the variance regulation for the most part makes sense because use designations may not 

be immediately achievable and EPA should allow states the flexibility to work with dischargers in investigating pollution 

issues and determining the best methods to achieve compliance, including variances. This is an example of where 

states have the advantage of understanding regional water quality situations and should be allowed to exercise their 

expertise. This determination should be left to the states and tribes, with EPA's role limited to one of review only, as it is 

with other water quality revisions. 

Response 

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

8.a 

8.a: Section A 

8.a: Section B 

8.f.i 

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Comment ID 0251-A2.001.012 

Author Name: Wigal Jennifer 

Organization: Oregon Department of Environmental Quality 

III) Comment regarding Variances (40 CFR §131.14) 

General Comment 

Generally, Oregon DEQ supports EPA's proposed variance rule. As more states approve variances, it is important that 

some level of consistency is applied across the country. Although a number of EPA policy memos in regards to 

variances have been developed over time and have provided interim guidance, the lack of clear regulations have 

created confusion amongst states and stakeholders, and in some cases, concern about the legality of variances. DEQ 

offers the following specific comments that EPA should incorporate into its final rule to ensure final rules are clear and 

implementable by states. 

Response 

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

8.a 

8.a: Section A 

8.a: Section C 

Comment ID 0264-A2.001.016 

Author Name: Chard-McClary Shellie 

Organization: Association of Clean Water Administrators 

III. Water Quality Standards Variances 

ACWA supports the proposed regulatory text addressing the issue of variances, as long as the regulation allows 

sufficient flexibility to have a streamlined variance process. Variances, though not widely used nationally, have been 

used with some success in certain states. A significant reason for lack of widespread use has been the concern that 

each variance must be adopted as an independent WQS. That perceived restriction made the use of variances 

unattractive in states that have protracted WQS approval processes. However, there are now examples of processes 

that are streamlined and allow for the adoption of a variance for a "class" or type of facility or pollutant. The streamlined 

process is attractive to a growing number of states as WQS become more complex and stringent. 

Response 

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

8.a 

8.a: Section A 

8.a: Section C 

8.f.i 

Comment ID 0278-A2.001.020 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

WQS Variances 

NACWA strongly supports EPA's clarifications regarding when and how water quality variances may be used. 

Response 

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

8.a 

8.a: Section A 

8.B - VAR - GEN OPP 

Comment ID 0119-A1.001.013 

Author Name: Lemke Lee 

Organization: Georgia Mining Association 

As described previously, GMA supports EPA's efforts to clarify the availability of these provisions where the action can 

fairly be called a clarification. Again, however, GMA strongly opposes codifying new regulatory requirements, 

particularly those that effectively federalize state and tribal authority in the name of "clarification". 

Response 

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

8.b 

8.b: Section C 

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Comment ID 0130-A1.001.003 

Author Name: Schregardus Donald
 

Organization: Department of Defense, Office of the Assistant Secretary (Energy, Installations and Environment)
 

We have identified two issues with the variance process. The enclosed comments provide our detailed concerns and 

recommendations. 

Response 

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

8.b 

8.b: Section A 

Comment ID 0131-A1.001.017 

Author Name: Rager David 

Organization: Sanitation District Number 1 of Northern Kentucky 

SD1 respectfully requests that EPA remove § 131.14 from the proposed regulations. 

Response 

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

8.b 

8.b: Section A 

Comment ID 0135-A1.001.002 

Author Name: Hofmann John 

Organization: Brazos River Authority 

As written, variance provisions would to limit a State's ability to adopt temporary variances when a designated use or 

WQS are in question. The heavy reliance on presumed standards for unclassified, small streams had often resulted in 

the application of aquatic life uses and recreational uses above what the small stream can realistically support. It's 

important to note that temporary variances are useful tools either when scientific information indicates that development 

of a site-specific standard is needed (rather than reliance on a presumed standard) or that an amendment to an existing 

site-specific standard may be justified. The use of temporary variances allows time to perform use attainability analyses 

to determine the most appropriate and protective uses and site-specific WQSs for an individual waterbody. Once site08/04/2015 05:01 PM EDT 2-978 
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specific standards are developed, revised or verified, the regulating agency can then determine the appropriate water 

quality based effluent limits (WQBEL) to protect the waterbody. This process provides clarity and certainty for state 

regulators, WWTFs and the public that the WQBELs are scientifically-based and will be protective of the water quality. 

Additionally, temporary variances allow time for both state regulators and WWTF operators to assess and determine the 

best way to be compliant with new or changing WQSs. 

Response 

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

8.b 

8.b: Section B 

Comment ID 0149-A2.001.002 

Author Name: Michael Gene 

Organization: City of Pueblo Wastewater Department 

1. Variances. 

Pueblo appreciates the EPA's intent to reduce barriers to states' use of variances as an alternative to permanent use 

downgrades. Variances can be a useful tool to provide states with flexibility to implement the Clean Water Act while 

promoting water quality improvement. However, the promulgation of a rule may unintentionally limit the ability of states 

to use variances. Several states, including the State of Colorado, have recently developed variance guidance, which 

could be called into question or limited by the Proposed Rule. It is unclear what basis EPA has for the conclusion that 

the lack of a rule has hindered states' use of variances, since there was no information presented in the Proposed Rule 

preamble about the number of variances that have been approved, the locations, or the bases for their approval. 

Therefore, instead of promulgating a rule, Pueblo believes that the EPA should consider providing guidance on the use 

of variances to preserve flexibility for states to address site-specific issues. 

Pueblo also has several comments on the specific language included in in the Proposed Rule regarding variances. 

Response 

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

8.b 

8.b: Section B 

Comment ID 0158-A1.001.020 

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Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

4) Water quality standard variances 

KDOW supports EPA's efforts to recognize the availability of water quality standard variances in the proposed §131.14. 

EPA has long recognized that states have the discretion to grant variances to water quality standards. However, 40 

CFR §131.13 properly requires only that state variance policies are subject to EPA review and approval. Once a State's 

variance policy in the State's water quality standards is approved by EPA States have the discretion to issue variances 

as appropriate and consistent with that approved policy. KDOW is concerned that the proposed WQS regulation at 

§131.14 would expand EPA's authority beyond approving a States' variance policy in its water quality standards to 

approving how a States' variance policy is implemented, generally and specifically. The newly-proposed §131.14 

appears to seek control of State implementation of variance policies and to make such implementation virtually 

impossible due to a labyrinthine series of demonstrations, documentation, and justifications. These requirements are 

not authorized by the Act and would usurp States' implementation authority. Variances are a matter of State discretion; 

EPA is also wrong in its effort to create a mandate for individual variances to be approved by EPA in advance for 

permit-specific variances. In accordance with State/EPA MOAs, the NPDES permitting process allows EPA appropriate 

opportunity to review and object to any permit which includes a water quality standard variance if EPA believes such 

variance is not consistent with a State's approved variance policy. 

Response 

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

8.b 

8.b: Section C 

Comment ID 0166-A2.001.020 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

4) Water quality standard variances 

KDOW supports EPA's efforts to recognize the availability of water quality standard variances in the proposed §131.14. 

EPA has long recognized that states have the discretion to grant variances to water quality standards. However, 40 

CFR §131.13 properly requires only that state variance policies are subject to EPA review and approval. Once a State's 

variance policy in the State's water quality standards is approved by EPA States have the discretion to issue variances 

as appropriate and consistent with that approved policy. KDOW is concerned that the proposed WQS regulation at 

§131.14 would expand EPA's authority beyond approving a States' variance policy in its water quality standards to 

approving how a States' variance policy is implemented, generally and specifically. The newly-proposed §131.14 

appears to seek control of State implementation of variance policies and to make such implementation virtually 

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impossible due to a labyrinthine series of demonstrations, documentation, and justifications. These requirements are 

not authorized by the Act and would usurp States' implementation authority. Variances are a matter of State discretion; 

EPA is also wrong in its effort to create a mandate for individual variances to be approved by EPA in advance for 

permit-specific variances. In accordance with State/EPA MOAs, the NPDES permitting process allows EPA appropriate 

opportunity to review and object to any permit which includes a water quality standard variance if EPA believes such 

variance is not consistent with a State's approved variance policy. 

Response 

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

8.b 

8.b: Section C 

Comment ID 0168-A1.001.009 

Author Name: Walker Roger 

Organization: Regulatory Environmental Group for Missouri 

7. Variances. 

We appreciate EPA's recognition of the value of variances, but we strongly oppose the codification of these new 

proposed requirements as a "clarification." Moreover, locking too much detail into this rule precludes State and Tribe 

innovation and flexibility. Variances by nature are unique applications to site specific conditions and have historically 

been codified into the both state and tribal regulatory processes. 

Recommendation: The proposed requirement to adopt new variance language should not be incorporated into the Final 

Rule. 

Response 

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

8.b 

8.b: Section B 

Comment ID 0171-A2.001.014 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

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EPA offers no explanation as to this dramatic change in policy regarding variances. As with the proposed amendments 

to EPA's regulations addressing designated use changes and antidegradation, the deficiency to be corrected is neither 

apparent nor clearly articulated by EPA. 

The proposed amendment cannot rationally be said to encourage the use of variances. To the contrary, detailed 

variance procedures and limitations on the use of variances are mandated by rule, including a process that EPA 

concedes is tantamount to use attainability analysis. [FN8] 

[FN8] 78 Fed. Reg. 54534 

Response 

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

8.b 

8.b: Section A 

8.b: Section B 

Comment ID 0173-A1.001.014 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

EPA offers no explanation as to this dramatic change in policy regarding variances. As with the proposed amendments 

to EPA's regulations addressing designated use changes and antidegradation, the deficiency to be corrected is neither 

apparent nor clearly articulated by EPA. 

The proposed amendment cannot rationally be said to encourage the use of variances. To the contrary, detailed 

variance procedures and limitations on the use of variances are mandated by rule, including a process that EPA 

concedes is tantamount to use attainability analysis. [FN8] 

[FN8] 78 Fed. Reg. 54534 

Response 

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

8.b 

8.b: Section A 

8.b: Section B 

Comment ID 0174-A2.001.004 

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Author Name: Peoples Zachary 

Organization: Dallas Water Utilities 

Variances to the Water Quality Standards 

The City of Dallas is concerned that the revisions contained in the proposed rule relating to variances will needlessly 

complicate and render Texas' current variance procedure to be ineffective. The Texas procedure for variances currently 

addresses the concerns the EPA is trying to concentrate on in this rulemaking. In Texas, variances to a water quality 

standard are temporary in nature, in accordance with water quality regulations. A temporary variance to a water quality 

standard can only be granted when scientific information indicates an adjustment to the standard is justified. Generally, 

this means that the person seeking the variance must first provide some level of justification for the variance. The City 

of Dallas believes that existing Texas regulations adequately and fairly address the variance process for Water Quality 

Standards. 

We suggest revisions to 40 CFR Part 131.20 (a) to reflect that any re-examination of water quality standards by a State 

in light of new or updated Clean Water Act (CWA) Section 304 (a) criteria should consider the appropriate adaptation of 

recommendations based on the relevant ecological, physical, and hydrological characteristics of the water(s) subject to 

the criteria, to assure that the designated uses continue to be protected. 

Response 

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

8.b 

8.b: Section B 

6.e 

6.f 

6.g 

Comment ID 0180-A2.001.018 

Author Name: Hobson Chris 

Organization: Southern Company 

However, we believe further revisions are needed in order to ensure that variances are available for use where 

appropriate and not hindered by unnecessary or inappropriate federal requirements. 

Response 

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

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8.b 

8.b: Section A 

Comment ID 0184-A2.001.016 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

Comment 6: Variances 

EPA's proposed rule requires in Section 131.14(b)(1)(ii)(B) that a variance must specify "[a]n interim numeric effluent 

condition that reflects the highest attainable condition." We appreciate the EPA's intent to reduce barriers to states' use 

of variances as an alternative to permanent use downgrades. However, we are concerned that the promulgation of a 

rule may unintentionally limit the ability of states to use variances. Several states have recently developed variance 

guidance, which could be called into question or limited by EPA's proposed rule. Therefore, instead of promulgating a 

rule, we believe the EPA should provide guidance on the use of variances to preserve flexibility for states to address 

site-specific issues. 

Response 

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

8.b 

8.b: Section B 

Comment ID 0193-A2.001.008 

Author Name: Biggs Barbara 

Organization: Metro Wastewater Reclamation District 

V. Water Quality Standards Variances 

Overall Variance Provisions – § 131.14: The state of Colorado recently adopted discharger-specific variance regulatory 

provisions, along with associated guidance. In certain circumstances, a discharger-specific variance may be an 

appropriate temporary water quality tool, especially in circumstances where it is evident that underlying uses and 

associated standards may be attainable through reasonable point and nonpoint source controls over time. 

This is a good example of how an individual state has utilized existing Clean Water Act statutory and its own regulatory 

authority to move forward to implement variance provisions. As such, we believe that variance adoption and 

implementation should be left to the states since they are in a better position to address specific concerns and needs. 

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Response 

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

8.b 

8.b: Section A 

8.b: Section B 

Comment ID 0194-A1.001.014 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

5. Variances (40 CFR § 131.14) 

As with several of the other proposed new and amended regulatory provisions addressed above, we question the need 

for this new regulation that describes what a water quality standard (WQS) variance is and specifies new, mandatory 

elements for obtaining one. Though EPA states that one of the purposes of the proposed new rule is to provide "more 

specificity and clearer requirements" and thereby encourage a greater use of the variance procedure in appropriate 

circumstances, we are concerned that this proposed rule will not serve that intended goal. 

EPA was able to summarize its "established position" on what comprises a variance in the preamble to this proposed 

rule, and as EPA noted, more details regarding what the agency views as the essential elements for a state variance 

rule can be discerned through review of recently-approved variance rules (such as those for Kansas, Puerto Rico and 

the Great Lakes System). Given this, and the numerous other guidance and policy documents available to the states 

and regulated entities, there is good reason to question whether there is any need to finalize this proposed new 

regulation. 

Response 

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

8.b 

8.b: Section A 

8.b: Section B 

Comment ID 0194-A1.001.021 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

08/04/2015 05:01 PM EDT 2-985 
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Overall, we believe these proposed changes are ill-defined and seem ultimately unnecessary in light of the existing, 

demanding requirements for obtaining a WQS variance as set forth in 40 C.F.R. 131.10(g), delegated state programs 

and implementing policies. If there was some history of EPA granting significant numbers of WQS variances or 

approving of proposed variances granted by state agencies, then there might be some basis for suggesting that such 

new, additional rules are needed to ensure that the issuance of variances remains consistent with the purposes of the 

Clean Water Act. As there is no such history, we believe there is no reasonable basis for this proposed new regulation 

and urge the EPA to omit it from the final rule. 

Response 

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

8.b 

8.b: Section A 

Comment ID 0198-A1.001.003 

Author Name: Card Bethany 

Organization: Massachusetts Department of Environmental Protection 

MassDEP has significant concerns, however, with the proposed language regarding variances and does not agree that 

it would achieve the intended objectives. MassDEP has comments on other issues as well. 

Response 

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

8.b 

8.b: Section A 

Comment ID 0198-A1.001.013 

Author Name: Card Bethany 

Organization: Massachusetts Department of Environmental Protection 

MassDEP finds the variance revisions to be the most problematic. Overall, the regulatory and administrative burden 

presented by the new process would add significantly to the already cumbersome requirements. More importantly, the 

variance duration limitation, along with the general lack of flexibility inherent in the new rule, could potentially impede, if 

not derail, significant ongoing progress under existing variances. Refinements to the sections on variances, instead, 

should provide needed flexibility to regulated entities facing very costly upgrades for wastewater and drinking water 

systems as they work toward achieving water quality improvements. Adaptive management approaches that allow 

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adequate time to achieve compliance, and incremental improvements through cost effective treatment and new 

practices, should not be precluded by the regulatory changes. 

Response 

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

8.b 

8.b: Section B 

8.l 

Comment ID 0199-A1.001.015 

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 

5) Variances 

EPA is proposing to add WQS variance provisions to 40 CFR § 131.14 in order to address "confusion, inconsistency, 

and mixed interpretations about how, when, and where [WQS] variances may be used appropriately." [FN10] EPA has 

also determined that WQS variances are "underutilized" and wants to encourage further use of the variances. EPA 

proposes to add provisions relating to the applicability of variances, submission requirements for variances, and 

information on renewing a variance. 

Variances allow temporary deviation from water quality standards and Clean Water Act obligations. Although 

establishing federal regulations for variance procedures may promote clarity and consistency among the states, as a 

general matter variances should not be used to avoid addressing water quality problems and meeting CWA 

requirements. 

[FN10] Id. at 54,531. 

Response 

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

8.b 

8.b: Section A 

8.b: Section D 

Comment ID 0205-A1.001.013 

Author Name: Burd Charlie 

08/04/2015 05:01 PM EDT 2-987 
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Organization: Independent Oil and Gas Association of West Virginia Inc. 

E. Water Quality Standards Variances 

USEPA has proposed to add a new subsection to its regulation, 40 C.F.R. § 131.14, which sets forth regulatory 

guidelines for the issuance and renewal of water quality standards variances. Once again, IOGA-WV questions the 

necessity of these new provisions, particularly given the statements in the Preamble to the Proposed Rule and other 

guidance and policy documents that address variances, as well as the existing requirements under 40 C.F.R. § 

131.10(g). Moreover, the case-by-case nature of variances weighs against the codification of a sweeping regulatory 

approach that only constrains state flexibility to address site-specific needs. The proposed changes also would 

significantly "federalize" the variance process and incorporate substantial new burdens on already strained state 

resources. Accordingly, IOGA-WV urges USEPA to reconsider the need for this "clarification." 

Response 

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

8.b 

8.b: Section A 

8.b: Section B 

8.b: Section C 

Comment ID 0206-A1.001.015 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

V. Variances (78 Fed. Reg. 54,532) 

EPA currently allows for variances from water quality standards, but variances are only referenced in 40 C.F.R. §131.13 

as an option for states to utilize in their standards. This section currently provides that "[s]tates may, at their discretion, 

include in their State standards, policies generally affecting their application and implementation, such as mixing zones, 

low flows and variances. Such policies are subject to EPA review and approval." 40 C.F.R. §131.13. Since 1977, EPA 

has officially allowed variances as long as they are "adopted consistent with the substantive and procedural 

requirements for permanently downgrading a designated use," i.e. based on the factors in 40 C.F.R. §131.10(g). 78 

Federal Register 54,531. EPA defined a variance as "the practice of temporarily downgrading the WQS as it applies to 

a specific discharger rather than permanently downgrading an entire water body or waterbody segment(s)." 78 Federal 

Register 54,531. Under existing variance guidance, a "discharger who is given a variance for one particular constituent 

is required to meet the applicable criteria for all other constituents. The variance is given for a limited time period and 

the discharger must either meet the WQS upon the expiration of this time period or the state or tribe must adopt a new 

variance or re-justify the current variance subject to EPA review and approval." 78 Federal Register 54,531. 

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In the past, according to the Water Quality Standard Handbook,[FN10] EPA approved variances so long as: 

• Each individual variance is included as part of the water quality standard; 

• The State demonstrates that meeting the standard is unattainable based on one or more of the grounds outlined in 40 

CFR 131.10(g) for removing a designated use; 

• The justification submitted by the State includes documentation that treatment more advanced than that required by 

sections 303(c)(2)(A) and (B) has been carefully considered, and that alternative effluent control strategies have been 

evaluated; 

• The more stringent State criterion is maintained and is binding upon all other dischargers on the stream or stream 

segment; 

• The discharger who is given a variance for one particular constituent is required to meet the applicable criteria for 

other constituents; 

• The variance is granted for a specific period of time and must be rejustified upon expiration but at least every 3 years 

(Note: the 3-year limit is derived from the triennial review requirements of section 303(c) of the Act.); 

• The discharger either must meet the standard upon the expiration of this time period or must make a new 

demonstration of "unattainability"; 

• Reasonable progress is being made toward meeting the standards; and 

• The variance was subjected to public notice, opportunity for comment, and public hearing. (See section 303(c)(l) and 

40 CFR 131.20.) The public notice should contain a clear description of the impact of the variance upon achieving water 

quality standards in the affected stream segment. 

Under the Proposed Rule, EPA is altering the long-standing requirement for the issuance of variances on the grounds 

that the new requirements "are tailored to better fit the circumstances where variances will allow for environmental 

progress toward achieving the goals of the CWA." 78 Federal Register 54,532. 

Waterkeepers are concerned that these new provisions will increase the use of variances to avoid taking actions that 

are reasonably available to address water quality impairments. The CWA provides extensive mechanisms for the state 

to utilize in addressing impaired waters, and these provisions, when fully implemented, actually move states forward in 

addressing waterbodies that are not meeting water quality standards. Variances, on the other hand, simply reduce 

water quality protection for a set time period, and do not assist states in meeting water quality standards. The use of 

variances by states will tend to delay actions necessary to clean up waterbodies, such as Total Maximum Daily Load 

("TMDL") development and implementation. Development and implementation of TMDLs is already delayed across the 

country, and EPA should not adopt any regulation that will interfere with efforts to address impaired waters. The TMDL 

and permitting process are the proper methods for dealing with waters that are not meeting water quality standards. 

Permittees that cannot comply with these requirements may obtain compliance schedules that include reasonable 

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timelines and an enforceable sequence of actions that will bring them into compliance as described below. Given this 

approach to addressing impaired waters, which was developed and approved by Congress in the CWA, it is unclear 

why variances are necessary at all. 

[FN10] http://water.epa.gov/scitech/swguidance/standards/handbook/chapter05.cfm#section3 

Response 

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

8.b 

8.b: Section A 

8.b: Section D 

Comment ID 0206-A1.001.017 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

We believe EPA should prohibit the use of variances or, at least, take action to further limit their availability. Additionally, 

we submit the following comments on the proposal in the event EPA decides to adopt it as proposed or in a similar 

form. 

Response 

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

8.b 

8.b: Section A 

Comment ID 0207-A1.001.014 

Author Name: Bodine Susan
 

Organization: American Farm Bureau Federation et al.
 

Variances -- § 131.14: 

•New federal regulations - The proposed regulations will discourage, not encourage variances, contrary to EPA's stated 

goal. 

Response 

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

8.b 

8.b: Section A 

Comment ID 0207-A1.001.032 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

F. Variances 

Recently EPA has encouraged states to adopt unattainable standards using the argument that variances will delay the 

economic and social consequences of those standards. Notwithstanding EPA's promotion of variances, the proposed 

rule, by imposing new regulations on state variances, would make it harder, not easier, to obtain variances, would 

unlawfully encroach on state authority, and would allow EPA to impose conditions outside of its authority. 

Response 

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

8.b 

8.b: Section B 

8.b: Section C 

8.b: Section E 

Comment ID 0208-A1.001.020 

Author Name: Foster Wade 

Organization: The Fertilizer Institute 

VIII. WQS Variances 

As noted above, EPA is proposing in the new section 131.14 of the Proposed Rule to regulate variances to WQS. In 

doing so, EPA is now proposing an approach to regulating the use of variances that the agency specifically rejected in 

its 1983 rulemaking.[FN42] Variances currently are referenced at 42 C.F.R. § 131.13 as one of several policies 

generally affecting the application and implementation of state WQS and which the states may, "at their discretion" 

include in their respective standards. 

Directly contrary to EPA's prior characterization of variances as not regulatory in nature, the Proposed Rule (although 

referred to as a regulatory "clarification") establishes a complex and highly prescriptive set of regulations related to 

variances while asserting several times in the preamble that the intent of the proposed language is to encourage the 

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use of variances. 

EPA offers no explanation as to this dramatic change in policy regarding variances. As with the proposed amendments 

to EPA's regulations addressing designated use changes and antidegradation, the deficiency to be solved is neither 

apparent nor clearly articulated by EPA, yet results in more complex, burdensome processes. 

The proposed amendment cannot rationally be said to encourage the use of variances. To the contrary, detailed 

variance procedures and limitations on the use of variances are mandated by the Proposed Rule, including a process 

that EPA concedes is tantamount to use attainability analysis.[FN43] 

From a brief mention in section 131.13, as a policy, that states may include in their standards at their discretion, 

variances have by virtue of the Proposed Rule been elevated to full stature as a mandated standard, reviewable under 

§ 303(c), and comparable to a designated use change - contrary to longstanding EPA policy to address variances 

through guidance because they are not regulatory in nature. 

[FN42] 48 Fed. Reg. 51,400 (Nov. 8, 1983). 

[FN43] See 78 Fed. Reg. at 54,534. 

Response 

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

8.b 

8.b: Section A 

8.b: Section B 

8.b: Section F 

Comment ID 0209-A1.001.005 

Author Name: Gilzow Floyd 

Organization: Missouri Public Utility Alliance 

4. We are concerned that greater use of Water Quality Variances as a compliance tool may be deeply flawed, will 

substantially increase the costs of wastewater treatment projects, and create greater potential for environmentally 

unproductive litigation. 

Response 

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

8.b 

8.b: Section B 

08/04/2015 05:01 PM EDT 2-992 
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8.b: Section F 

Comment ID 0209-A1.001.013 

Author Name: Gilzow Floyd 

Organization: Missouri Public Utility Alliance 

WATER QUALITY VARIANCES 

At least for those of us in Region VII of EPA which has NEVER approved a water quality variance, the concept of water 

quality variances raises questions and concerns, 

1. Why use a variance at all? What EPA proposes appears to be analogous to a state establishing a 55 MPH speed 

limit on its Interstate Highway System because that is a speed level that can be shown to save lives. However because 

some vehicles are designed to have better operational characteristics at 70 MPH, individual drivers can apply for and 

receive a variance to drive at 70 MPH. In other words, the agency is sending a mixed message when it sets a standard 

and immediately issues a variance. Is the purpose to save lives or save fuel? For water quality standards, is the 

purpose to protect the environment or is it to set an artificial limit? Wouldn't it be better to use 

2. A Standard set at a level which cannot be technologically attained creates uncertainty for planning purposes. An 

NPDES permit generally provides the permittee an effluent limit on specific characteristics on which they can plan for 

compliance for at least a five year period. They can project costs, identify training, contract for supplies and equipment, 

etc. By use of a variance which is by definition a water quality standard, the time is not just shortened from five years to 

one, but it becomes changeable on a fixed cycle which might only be one year after the NPDES permit is issued. 

3. A Standard set at a level which cannot be technologically attained creates complications for engineering design 

purposes. We have had several engineering firms located in Region VII tell us that their liability insurance carriers will 

not allow them to engage in design of a wastewater treatment plant which will have an NPDES permit issued with 

effluent levels below what is technologically able to be achieved. They tell us that it violates their professional code of 

ethics to enter into a contract for a project where they cannot meet design standards. We are unaware how other 

regions may handle this, but it is an issue with which our cities have a great concern. 

4. A Standard set at a level which cannot be technologically attained creates complications for legal purposes. The 

NPDES permit provides a safe harbor for cities that are discharging. They have virtual immunity from third party suits 

alleging environmental damage if their effluent meets permit criteria as well as unilateral changes from MDNR or EPA. 

Creation of pseudo-limits for effluent backed up by variances to more attainable levels leaves open the real possibility 

that cities could be faced with having to meet unattainable limits on short notice or no notice in situations where the 

variance itself, or the process used to issue it is challenged in court and is overturned. While it possible that NPDES 

limits might overturned, case law appears to document that it is much more likely that water quality standards will be 

overturned than NPDES limits. 

5. A Standard set at a level which cannot be technologically attained creates barriers for financing. We do not believe 

that EPA has fully evaluated the impact of this paradigm on financing activities. Cities are not capable of self-financing 

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the improvements in their treatment or collection infrastructure necessary to meet the standards contemplated in this 

rule. The foundation of Financial Markets is in predictability. There is clear history that financial markets will either not 

fund or will require significant financial protection in terms of interest rates to fund projects where there is not sold 

predictability. This change shortens the window from five years of the NPDES permit to perhaps as short as one year 

depending on when in the Triennial cycle that the original NPDES permit is issued. EPA is creating a system in which 

financing costs may rise significantly, and at a time when federal and state support for subsidized loans is decreasing. 

6. Why avoid an attainable Standard? It appears that the sole purpose is to identify an eventual goal for each individual 

pollutant and create a bureaucratic system on which to force reductions as technology changes regardless of the status 

of the existing facility on a three year window instead of a five year window. This proposed rule ignores the fact that new 

technology is not readily installed in a concrete and steel wastewater treatment plant structure just because it is 

commercially available. This change strips away a city's safe harbor from unilateral changes in effluent limits that they 

enjoy today. 

We ask that EPA withdraw this section and better review the consequences. If this is a practice that is widely used in 

other regions, then it may be more appropriate to modify operating activities in one or two regions, than to change rules 

for the entire nation. 

Response 

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

8.b 

8.b: Section A 

8.b: Section D 

8.b: Section E 

8.b: Section F 

Comment ID 0215-A1.001.015 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

V. Variances (78 Fed. Reg. 54,532) 

EPA currently allows for variances from water quality standards, but variances are only referenced in 40 CFR §131.13 

as an option for states to utilize in their standards. This section currently provides that "[s]tates may, at their discretion, 

include in their State standards, policies generally affecting their application and implementation, such as mixing zones, 

low flows and variances. Such policies are subject to EPA review and approval." 40 CFR §131.13. Since 1977, EPA 

has officially allowed variances as long as they are "adopted consistent with the substantive and procedural 

requirements for permanently downgrading a designated use," i.e. based on the factors in 40 CFR §131.10(g). 78 

Federal Register 54,531. EPA defined a variance as "the practice of temporarily downgrading the WQS as it applies to 

a specific discharger rather than permanently downgrading an entire water body or waterbody segment(s)." 78 Federal 

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Register 54,531. Under existing variance guidance, a "discharger who is given a variance for one particular constituent 

is required to meet the applicable criteria for all other constituents. The variance is given for a limited time period and 

the discharger must either meet the WQS upon the expiration of this time period or the state or tribe must adopt a new 

variance or re-justify the current variance subject to EPA review and approval." 78 Federal Register 54,531. 

In the past, according to the Water Quality Standard Handbook,[FN10] EPA approved variances so long as: 

• Each individual variance is included as part of the water quality standard; 

• The State demonstrates that meeting the standard is unattainable based on one or more of the grounds outlined in 40 

CFR 131.10(g) for removing a designated use; 

• The justification submitted by the State includes documentation that treatment more advanced than that required by 

sections 303(c)(2)(A) and (B) has been carefully considered, and that alternative effluent control strategies have been 

evaluated; 

• The more stringent State criterion is maintained and is binding upon all other dischargers on the stream or stream 

segment; 

• The discharger who is given a variance for one particular constituent is required to meet the applicable criteria for 

other constituents; 

• The variance is granted for a specific period of time and must be rejustified upon expiration but at least every 3 years 

(Note: the 3-year limit is derived from the triennial review requirements of section 303(c) of the Act.); 

• The discharger either must meet the standard upon the expiration of this time period or must make a new 

demonstration of "unattainability"; 

• Reasonable progress is being made toward meeting the standards; and 

• The variance was subjected to public notice, opportunity for comment, and public hearing. (See section 303(c)(l) and 

40 CFR 131.20.) The public notice should contain a clear description of the impact of the variance upon achieving water 

quality standards in the affected stream segment. 

Under the Proposed Rule, EPA is altering the long-standing requirement for the issuance of variances on the grounds 

that the new requirements "are tailored to better fit the circumstances where variances will allow for environmental 

progress toward achieving the goals of the CWA." 78 Federal Register 54,532. 

Waterkeepers are concerned that these new provisions will increase the use of variances to avoid taking actions that 

are reasonably available to address water quality impairments. The CWA provides extensive mechanisms for the state 

to utilize in addressing impaired waters, and these provisions, when fully implemented, actually move states forward in 

addressing waterbodies that are not meeting water quality standards. Variances, on the other hand, simply reduce 

water quality protection for a set time period, and do not assist states in meeting water quality standards. The use of 

variances by states will tend to delay actions necessary to clean up waterbodies, such as Total Maximum Daily Load 

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("TMDL") development and implementation. Development and implementation of TMDLs is already delayed across the 

country, and EPA should not adopt any regulation that will interfere with efforts to address impaired waters. The TMDL 

and permitting process are the proper methods for dealing with waters that are not meeting water quality standards. 

Permittees that cannot comply with these requirements may obtain compliance schedules that include reasonable 

timelines and an enforceable sequence of actions that will bring them into compliance as described below. Given this 

approach to addressing impaired waters, which was developed and approved by Congress in the CWA, it is unclear 

why variances are necessary at all. 

[FN10] http://water.epa.gov/scitech/swguidance/standards/handbook/chapter05.cfm#section3 

Response 

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

8.b 

8.b: Section A 

8.b: Section D 

Comment ID 0215-A1.001.017 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

We believe EPA should prohibit the use of variances or, at least, take action to further limit their availability. Additionally, 

we submit the following comments on the proposal in the event EPA decides to adopt it as proposed or in a similar 

form. 

Response 

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

8.b 

8.b: Section A 

Comment ID 0229-A2.001.005 

Author Name: Tillison Naomi 

Organization: Bad River Band of Lake Superior Tribe of Chippewa Indians 

WQS Variances 

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The Tribe supports EPA's efforts to clarify regulatory guidelines to ensure the appropriate and effective use of WQS 

variances for existing discharges in order to improve and maintain the quality of the Nation's waters. However, the 

proposed revisions appear to fall short of this objective, in two areas particularly. 

Response 

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

8.b 

8.b: Section A 

Comment ID 0234-A2.001.026 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

We are concerned that EPA's proposed regulation of variances will hinder, not help, State adoption of variances. 

Currently, States must demonstrate that one of the six factors for removing a designated use listed in § 131.10(g) is met 

before adopting a variance. EPA's proposed rule would continue that requirement, but also add unnecessary new 

limitations on variances. As noted above, we favor fewer specified process demands in 40 C.F.R. Part 131 and believe 

EPA should allow States to work out their own regulatory processes. If, despite our recommendation to the contrary, 

EPA proceeds with the promulgation of regulations governing variances, we recommend changes to those regulations 

as described below. 

Response 

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

8.b 

8.b: Section A 

8.b: Section B 

Comment ID 0248-A2.001.016 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

5. Variances 

The Proposed Rule establishes a new § 131.14 creating for the first time a federal regulation for variances from water 

quality standards, which until now have been regulated exclusively by states. As a threshold matter, Mosaic does not 

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agree that a federal variance regulation is needed. EPA has in the past pointed to the availability of variances as an 

option for compliance with water quality standards that may otherwise be difficult to attain in a short time frame. See, 

e.g., Water quality Standards for Florida's Lakes and Flowing Waters, Final Rule, 75 Fed. Reg. 75,762, 786 (Dec. 6, 

2010) (describing a "state issued variance" as an "appropriate vehicle for regulatory flexibility" in meeting newly 

promulgated federal nutrient criteria). Since states have the responsibility in the first instance to establish WQS and to 

establish and implement permitting programs for point source dischargers, it is critical that states retain full flexibility to 

manage variances according to their best judgment of local needs and their administration of these programs. 

Response 

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

8.b 

8.b: Section A 

8.b: Section B 

Comment ID 0250-A2.001.008 

Author Name: Batterton Carol 

Organization: Water Environment Association of Texas, Texas Association of Clean Water Agencies, and Texas Water 

Conservation Association 

Variances to the Water Quality Standards 

We are concerned that the revisions contained in the proposed rule relating to variances will needlessly complicate and 

render Texas's current variance procedure ineffective-a procedure that already addresses the concerns EPA is trying to 

address in this rulemaking. In Texas, variances to a water quality standard are temporary in nature, in accordance with 

water quality regulations. A temporary variance to a water quality standard can only be granted when scientific 

information indicates an adjustment to the standard is justified. Generally, this means that the person seeking the 

variance (usually the permittee) must first provide some level of justification for the variance. 

The length of time temporary variances are in effect before a standards revision is approved is controlled through the 

issuance of a short-term permit (three years rather than five years).[FN1] The permit contains special provisions 

establishing a schedule for submission of the work plan and specifies the effluent limits that will be applied in the next 

permit cycle if the permittee does not comply with the requirements of the variance or if the existing standard is not 

revised. The variance may be extended through the next permit cycle to allow for the standards revision if TCEQ and 

EPA have approved the site-specific standard. However, the Texas Standards specifically provide that if a permittee is 

not complying with the conditions of the variance, then the succeeding permit is issued with final effluent limits based on 

the existing standard, effective immediately without a compliance period.[FN2] These procedures provide incentive for 

permitees to adhere to workplan schedules so that variances do not linger unnecessarily. If EPA believes that any 

situation has extended for too long, it can exercise control at the time of permit renewal. 

[FN1] 30 Texas Admin. Code § 307.2(d)(5) 

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[FN2] Id. 

Response 

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

8.b 

8.b: Section B 

Comment ID 0250-A2.001.011 

Author Name: Batterton Carol 

Organization: Water Environment Association of Texas, Texas Association of Clean Water Agencies, and Texas Water 

Conservation Association 

WEAT, TACWA, and TWCA members believe that existing Texas regulations adequately and fairly address the 

variance process for Water Quality standards. 

Response 

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

8.b 

8.b: Section A 

Comment ID 0263-A2.001.005 

Author Name: Gretchen Watkins Larry Wawronowicz 

Organization: Lac du Flambeau Band of Lake Superior Tribe of Chippewa Indians 

WQS Variances 

The Tribe supports EPA's efforts to clarify regulatory guidelines to ensure the appropriate and effective use of WQS 

variances for existing discharges in order to improve and maintain the quality of the Nation's waters. However, the 

proposed revisions appear to fall short of this objective. 

Response 

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

8.b 

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8.b: Section A 

Comment ID 0268-A2.001.024 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

F. WQS Variances 

Background 

We note that EPA opens the discussion on variances with the statement that they are intended to "make progress 

towards attaining a designated use and criteria." This theme, that variances are not just about getting one or more 

permittees off-the-hook but are intended to lead to attainment is repeated throughout this section of the preamble. What 

is much less certain is that EPA's proposed rule revisions will accomplish this goal. In fact, we are quite certain that they 

will not, for reasons discussed below. In the event that we are correct, EPA will have created and encouraged the use 

of a very significant loophole in the implementation of the Clean Water Act, a law that is already been much abused in 

its implementation. Given that the proposed rule language does not require the use of nonpoint source controls that are 

identified and that it does not require any conditions (e.g., to reduce pollution or to gather data) be contained within the 

variance, it is extremely unlikely that states will include such requirements in their own rules and that variances issued 

by states will contain any specific plans to reduce pollutant loading from either point or nonpoint sources. In the 

absence of any language requiring a result and any explanation by EPA of why it expects such a result, it's clear that 

EPA is engaging in pure rhetoric in asserting variances will help make progress towards attainment. 

Response 

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

8.b 

8.b: Section D 

Comment ID 0268-A2.001.026 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

In many instances the primary cause of impairment is past pollution, which EPA vaguely terms "legacy," and nonpoint 

sources, the lack of control over which remains the single greatest failure to the Clean Water Act. NPDES permit 

holders, however, have many ways in which they are currently not held to meeting water quality standards. They 

include, inter alia, the following: mixing zones which are generally very flexible and allow permit writers to discount 

contributions of loads; TMDLs which fail utterly to correctly assess reasonable assurance that nonpoint sources will be 

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reduced and thereby grant excessively large and unrealistic wasteload allocations to point sources; quantitation limits 

that far exceed criteria resulting in water quality based effluent limits that are not protective; inadequate monitoring data 

on receiving water quality that allows permittees to avoid water quality based effluent limits (WQBEL) and to postpone 

compliance with water quality standards on the basis that more information must be gathered, information that often 

proves inadequate in the next permitting cycle; narrative criteria that are never translated into WQBELs; and a wide 

variety of informal non-public exceptions that states create to avoid issuing WQBELs. This backdrop must be evaluated 

when EPA makes the comment that "this WQS tool [of variances] is underutilized." Id. at 54531. EPA should explain 

why it makes such an unsubstantiated statement. The fact that some states and some regions have never used 

variances does not prove that this tool to avoid meeting standards has not been sufficiently used. Perhaps lack of use 

proves that it has not been needed. EPA fails to substantiate the statement by explaining what states (and EPA) have 

been doing in lieu of using variances. Such information would be highly informative and increase transparency in 

permitting. We are certainly aware of a long history in Oregon of flimsy and unenforced administrative orders used to 

purportedly bind permittees to action and used in lieu of compliance schedules. We would like to know, however, what 

EPA sees as substantiating its finding that more variances should be both received and approved by EPA. 

On the other hand, we agree that there is confusion and lack of clarity because the regulations make only passing 

reference to variances. If they are going to be used, they require clear and consistent regulation. We do not believe this 

has been achieved in the proposed rules. 

Response 

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

8.b 

8.b: Section A 

8.b: Section D 

Comment ID 0272-A2.001.019 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

V. VARIANCES 

A. Variances from Water Quality Standards are Not Necessary and Not Supported Under the Plain Terms of the Clean 

Water Act. 

In general, variances, like UAAs, appear to be a tool that has outlived their usefulness (if they were ever a legitimate 

application under the Clean Water Act.) EPA's justification for the use(s) of variances is inconsistent with the basic 

structure and requirements of the Clean Water Act and the Water Protection Groups strongly question their continued 

use. Variances appear to be nothing more than an off-ramp away from steadily improving water quality and meeting 

standards. Contrary to EPA's unsupported claim, variances are not an "aid" to states to meeting water quality standards 

but an excuse to avoid them. EPA's justification of them makes no sense under the Clean Water Act. 

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States must set water quality standards to protect designated uses. In some instances those standards are plainly not 

being met. Where water quality standards are not attained, a state must report this fact to EPA and the water is added 

to a § 303(d) or impaired water list. 33 U.S.C. § 1313(d). Once on the list, the water body is in the queue for preparation 

of a clean-up plan-a Total Maximum Daily Load ("TMDL") plan. States have a significant amount of time to prepare and 

finalize TMDLs. A TMDL sets Waste Load Allocations ("WLAs") which assign specific load limits to specific point source 

discharges. In setting WLAs, a state has determined that these are the discharge limits necessary to return the water to 

meeting water quality standards (along with whatever reductions have been assigned to the Load Allocation ("LA")). If 

the WLAs do not meet that definition, then the TMDL is deficient and must be redone. Similarly, if the WLA and LA 

reductions are expected to take an extremely long time it could be argued that the TMDL is deficient because it is 

impossible to say with any reasonable assurance that the reductions will actually occur, a requirement in EPA's TMDL 

guidance. Rather, as work on a water body progresses, states reassess and readjust a TMDL as necessary. The water 

body remains "impaired" in status (and thereby subject to the TMDL clean up plan) until it achieves water quality 

standards. This is the straight-forward way that waters are to be cleaned up under the Clean Water Act procedures 

adopted by Congress. The water quality standards serve as the goal and guiding principle toward which the TMDL and 

it implementation must always be geared. 

Point sources must have permits to discharge and those permits are to include effluent limitations and other provisions 

(for example compliance plans) to ensure that the permit is designed to not cause or contribute to violations of water 

quality standards. In a TMDL situation, a point source will have been assigned a wasteload allocation, a part of the 

TMDL with which point sources must comply. The point source's permit must include limits as necessary to comply with 

the wasteload allocation. Again, compliance plans are a method to help point sources reach compliance over the 

course of a permit. See also below. 

Given this Clean Water Act structure, there is no reason for EPA to allow "variances" from water quality standards. 

They make no sense under the Clean Water Act. EPA purports to allow variances as necessary to "provide states and 

tribes time to make progress towards attaining a designated use and criteria" or to "help improve water quality by 

allowing states and tribes time to work with stakeholders", or to "provide[] states and tribes with time to implement 

adaptive management approaches." See 78 Fed. Reg. 54,531-32 (emphasis added). This implies, incorrectly, that the 

Clean Water Act imposes some sort of penalty on a state for failing to achieve water quality standards by a certain date. 

Regrettably, it does not. A variance does not "create" additional time; whatever time is genuinely needed to meet water 

quality standards, that time will be taken regardless whether the state adopts a variance. 

The purported "time" issue is not a genuine problem. When a water body is finally added to a state impaired water list, it 

has likely been already impaired for some time. Once a water is on the list, states have ample time to prepare a TMDL 

for EPA approval (and many states take far longer than is reasonably needed). This is not the timeline for completing 

the TMDL and bringing the water into compliance with standards. This is just the period of time a state has to propose 

and finalize the cleanup plan. During that time, states should be working aggressively with point sources, at a minimum, 

to ensure that permits are meeting the requirements of 40 C.F.R. § 122.44(d) which will make the TMDL process 

easier. Once the TMDL is approved by EPA, there is nothing in the Clean Water Act requiring that the TMDL goals be 

met in some set period of time. While it is true that a water body may not yet attain water quality standards even when 

the point sources implement their reductions, it simply means that the water will remain listed under 303(d) as impaired 

until standards are attained. That is how the law works. The claim that "long term" strategies necessitate variances is 

ridiculous. The "long term strategy" is the TMDL itself-the clean up plan to meet water quality standards, not weaken 

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them. There is no need to weaken protections, even temporarily, for our nation's waters under the existing structure. 

To weaken water quality standards will simply exacerbate (or possibly create) an impairment situation by allowing more 

pollution over more time making ultimate cleanup lengthier and more difficult. It is self-defeating. This is the precise 

opposite of the Clean Water Act goals and requirements. If dischargers need time to employ new technologies or 

methods to meet stricter permit limits, the use of compliance plans and schedules ensures they use that time to install 

aggressive pollution controls, without weakening standards. 

In fact, variances can work against the very things EPA claims might require time. For example, if the problem is 

primarily a non-point source one, downgrading and weakening standards through variances provides a disincentive to 

moving quickly and aggressively to deal with water quality problems. Application of a safety valve like variances simply 

derails the statutory process of identifying troubled bodies of water and getting to work on a plan for clean up. The 

Water Protection Groups urge EPA to rethink this failed and unnecessary policy and eliminate it from EPA's regulations. 

At a minimum EPA should not be expanding the use of variance, but should be striving to narrow their use to very 

limited circumstances. 

Response 

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

8.b 

8.b: Section A 

8.b: Section D 

Comment ID 0276-A2.001.009 

Author Name: Alves James 

Organization: Hopping Green & Sams on behalf of Florida Electric Power Coordinating Group, Inc. 

EPA offers no adequate explanation for this dramatic change in policy regarding variances. The proposed amendment 

cannot rationally be said to encourage the use of variances. To the contrary, detailed variance procedures and 

limitations on the use of variances are mandated by rule including a process that EPA concedes is tantamount to use 

attainability analysis. [FN1] 

[FN1] 78 Fed. Reg. 54534 

Response 

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

8.b 

8.b: Section A 

8.b: Section B 

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Chapter 2 - Comment Documents Variances 

Comment ID 0280-A2.001.013 

Author Name: Aspatore Amanda 

Organization: National Mining Association 

Variances 

EPA proposes to add requirements to ensure "proper" use of variances by states. However, states regularly adopt 

variances as a means to implement water quality standards due to the wide variety of discharges and waters impacted 

under the state programs. As such, variances are an important mechanism for water quality standard implementation. 

States are clearly the most knowledgeable authority to determine which actions are appropriate and how variances 

should be implemented given the totality of the local circumstances. This flexibility is especially important as effluent 

limitations and long-term goals become more stringent. EPA fails to identify any justification for interfering with the 

states' authority to make assessments based on local conditions in the manner proposed. 

Response 

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

8.b 

8.b: Section B 

Comment ID 0282-A2.001.009 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

5. Variances 

EPA is proposing significant new language under this new section to address variances. Clarification of when and how 

variances can be used is needed, given the significant challenges that states face in trying to regulate legacy and 

pervasive pollutants that are not easily controlled within the legal framework of the CWA. However, we urge EPA not to 

place restrictions on using variances that will negate the ability to use this important tool while dischargers are working 

towards meeting increasingly stringent, difficult to achieve standards. Comments include: 

Response 

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

8.b 

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Chapter 2 - Comment Documents Variances 

8.b: Section B 

Comment ID 0284-A2.001.009 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

5. Variances 

EPA is proposing significant new language under this new section to address variances. Clarification of when and how 

variances can be used is needed, given the significant challenges that states face in trying to regulate legacy and 

pervasive pollutants that are not easily controlled within the legal framework of the CWA. However, we urge EPA not to 

place restrictions on using variances that will negate the ability to use this important tool while dischargers are working 

towards meeting increasingly stringent, difficult to achieve standards. Comments include: 

Response 

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

8.b 

8.b: Section B 

8.C - VAR - DEFINITION 

Comment ID 0156-A1.001.014 

Author Name: Jackie Kepke Adam Link 

Organization: California Association of Sanitation Agencies and Tri-TAC 

Overall, the variance provisions appear broad enough to encompass the range of variances being discussed at the 

State and regional level in California, and should not pose a problem or result in inconsistencies in that regard. 

However, there are three elements of the proposed modifications that require clarification and, potentially, modification. 

First, there is a need to clarify the meaning of the term "highest attainable condition" as that term is used in FR 54531-

54534 and proposed additions to 40 CFR section 131.14 ("...A water quality standards variance (WQS variance) is a 

time-limited designated use and criterion for a specified pollutant(s), permittee(s), and/or water body or waterbody 

segment(s) that reflect the highest attainable condition during the specified time period.") To the extent that "highest 

attainable condition" is interpreted to be the same as "highest attainable use" as defined in section 131.3(m), and to the 

extent that the new definition in 131.3(m) necessarily requires a UAA, then we believe that this qualification for a 

variance is unnecessary and inappropriate. Requiring a full UAA defeats the purpose of a variance in the first instance 

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as variances are designed to be limited in nature and time, and represent a method to provide regulatory flexibility 

without changing the underlying water quality standard. Requiring a full UAA equivalent to what would be required to 

change the water quality standard to determine highest attainable condition for variance purposes is not an effective or 

supportable approach and should be removed from the regulation. However, if "highest attainable condition" is a 

discrete concept, then USEPA should clarify its use of that term in the context of the proposed variance modifications. 

Response 

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

8.c 

8.c: Section B 

8.g.iv 

Comment ID 0158-A1.001.024 

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.] 

KDOW's suggests the following revisions to §131.14: 

§ 131.14 Water quality standards variances. 

States may, at their discretion, grant variances subject to the provisions of this section and public participation 

requirements at § 131.20(b). A water quality standards variance (WQS variance) is a time-limited designated use and 

criterion for a specified pollutant(s), permittee(s), and/or water body or waterbody segment(s) that reflect the highest 

attainable condition during the specified time period. [begin strikeout] WQS variances are water quality standards 

subject to EPA review and approval or disapproval and must be consistent with this section. Any such WQS variances 

adopted after [effective date of the final rule] must be consistent with this regulatory section. [end strikeout] 

Response 

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

8.c 

8.c: Section A 

8.c: Section C 

8.c: Section D 

8.f.i 

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Comment ID 0166-A2.001.024 

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.] 

KDOW's suggests the following revisions to §131.14: 

§ 131.14 Water quality standards variances. 

States may, at their discretion, grant variances subject to the provisions of this section and public participation 

requirements at § 131.20(b). A water quality standards variance (WQS variance) is a time-limited designated use and 

criterion for a specified pollutant(s), permittee(s), and/or water body or waterbody segment(s) that reflect the highest 

attainable condition during the specified time period. [begin strikeout] WQS variances are water quality standards 

subject to EPA review and approval or disapproval and must be consistent with this section. Any such WQS variances 

adopted after [effective date of the final rule] must be consistent with this regulatory section. [end strikeout] 

Response 

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

8.c 

8.c: Section A 

8.c: Section C 

8.c: Section D 

8.f.i 

Comment ID 0175-A1.001.021 

Author Name: Canton Steven 

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

5.0 WQS Variances 

131.14 Water quality standards variances 

EPA is proposing a new regulatory definition for WQS variances by the addition of this section to Part 131, Subpart B. 

Section 131.14 states that variances are WQS and are subject to EPA approval. 

a. We agree that variances are a useful tool. Subject to the caveats noted below, we generally support this addition and 

clarification. 

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b. The preamble states that variances provide time for states, authorized tribes, and stakeholders to "implement 

adaptive management approaches that will improve water quality." However, the rule is not forthcoming on defining the 

"adaptive management approaches" that EPA expects (will require?) be implemented. 

Response 

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

8.c 

8.c: Section E 

Comment ID 0178-A2.001.012 

Author Name: Burnell Barry 

Organization: Idaho Department of Environmental Quality 

Why does EPA propose in § 131.14 to describe a variance as "time-limited designated use and criterion for a specified 

pollutants(s)"? Time-limited makes sense, a defining characteristic of a variance, but why a change to both use and 

criterion? In most situations there is only difficulty in complying with a particular pollutant(s). If the situation is not 

pollutant and discharger specific then perhaps a use change or sitespecific criterion are more appropriate. EPA should 

clarify that a state may provide a variance that will allow a discharger to vary from the criteria applicable to a particular 

pollutant(s), without also providing a variance to the use. This makes a large difference because while a particular 

discharger may be unable to attain a criterion, the use designated for the water in which the facility discharges may still 

be attainable. That prevailing use, and associated criteria, would still be used as the water quality goal for other 

discharges, assessment of waterbody use support, and in TMDLs. 

We recommend EPA change the language in in §131.14 to drop mention of designated uses and focus variances on 

temporary deviation from criteria only, so as not to blur the lines between variances and use changes done under 

section §131.10. 

Response 

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

8.c 

8.c: Section F 

8.f.i 

Comment ID 0178-A2.001.015 

Author Name: Burnell Barry 

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Chapter 2 - Comment Documents Variances 

Organization: Idaho Department of Environmental Quality 

We also ask that EPA borrow language from its proposed compliance schedule rule(§ 131.15), and modify §131.14 to 

include a statement that "Individual variances issued pursuant to authorizing provisions are not themselves water 

quality standards." 

Response 

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

8.c 

8.c: Section C 

8.b 

8.f.i 

Comment ID 0189-A1.001.019 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

Variances: Scope and definition 

EPA proposed definition of a variance "is a time-limited designated use and criterion for a specified pollutant(s), 

permittees and/or water body or water body segment(s) that reflect the highest attainable conditions during the 

specified time period." This clarification is an improvement over the existing vague variance language in the CWA. 

However, we suggest that variances, like UAAs, should be ‘sunsetting' after 40 years of CWA implementation. 

Response 

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

8.c 

8.c: Section G 

Comment ID 0194-A1.001.016 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

Our comments on specific aspects of this proposed regulation are as follows: 

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1. The second sentence in the introductory paragraph of proposed 131.14 defines a WQS variance as a "time-limited 

designated use," and imposes a requirement that it "reflect the highest attainable condition" (presumably, in the subject 

stream segment). There is nothing in existing law, however, that requires that a variance encompass a change to the 

designated use of the subject stream, or that requires any determination of what is the "highest attainable condition" in 

that stream. Assuming that a discharger has otherwise demonstrated entitlement to a variance for the reasons specified 

under existing state rules or 40 CFR 131.10(g), for example, then there should be no need to insist upon compliance 

with these definitions. 

Response 

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

8.c 

8.c: Section F 

8.c: Section H 

8.m 

Comment ID 0195-A1.001.020 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

Variances: Scope and definition 

EPA proposed definition of a variance "is a time-limited designated use and criterion for a specified pollutant(s), 

permittees and/or water body or water body segment(s) that reflect the highest attainable conditions during the 

specified time period." This clarification is an improvement over the existing vague variance language in the CWA, but 

the NTWC suggests that variances, like UAAs, should be ‘sunsetting' after 40 years of CWA implementation. 

Response 

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

8.c 

8.c: Section G 

Comment ID 0200-A1.001.010 

Author Name: Covar Zak 

Organization: Texas Commission on Environmental Quality 

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Chapter 2 - Comment Documents Variances 

5. Water Quality Standards Variances. 

TCEQ strongly opposes EPA's proposed provisions for a water quality standards variance (WQS variance). In proposed 

40 CFR § 131.14, EPA defines a WQS variance as a "time limited designated use and criterion for a specified 

pollutant(s), permittee(s), and/or water body or water body segment(s) that reflect the highest attainable condition 

during the specified time period." With this definition, EPA appears to be trying to blend a WQS variance for an 

individual permit with a WQS variance for an entire water body. 

Response 

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

8.c 

8.c: Section A 

8.f.i 

Comment ID 0203-A1.001.028 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

With respect to one particular kind of variance, namely thermal variances under § 316(a) of the Clean Water Act, the 

proposal is unclear. Footnote 18 says that EPA distinguishes WQS variances from variances described in 40 C.F.R. §§ 

122.2 and 125.3. 78 Fed. Reg. 54,531 n.18. Section 122.2 defines "variance" to include § 316(a) thermal variance, and 

§ 125.3(b)(1)(ii)(C) refers to statutory variances including § 316(a) thermal variance. 

UWAG understands footnote 18 to mean that the limits on water quality standards variances that would be imposed by 

proposed § 131.14 would not apply to § 316(b) variances, and we agree they should not. But EPA would do well to 

clarify that thermal variances that satisfy § 316(b) are not subject to the proposed § 131.14 regarding variances. 

Response 

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

8.c 

8.c: Section I 

Comment ID 0206-A1.001.018 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

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A. Scope of Variances (78 Fed.Reg.54,532) 

According to the Proposed Rule preamble, "EPA is proposing a new regulatory definition for WQS variance at § 131.14. 

A water quality standards variance (WQS variance) is a time-limited use and criterion for a specified pollutant(s), 

permittee(s), and/or water body or waterbody segment(s) that reflect the highest attainable condition during the 

specified time period." 78 Federal Register 54,532. This definition expands the scope of variances beyond what has 

previously authorized and found to be consistent with the CWA by the Office of General Counsel, which included only 

"the practice of temporarily downgrading the WQS as it applies to a specific discharger rather than permanently 

downgrading an entire water body or waterbody segment(s)." See 78 Federal Register 54,531. This definition appears 

to allow downgrading of water quality standards for pollutants, specific permittees, multiple permittees, waterbodies, 

and waterbody segments. Further, the definition no longer requires that the "variance is adopted consistent with the 

substantive and procedural requirements for permanently downgrading a designated use" which was a key condition in 

the Office of General Counsel's conclusion that variances of this nature were consistent with the CWA. Id. The 

preamble does not include any legal analysis that would support a position that variances for pollutants, multiple 

permittees, waterbodies, or waterbody segments are consistent with the provisions of the CWA. 

We believe that this new definition is directly in conflict with the requirements of CWA Sections 101 and 303. Under 

Section 303(c), water quality standards "shall be such as to protect the public health or welfare, enhance the quality of 

water and serve the purposes of this chapter. Such standards shall be established taking into consideration their use 

and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, 

and other purposes, and also taking into consideration their use and value for navigation." The proposed definition 

would allow for a downgrading of water quality standards for all permittees, for an entire waterbody or for specific 

pollutants without regard to the impact public health or designated uses. Under the new section (a)(2)(ii), for the 

purposes of CWA Sections 401 certifications and 402 permitting "the interim requirements will be the standards 

applicable for purposes of the CWA under 40 C.F.R. 131.21(c)-(e)." See 78 Federal Register 54,545. These provisions 

are contrary to the basic requirements of the CWA, and could have substantial adverse impacts on public health and 

water quality. 

We strongly object to this new regulatory definition in the Proposed Rule. 

Response 

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

8.c 

8.c: Section A 

8.c: Section H 

8.f.i 

8.f.ii 

Comment ID 0207-A1.001.040 

Author Name: Bodine Susan 

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Chapter 2 - Comment Documents Variances 

Organization: American Farm Bureau Federation et al. 

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

If EPA proceeds with regulatory mandates, proposed § 131.14 should be amended to read as follows: 

Water quality standards variances. 

States may, at their discretion, grant variances [begin strikeout] subject to the provisions of this section [end strikeout]. 

A water quality standards variance (WQS variance) is a time-limited designated use and criterion for a specified 

pollutant(s), permittee(s), and/or water body or waterbody segment(s) that reflect the [begin new text] condition during 

the specified time period that the State determines is the highest attainable. [end new text] WQS variance [begin 

strikeout] s [end strikeout] [begin new text] policies and procedures [end new text] are water quality standards subject to 

EPA review and approval or disapproval and must be consistent with this section. Any such WQS variances adopted 

after [effective date of the final rule] must be consistent with this regulatory section. 

Response 

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

8.c 

8.c: Section B 

8.c: Section D 

8.f.i 

Comment ID 0215-A1.001.018 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

A. Scope of Variances (78 Fed.Reg.54,532) 

According to the Proposed Rule preamble, "EPA is proposing a new regulatory definition for WQS variance at § 131.14. 

A water quality standards variance (WQS variance) is a time-limited use and criterion for a specified pollutant(s), 

permittee(s), and/or water body or waterbody segment(s) that reflect the highest attainable condition during the 

specified time period." 78 Federal Register 54,532. This definition expands the scope of variances beyond what has 

previously authorized and found to be consistent with the CWA by the Office of General Counsel, which included only 

"the practice of temporarily downgrading the WQS as it applies to a specific discharger rather than permanently 

downgrading an entire water body or waterbody segment(s)." See 78 Federal Register 54,531. This definition appears 

to allow downgrading of water quality standards for pollutants, specific permittees, multiple permittees, waterbodies, 

and waterbody segments. Further, the definition no longer requires that the "variance is adopted consistent with the 

substantive and procedural requirements for permanently downgrading a designated use" which was a key condition in 

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the Office of General Counsel's conclusion that variances of this nature were consistent with the CWA. Id. The 

preamble does not include any legal analysis that would support a position that variances for pollutants, multiple 

permittees, waterbodies, or waterbody segments are consistent with the provisions of the CWA. 

We believe that this new definition is directly in conflict with the requirements of CWA Sections 101 and 303. Under 

Section 303(c), water quality standards "shall be such as to protect the public health or welfare, enhance the quality of 

water and serve the purposes of this chapter. Such standards shall be established taking into consideration their use 

and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, 

and other purposes, and also taking into consideration their use and value for navigation." The proposed definition 

would allow for a downgrading of water quality standards for all permittees, for an entire waterbody or for specific 

pollutants without regard to the impact public health or designated uses. Under the new section (a)(2)(ii), for the 

purposes of CWA Sections 401 certifications and 402 permitting "the interim requirements will be the standards 

applicable for purposes of the CWA under 40 CFR 131.21(c)-(e)." See 78 Federal Register 54,545. These provisions 

are contrary to the basic requirements of the CWA, and could have substantial adverse impacts on public health and 

water quality. 

We strongly object to this new regulatory definition in the Proposed Rule. 

Response 

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

8.c 

8.c: Section A 

8.c: Section H 

8.f.i 

8.f.ii 

8.m 

Comment ID 0230-A1.001.021 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

The definition of a variance contained in the new proposal "is a timelimited designated use and criterion for a specified 

pollutant(s), permittees and/or water body or waterbody segment(s) that reflect the highest attainable conditions during 

the specified time period." (78 FR at 54545) This is an acceptable definition. 

Response 

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

8.c 

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8.c: Section A 

Comment ID 0236-A2.001.017 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

F. 131.14 Water Quality Standards Variances 

Background 

WDNR supports the following clarifications: 

• Variances may be granted when the variance meets the same requirements as a permanent designated use change 

specified in §131.10(g), even though the WQS regulation for the state lacks explicit provision on the issue. 

Response 

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

8.c 

8.c: Section A 

Comment ID 0240-A2.001.022 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

5. WQS Variances 

131.14 Water quality standards variances 

EPA is proposing a new regulatory definition for WQS variances by the addition of this section to Part 131, Subpart B. 

Section 131.14 states that variances are WQS and are subject to EPA approval. 

a. We agree that variances are a useful tool. Subject to the caveats noted below, we generally support this addition and 

clarification. 

b. The preamble states that variances provide time for states, authorized tribes, and stakeholders to "implement 

adaptive management approaches that will improve water quality." However, the rule is not forthcoming on defining the 

"adaptive management approaches" that EPA expects (will require?) be implemented. 

08/04/2015 05:01 PM EDT 2-1015
 
Chapter 2 - Comment Documents Variances 

Response 

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

8.c 

8.c: Section A 

8.c: Section E 

Comment ID 0259-A2.001.006 

Author Name: Naylor Char 

Organization: Puyallup Tribe of Indians 

We also agree that a definition of a water quality variance should be included in regulation including language that the 

variance is a temporary water quality standard, subject to EPA review and approval prior to being in effect. The 

definition should also include a requirement for the discharger to specify and verify the highest achievable water quality 

possible during the term of the variance as well as a requirement that the original water quality standard must be 

attained by a date certain. 

Response 

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

8.c 

8.c: Section A 

08/04/2015 05:01 PM EDT 2-1016
 
Comment ID 0268-A2.001.048

Author Name: Bell Nina

Organization: Northwest Environmental Advocates

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

8. Add § 131.14 to subpart B to read as follows:

States may, at their discretion, grant variances subject to the provisions of this section and public participation

requirements at § 131.20(b). A water quality standards variance (WQS variance) is a time-limited designated use and

criterion for a specified pollutant(s) [begin new text] and, [end new text] permittee(s) [begin strikeout] , and/or water

body or waterbody segment(s) [end strikeout] that reflect the highest attainable condition during the specified time

period. WQS variances are water quality standards subject to EPA review and approval or disapproval and must be

consistent with this section. Any such WQS variances adopted after [effective date of the final rule] must be consistent

with this regulatory section. 

Response

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

8.c

8.c: Section A

8.c: Section D

8.f.i

Comment ID 0271-A1.001.009

Author Name: Montoya Victor

Organization: Pueblo of Sandia

9. New regulatory definition at § 131.14. The Pueblo of Sandia has reviewed the proposed definition on variances and

agrees with the proposed language.

Response

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

8.c

8.c: Section A

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08/04/2015 05:01 PM EDT 2-1017
Comment ID 0272-A2.001.024

Author Name: Jennifer Chavez Janette Brimmer

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27

The Water Protection Groups agree that EPA should specify in the rule that a variance does not replace or otherwise

alter the underlying designated use.

Response

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

8.c

8.c: Section F

Comment ID 0283-A1.001.016

Author Name: Thorme Melissa

Organization: Downey Brand Attorneys LLP on behalf of several clients

F. WQS Variances

1. Scope and Applicability

Variances are not water quality standards; variances are implementation provisions to be used in the process of trying

to attain water quality standards and should not be subject to the review and approval of U.S. EPA.

Response

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

8.c

8.c: Section C

8.f.i

8.D - VAR - PRACTICALITY

Comment ID 0119-A1.001.012

Author Name: Lemke Lee

Chapter 2 - Comment Documents Variances

08/04/2015 05:01 PM EDT 2-1018
Organization: Georgia Mining Association

Variances

GMA agrees that variances are a valuable and underutilized tool that allows for the necessary flexibility for states and

tribes to implement water quality standards given complex and sometimes competing goals for water quality and use. 

Response

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

8.d

8.d: Section A

Comment ID 0123-A1.001.016

Author Name: Chin Ryan

Organization: NA

Water Quality Standards

I understand the proposed rule to clarify when a variance may be issued and the requirements surrounding the

variance, whether it pertains to a specific discharger or an entire water body. There are situations that may present itself

where a time-limited variance to downgrade a water body or WQS as it relates to a specific discharger as opposed to a

permanent downgrading, allowing for discretion by the states and tribes to tailor the standard to a specific need. It

promotes the purpose of protecting the water body because it would still afford greater protections to the water body for

its designated use with the exception of sources given in the variance. Additionally, it would allow for flexibility in

designating a water body even when the designated use is not feasible currently but attainment of criteria for the

designated use is feasible and plausible in the reasonable future or due to circumstance change. As the variances are

subject to EPA approval and disapproval, are time-limited, are specific to certain pollutants, permittee, or water body or

water body segment, there is sufficient oversight to ensure that this exception would not swallow the rule and allows for

discretion when all the necessary requirements are met.

Response

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

8.d

8.d: Section A

Comment ID 0123-A1.001.018

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08/04/2015 05:01 PM EDT 2-1019
Author Name: Chin Ryan

Organization: NA

However, as variances should be a special exception to water quality standards and is outlined as such because they

are only granted due to states' or tribes' discretion and are subject to review of the EPA, they should only be granted in

exceptional circumstances and only as a means to achieve the end of meeting the designated use and water quality

standard. Even though variances may be used to provide time for the states and tribes to achieve management

practices for pollutant reductions to attain water body's designated use and associated criteria, they should be subject

to scrutiny by the EPA and not given deference. 

Response

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

8.d

8.d: Section B

5.h

Comment ID 0151-A1.001.009

Author Name: Tate Michael

Organization: Kansas Department of Health and Environment

3) Variances – Kansas supports having variances emerge as a regulatory management tool, provided the process to

develop variances is flexible and streamlined. As more complicated and difficult water quality criteria must be achieved,

the reality remains that certain facilities, sectors, activities or types of treatment cannot reliably attain those levels.

Variances create a holding area for those facilities to continue to reduce their pollutant discharges without vulnerability

to compliance citations. Nationwide, variances have not been widely used, chiefly because each variance has to be

adopted as a standalone water quality standard. With approval processes for standards becoming so drawn out, the

utility of variances as unique standards wanes. However, adoption of a solitary variance covering a class of facility

types or particular pollutants presents an opportunity for streamlined processing. EPA's effort in fostering this type of

application would be welcome. 

Response

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

8.d

8.d: Section A

8.d: Section C

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08/04/2015 05:01 PM EDT 2-1020
Comment ID 0178-A2.001.009

Author Name: Burnell Barry

Organization: Idaho Department of Environmental Quality

III. Water Quality Standard Variances

EPA's support of variances as a tool in easing compliance with water quality standards is important.

In general variances are useful and appropriate where time is needed to achieve water quality criteria where criteria are

difficult to meet. In other words, where criteria are generally achievable but where the path to achievement in a

particular setting or for a particular discharge(s) is uncertain. Where the difficulty is that the value of a criterion is not

achievable with existing technology in the foreseeable future, then the use of a variance is appropriate. 

Response

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

8.d

8.d: Section A

Comment ID 0203-A1.001.020

Author Name: Christman Jim

Organization: Hunton & Williams on behalf of Utility Water Act Group

VI. Variances

Variances from water quality standards are an important part of the water quality standards program, and utterly

necessary when, for example, an extremely stringent biology- based criterion is not achievable. They are desirable from

a public policy standpoint because they allow more stringent criteria to be set generally by offering an escape hatch in

cases where stringent criteria would cause hardship. It is probably for this reason that EPA says variances are

"underutilized."

Response

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

8.d

8.d: Section A

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08/04/2015 05:01 PM EDT 2-1021
Comment ID 0217-A2.001.022

Author Name: Hale Michelle

Organization: Alaska Department of Environmental Conservation

c. Potential uses for a variance 

One of the most obvious examples of when a variance would be appropriate is when the required technology to

address a particular criterion cannot meet the criterion. This is one of the leading hesitations and challenges to

implementation of revised human health criteria identified by several Region 10 states. 

ADEC requests clarification regarding how a variance would apply in establishing natural conditions. Natural conditions

are one of the six factors used to justify variances or reclassification of a use under 40 CFR 131.10(g). When existing

natural conditions limit use attainment, ADEC requests that variances be allowed to allow further excursion of the

criterion beyond the natural condition if uses can still be protected. 

EPA should include language in the final rule stating that seasonal variances are acceptable. A seasonal variance might

be appropriate in some cases, with the designated use and criterion only varying during part of the year while

maintaining full applicability during the remainder of the year.

Response

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

8.d

8.d: Section D

8.d: Section E

Comment ID 0227-A2.001.002

Author Name: Williams Christopher

Organization: AMERICAN RIVERS

Encouraging attainment of water quality

We agree with EPA that in certain cases, WQS variances may be useful by allowing incremental progress towards

achieving designated uses. Such an approach, when used appropriately, is preferable to modifying or downgrading

designated uses in cases where those uses cannot currently be met but could feasibly be met in the future. However,

we stress that WQS variances are only appropriate insofar as they are used to make clear and meaningful progress

towards attainment in a reasonable time frame. WQS variances should under no circumstances be used to let permit

holders indefinitely defer or delay meaningful progress towards attainment. EPA should review any request for a WQS

variance carefully to ensure that states and permit holders are making progress towards attainment.

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Response

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

8.d

8.d: Section A

8.d: Section F

8.d: Section G

8.f.i

Comment ID 0234-A2.001.024

Author Name: Andes Fredric

Organization: Federal Water Quality Coalition

V. VARIANCES

Under the WQS Regulation, States can adopt variances as one of their mechanisms for implementing water quality

standards. EPA is proposing to add a new section to its regulations to regulate and purportedly to encourage State

adoption of variances.

Variances are an extremely important regulatory tool for States to have available, and they will become even more

critical in the future as water quality requirements tighten and economic growth continues. States and EPA are

increasing their efforts to impose stringent water quality-based effluent limits in NPDES permits. In many cases -

particularly when criteria to meet "fishable/swimmable" uses apply - those limits will not be possible to attain. In some

cases, they are physically possible to meet, but only by incurring control costs that are outside of the financial capability

of the businesses or communities that would have to meet them. In other cases, it may be possible in the long-term to

meet the limits, but at the time that the permit is issued, there is simply no way to guarantee that they will become

attainable at some point in the future, in particular during the permit time-frame. In all of these situations, it would be

helpful to be able to issue variances, so that the sources are able to stay in compliance with their permits while they are

working to reduce their discharges toward the applicable standards.

Response

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

8.d

8.d: Section A

Comment ID 0235-A2.001.007

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08/04/2015 05:01 PM EDT 2-1023
Author Name: Lumley Babtist

Organization: Columbia River Inter-Tribal Fish Commission

4. Variances. Variances are useful in certain appropriate and limited circumstances, such as during dam removal or

other similar projects that cause water quality criteria violations for a short duration in exchange for long-term

improvement of water quality, movement of fish through the dams, and water body restoration. Contrary to the State of

Washington's assertions, long-term variances are both unnecessary and unwise. Too often, long-term variances are an

excuse for inaction when solutions are available to protect beneficial uses. 

Response

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

8.d

8.d: Section F

Comment ID 0239-A2.001.003

Author Name: Easterly Thomas

Organization: Indiana Department of Environmental Management

One example of an area where the retention of flexibility is critical for Indiana is in the ability to utilize variances,

particularly a streamlined variance process, to address complex situations where numeric water quality criterion cannot

be immediately met due to a lack of technology and resources available to address challenging pollutants like mercury.

IDEM's successful development and implementation of a streamlined mercury variance that allows for a practical and

strategic approach to the reduction of mercury in Indiana waters illustrates the value of rule language that

accommodates this type of variance. 

Response

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

8.d

8.d: Section A

Comment ID 0243-A2.001.011

Author Name: Daniels Zane

Organization: Ohio Coal Association

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08/04/2015 05:01 PM EDT 2-1024
Variances (Section 131.14)

Ohio Coal generally agrees with USEPA that variances are a valuable tool that gives states the flexibility to implement

water quality standards given complex and sometimes competing goals for water quality and use.

Response

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

8.d

8.d: Section A

Comment ID 0251-A2.001.016

Author Name: Wigal Jennifer

Organization: Oregon Department of Environmental Quality

Applicability of variances for new discharges

The preamble should be clear that certain types of new dischargers are eligible to receive a variance.

DEQ generally agrees with the perspective that new dischargers to a waterbody should be able to mitigate and

implement compliance strategies to meet all applicable water quality standards before discharging to a waterbody;

however, there may be circumstances in which facilities without currently effective NPDES permits should be eligible for

a variance based on overall social or environmental benefits. For example, EPA should consider allowing new

discharges that

• are associated with a water quality or habitat restoration project requiring a NPDES permit may cause short term

water quality exceedances, but would result in long term water quality or habitat improvement benefits, or

• mitigate a threat to public health or welfare (e.g., a new wastewater treatment facility that mitigates septic system

contamination)

Including these types of new dischargers as eligible to receive a variance under these circumstances is reasonable due

to specific circumstances as well as the additional requirements that are already applicable to these discharges. First,

any activity that proposes to discharge a new or increased load (beyond loads presently allowed in an existing permit)

or that will lower the water quality of a water body identified as a high quality water is subject to an antidegradation

review. In addition, the Pinto Creek decision would generally not allow any new pollutant discharges to a waterbody

already impaired by that pollutant (Certain exceptions apply, for example, if a TMDL has been established and there is

sufficient assimilative capacity). These additional requirements, among others, are applicable to any new discharger

and may further limit the universe of new dischargers eligible for a variance in a particular situation. 

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Response

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

8.d

8.d: Section H

8.c

Comment ID 0261-A2.001.012

Author Name: Bartlett Drew

Organization: Florida Department of Environmental Protection

V. Proposed Revisions to § 131.14 (Water quality standards variances).

We generally support EPA efforts to clarify the requirements for variances, and acknowledge that EPA has encouraged

States to use variances. However, we do not think that the proposed revisions provide the flexibility needed to truly

incentivize their use. To the contrary, EPA's regulations appear to inadvertently encourage a permanent change in a

water body's designated use over a temporary variance from a water quality criterion.

Both a permanent change to a water body's designated use and a temporary variance require a demonstration that at

least one of the factors listed in § 131.10(g) applies. For a permanent change to a water body's designated use, the

process ends there. For a temporary change, EPA's regulations set forth a series of additional requirements, including a

10-year limit to the variance, the setting of the highest attainable interim use and interim numeric criterion, or interim

numeric effluent condition. As such, obtaining a temporary variance from a water quality criterion appears more onerous

than obtaining a permanent change to a water body's designated use. This lack of incentives has been reflected by the

fact that very few permittees have decided to seek variances due to the high hurdle represented by the § 131.10(g)

factors and the overall administratively burdensome process. If EPA believes that the short-term relief of a variance is

preferable to a permanent change, then EPA needs to develop less stringent thresholds to obtain a variance and a less

burdensome administrative process, including a streamlined renewal process. 

Response

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

8.d

8.d: Section A

8.d: Section C

8.d: Section I

8.E - VAR - COMPLIANCE SCHEDULES

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08/04/2015 05:01 PM EDT 2-1026
Comment ID 0189-A1.001.026

Author Name: Margaret Watkins Nancy Schuldt

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa

Environmental Department

EPA writes that permit compliance schedules cannot be used to "provide time to address uncertainty regarding the

appropriateness or attainability of the WQS"; states should instead use a variance. This policy is consistent with the

May 10, 2007 Hanlon Memo, and is appropriate. If a state intends to put off meeting WQS to allow WQ studies or

perform a UAA, it should have to grant a variance, which is reviewable by EPA, instead of a compliance schedule,

which is not normally reviewable by EPA. 

Response

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

8.e

8.e: Section A

Comment ID 0195-A1.001.027

Author Name: Norton Ken

Organization: National Tribal Water Council

EPA writes that permit compliance schedules cannot be used to "provide time to address uncertainty regarding the

appropriateness or attainability of the WQS"; states should instead use a variance. This policy is consistent with the

May 10, 2007 Hanlon Memo, and is appropriate. If a state intends to put off meeting WQS to allow WQ studies or

perform a UAA, it should have to grant a variance, which is reviewable by EPA, instead of a compliance schedule,

which is not normally reviewable by EPA. 

Response

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

8.e

8.e: Section A

8.f.i

Comment ID 0214.001.003

Author Name: Welcker Zach

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08/04/2015 05:01 PM EDT 2-1027
Organization: Kalispel Tribe of Indians

5. Prohibit the use of a compliance schedule to meet interim WQBELs in an NPDES permit derived from a variance.

Thank you for considering these comments. We hope that EPA appreciates that the Kalispel Tribe cannot adequately

protect its sovereign waters and its people from off-Reservation contamination without the assistance of its trustee.

Response

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

8.e

8.e: Section A

8.f.i

Comment ID 0230-A1.001.027

Author Name: Ettinger Albert

Organization: One of the counsel for the Environmental Law and Policy Center et al.

Although the discussion could be clearer, EPA writes that permit compliance schedules cannot be used to "provide time

to address uncertainty regarding the appropriateness or attainability of the WQS." States should instead use a variance.

(78 FR at 54535) This is consistent with the Hanlon Memo of May 10, 2007, and is appropriate. If a state intends to put

off meeting WQS to allow WQ studies or perform a UAA, the state should have to grant a variance (reviewable by EPA)

instead of a compliance schedule (not normally reviewable by EPA). We would add that the state or the discharger(s)

concerned must properly fund and promptly undertake the necessary studies and complete them as quickly as possible.

Further, interim best management practices should be imposed as a condition of obtaining the variance. 

Response

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

8.e

8.e: Section A

8.e: Section B

Comment ID 0232-A2.001.005

Author Name: Grayum Mike

Organization: Northwest Indian Fisheries Commission

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EPA should clarify that compliance tools must provide a path to clean water, not an exemption to meeting standards.

In Washington, proposed state rules authorizing variances and compliance schedules have offered extensive timelines

(up to 40 years) for NPDES permitees to remain non-compliant with meeting WQS. With the exception of how long

NPDES permitees can be noncompliant, little direction has been provided as to what precise criteria authorize their use,

when these so-called tools can be applied, and how they will in fact operate to ultimately bring NPDES permitees into

eventual compliance with the CWA. This general lack of dialogue and direction exemplifies the need for the EPA to

provide clear direction on when the tools can be applied (if at all), for how long, and how they will operate to achieve

clean water. Simply leaving the matter of addressing CWA non-compliance to state discretion will neither implement the

Act, nor achieve the level of resource protection needed to protect the tribes' rights.

Response

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

8.e

8.e: Section C

8.f.i

8.g.iii

Comment ID 0232-A2.001.007

Author Name: Grayum Mike

Organization: Northwest Indian Fisheries Commission

Variances and compliance schedules must maintain protection of designated uses, and therefore EPA needs to provide

clear direction that this should occur.

It remains unclear from EPAs proposed rules how compliance schedules and variances will operate to bring waters and

NPDES permitees into compliance with state standards. For example, proposed rules provide that variances need to

continue to" reflect the underlying use," but do not provide clear direction on what this means. It is unclear how

authorizing a less protective, albeit temporary numeric criteria - originally established to protect the use - can comply

with the CWA, let alone "reflect the use." Ultimately, the charge of the CWA is to protect the designated uses, and § 303

sets the requirement to establish standards that accomplish this task. This concept of reflection does little to provide

clear direction to the states to ensure that variances actually result in WQS that protect designated uses and/or a

process to achieve attainment of permanent (as opposed to temporary variance) standards. 

Response

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

8.e

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08/04/2015 05:01 PM EDT 2-1029
8.e: Section C

8.f.i

Comment ID 0255-A2.001.010

Author Name: Quaempts Eric

Organization: Confederated Tribes of the Umatilla Indian Reservation

Variances

Variances should also be viewed with caution. They should not be a long-term, indefinite excuse to escape compliance

with CWA mandates. The CTUIR DNR recognizes that some dischargers may not be able to achieve compliance

immediately. Compliance plans and schedules are a method that should be explored to assist them in reaching

compliance over the permit time frame (or less), obviating the need to weaken water quality standards themselves.

Weakening standards would likely be counter-productive, serving as a disincentive to effectively addressing water

quality problems in a timely manner. 

Response

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

8.e

8.e: Section D

8.f.i

Comment ID 0268-A2.001.025

Author Name: Bell Nina

Organization: Northwest Environmental Advocates

We agree that there are instances where variances can and should play a role. Unfortunately, there are instances

where treatment technology does not yet exist that is able to allow permitting agencies and permittees to rely solely on

compliance schedules with their effluent-certain/date-certain level of commitment. On the other hand, the use of

variances runs a very significant risk of leading the country to a point where not meeting water quality standards is the

acceptable norm and variances the rule rather than its exception. The problem is this: multiple sources, past and

present, have caused significant and widespread impairments. Criteria are becoming increasingly more stringent as

scientific understanding grows, and monitoring technologies continue to improve. This results in increasing stringency,

in theory, in NPDES permit limits, an outcome that is wholly consistent with the Act's goals. It also causes some short

term problems for permittees and regulators and likely some longer term problems as well. For these reasons variances

may be a better fit than compliance schedules, although the latter should always be the "tool" of choice where delayed

compliance is contemplated. 

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Response

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

8.e

8.e: Section C

8.e: Section D

8.f.i

Comment ID 0268-A2.001.029

Author Name: Bell Nina

Organization: Northwest Environmental Advocates

The discussion in the preamble concerning the use of variances and compliance schedules needs more definition.

Instead of being ambiguous ("variances can be appropriate" and a "compliance schedule . . . may be appropriate"), id.

(emphasis added), EPA should be more clear and decisive. In fact, the logic of this paragraph should be reordered. A

compliance schedule is appropriate as EPA describes. When an effluent-certain/date-certain outcome cannot be

predicted with sufficient certainty a variance is appropriate. In all circumstances where a compliance schedule can be

used, it must be used in lieu of a variance. It would be helpful for EPA to spell out the relationship between these two

"tools" for permittees to avoid meeting water quality standards in light of EPA's strong promotion of the use of variances

and in light of the adoption by an increasing number of states of criteria that are difficult if not impossible to immediately

meet. As it stands, EPA has not made clear that a compliance schedule is a better solution than a variance if it can be

used.

Response

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

8.e

8.e: Section E

8.F - VAR - APPLICABILITY

Comment ID 0268-A2.001.053

Author Name: Bell Nina

Organization: Northwest Environmental Advocates

Edits above reflect removal of waterbody variances and unnecessary language concerning postvariance changes to

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08/04/2015 05:01 PM EDT 2-1031
uses and criteria. Also removed is applicability to 401 certifications with the exception of 401 certifications that are

linked to NPDES permits. Added is protection for existing uses which EPA has omitted despite its being the "absolute

floor" of water quality, and a requirement that permittees must effect control of pollution sources within their authority

(done under a compliance schedule) and are prohibited from obtaining a variance if the pollution problem could be

solved in that way (e.g., enhancement of pretreatment programs, municipal nonpoint source controls). 

Response

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

8.f

8.e

8.f.i

8.f.ii

8.g.v

8.F.I - VAR APP - SCOPE

Comment ID 0123-A1.001.019

Author Name: Chin Ryan

Organization: NA

As variance's are time-limited, I support EPA's overall position during review of variances they be subjected to thorough

reevaluation and public review, specifically going through 1) whether conditions have changed such that the designated

use and criterion are now attainable; 2) whether new or additional information has become available to indicate that the

designated use and criterion are not attainable in the future; or 3) whether feasible progress is being made toward the

designated use and criterion and that additional time is needed to make further progress.

Response

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

8.f.i

8.f.i: Section E

Comment ID 0131-A1.001.015

Author Name: Rager David

Organization: Sanitation District Number 1 of Northern Kentucky

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Comment 7 - The inclusion of § 131.14 greatly expands federal regulation of variances and hampers a state's ability to

develop and implement water quality standards. Variances are critically important regulatory tools that states and

permittees must rely on when designated beneficial uses cannot be attained with existing technologies and/or financial

resources. SD1 is concerned that the language added in § 131.14 creates new, detailed, unnecessary, and

unsupported variance requirements that encroach into water quality standard implementation and will limit a state

agency's ability to develop and apply standards in a manner that is appropriate for their state.

For example, proposed language in § 131.14(b)(2) and § 131.14(d) requires states to submit a formal demonstration to

EPA justifying both the initial need and the renewal for a water quality standards variance. SD1 notes that EPA has the

authority to approve or disapprove state variance requirements when they are included into NPDES permits. Therefore,

states should not be required to gain EPA approval before granting or renewing a variance, as this will cause delays in

the issuance of NPDES permits and introduce the potential for conflict between state and federal regulators. Moreover,

the proposed changes suggest that states will be required to adopt formal rules governing the procedures by which

variances will be reviewed and issued, creating a new burden on states to have these rules approved by EPA.

Under these proposed rule changes, Kentucky and other states would also likely be required to adopt rules, subject to

EPA approval, which would spell out the process by which 401 certifications would be issued. This will create delays

and possible conflicts with the issuance of currently approved nationwide permits, particularly Nationwide 12 (Utility

Lines and Crossings). 

Response

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

8.f.i

8.f.i: Section A

8.f.i: Section F

3.a

8.f.ii

8.i

Comment ID 0133-A2.001.017

Author Name: Phillips Sanford

Organization: Louisiana Department of Environmental Quality

e. LDEQ strongly objects to removal of flexibility in state's ability to grant waivers due to extreme events (such as

temporary relief during droughts and natural disasters). 

Response

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

8.f.i

8.f.i: Section F

Comment ID 0151-A1.001.015

Author Name: Tate Michael

Organization: Kansas Department of Health and Environment

Water Body Variance

EPA introduces the concept of a water body variance which it describes as not limited to specific discharger(s). A

condition of a water body variance is identification and documentation of any cost-effective and reasonable BMPs for

nonpoint sources contributing the same pollutant and available for water body wide implementation. We are not sure

what the point of such a sweeping variance might be. It seems that the expectations of such a variance are better

described within the context of a TMDL. It also seems the objective of such a variance might be better served by

establishing a site-specific criterion. Since utilization of variances is a relatively new endeavor, we think it would be

better to just concentrate on using variances for individual facilities or groups of facilities than to experiment with the

concept of applying a variance to an entire water body. After the States and EPA have some experience in using

variances, this concept of a water body variance can be re-introduced. 

Response

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

8.f.i

8.f.i: Section C

Comment ID 0153-A2.001.015

Author Name: Bishop Jonathan

Organization: California State Water Resources Control Board

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

A. EPA proposes expanded WQS authority over a state's variance policy.

The State Water Board is concerned that the proposed provisions at section 131.14 involving the submission,

supporting documentation, variance term, and renewal criteria improperly extend EPA's approval authority over matters

in which states should continue to be afforded greater discretion and flexibility. Currently, section 131.13 provides that

states may include as a part of their WQS, policies generally affecting their implementation, including a variance. EPA

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now proposes to add new regulatory provisions at section 131.14, which extend its approval authority beyond a state's

policies affecting its standards. (78 Fed. Reg. 54544-54545.) By adding section 131.14, EPA proposes extensive

substantive submission requirements on the development of a variance, thereby broadening its approval authority

beyond a state's variance policy to approval authority over the specific contents of each variance a state adopts. While

those new and detailed requirements would achieve national uniformity for WQS variance implementation, EPA's

review and approval authority should be limited to the contents of a state's variance policy, as currently provided by

section 131.13, rather than over the specific conditions in every specific variance. The time-limited nature of a WQS

variance makes it unnecessary to treat the implementation of an approved variance policy as a separate standards

action. Rather, a state's approval of a specific variance in accordance with an approved variance policy is analogous to

the issuance of a permit that includes a compliance schedule authorized by a compliance schedule policy in the state's

WQS. EPA can achieve national uniformity through its oversight of states' permitting and TMDL programs, its authority

under section 404(q) of the Clean Water Act, and its review of the underlying variance policies.

At a minimum, states should have the ability to adopt categorical variances that do not describe specific dischargers,

pollutants or discharge locations. For example, a policy could authorize short-term or seasonal variances from certain

WQS as necessary to implement control measures for resource or pest management or to comply with the Safe

Drinking Water Act or similar state laws. The requirement to obtain EPA WQS approval of each application of the

variance in a NPDES permit would significantly hamper the states' ability to permit time-critical public health and

resource protection activities.

State Water Board's proposed revision to 131.14: "A water quality standards variance (WQS variance) is a time-limited

designated use and criterion for a specified pollutant(s), permittee(s), and/or water body or waterbody segment(s) that

reflect the highest attainable condition during the specified time period. [begin strikeout] WQS variances are water

quality standards subject to EPA review and approval or disapproval and must be consistent with this section. [end

strikeout] Any such WQS variances adopted after [effective date of the final rule] must be consistent with this regulatory

section."

Response

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

8.f.i

8.f.i: Section A

8.f.i: Section B

8.a

8.b

8.c

8.m

9.b

Comment ID 0157-A1.001.015

Author Name: Harpole Chad

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Organization: Kentucky Chamber of Commerce

However, as variances are a matter of state discretion, there should not be a mandate for the variance to be approved

by EPA in advance for permittee specific variances. Rather, the NPDES permitting process provides an opportunity for

EPA to object to any permit, which would include any variance that is established for the discharger. 

Response

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

8.f.i

8.f.i: Section A

8.m

Comment ID 0158-A1.001.025

Author Name: Goodmann Peter

Organization: Kentucky Division of Water

[Copied regulatory text and made no suggested edits.]

(a) Applicability:

(1) All applicable WQS not specifically addressed by the WQS variance remain applicable. 

Response

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

8.f.i

8.f.i: Section D

Comment ID 0165-A2.001.017

Author Name: Gunderson Steven

Organization: Colorado Department of Public Health and Environment

16. Variance Provisions - Waterbody Variances

EPA asked for comments on the proposal to include provisions that address waterbody variances. Colorado does not

support expansion of the variance concept to an entire waterbody at this time. Other existing means (for example: siteChapter 2 - Comment Documents Variances

08/04/2015 05:01 PM EDT 2-1036
specific criteria with an expiration date) would work for the waterbody examples. The basis for a variance facilityspecific economic constraints and it is hard to see how that works for an entire geographic location (waterbody).

Colorado would rather see EPA make progress on sector-based variances than struggle with providing guidance and

the review of applications for waterbody variances. 

Response

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

8.f.i

8.f.i: Section C

Comment ID 0166-A2.001.025

Author Name: Goodmann Peter

Organization: Kentucky Division of Water

[Copied regulatory text and made no suggested edits.]

(a) Applicability:

(1) All applicable WQS not specifically addressed by the WQS variance remain applicable.

Response

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

8.f.i

8.f.i: Section D

Comment ID 0178-A2.001.011

Author Name: Burnell Barry

Organization: Idaho Department of Environmental Quality

Because a variance is in our view discharger specific, and thus does not change the water quality expectations for the

waterbody as a whole or for other dischargers, we do not see such a variance as a change to water quality standards.

Requiring justification for a variance, subjecting it to public review, and submitting to EPA for their approval are all

reasonable. However, we do not believe any of those steps requires rulemaking to modify underlying criteria that are

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being varied from. Variances can be done administratively, and in many respects must be done administratively if they

are to be timely. 

Response

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

8.f.i

8.f.i: Section A

Comment ID 0180-A2.001.015

Author Name: Hobson Chris

Organization: Southern Company

3. Variances

Southern Company supports EPA's clarifications regarding when and how water quality variances may be used. 

Response

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

8.f.i

8.f.i: Section A

Comment ID 0180-A2.001.017

Author Name: Hobson Chris

Organization: Southern Company

We also support the concept of discharger-specific, multi-discharger, and watershed-wide variances. 

Response

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

8.f.i

8.f.i: Section C

Comment ID 0186-A1.001.011

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08/04/2015 05:01 PM EDT 2-1038
Author Name: Claff Roger

Organization: American Petroleum Institute

• API supports the proposed provisions at 40 CFR 131.14 for WQS variances including single and multiple discharger

variances and water body variances. 

Response

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

8.f.i

8.f.i: Section C

Comment ID 0186-A1.001.027

Author Name: Claff Roger

Organization: American Petroleum Institute

API supports the proposed provisions at 40 CFR 131.14 for WQS variances including single and multiple discharger

variances and water body variances.

The proposed regulations for WQS variances are clear and provide the necessary alternative approaches for states to

allow the tailoring of variances to address specific situations where the designated uses and/or numeric criteria cannot

currently be achieved and it is impractical to set a firm schedule for when they can be achieved. The applicability,

submission requirements, and implementation in permits of WQS variances are clearly described in the proposed

language.

Response

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

8.f.i

8.f.i: Section A

Comment ID 0189-A1.001.021

Author Name: Margaret Watkins Nancy Schuldt

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa

Environmental Department

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Variances should never be an option for new or expanding discharges; that concept is completely contrary to the

requirements of the CWA and existing EPA regulation. 

Response

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

8.f.i

8.f.i: Section F

8.f

Comment ID 0190-A1.001.009

Author Name: Wagener Fritz

Organization: NA

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

131.14(a)(2)(i) and (2)(ii): [begin strikeout] "(2) (i) Where a state adopts a WQS variance, the State regulations must

continue to reflect the underlying designated use and criterion unless the State adopts and EPA approves a revision to

the underlying designated use and criterion consistent with § 131.10 or § 131.11.

(ii) The interim requirements specified in the WQS variance are in effect during the term of the WQS variance and apply

for CWA section 402 permitting purposes and in issuing certifications under section 401 of the Act for the permittee(s),

pollutant(s), and/or water body or water body segment(s) covered by the WQS variance. For these limited purposes, the

interim requirements will be the standards applicable for purposes of the CWA under 40 CFR 131.21 (c)-(e).[end

strikeout]"

131.14(a)(2)(ii) – The intended purpose of including 131.14(a)(2)(ii), based on EPA's explanation in the preamble to the

proposed rule, is in direct opposition to, and conflicts with, the requirements of 303(c)(3) of the Act, which states:

If the Administrator, within sixty days after the date of submission of the revised or new standard, determines that such

standard meets the requirements of this Act, [begin new text] such standard shall thereafter be the water quality

standard for the applicable waters of that State. [end new text] (emphasis added)

The proposal turns this statutory provision on its head by establishing that a standard, which has been approved by

EPA as meeting the requirements of the Act, applies in the implementation of certain provisions of the Act, but does not

rise to the same legal status for other provisions of the Act. The proposal already includes a specific provision that

requires that a variance WQS must be "time-limited", and that provision is sufficient, by itself, to prevent the application

of the terms of a variance WQS to a point in time that is outside the temporal limits of a variance WQS.

In addition, 131.21(d) refers to provisions of state WQS "once EPA approves that water quality standard":

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When do I use the applicable water quality standards identified in paragraph (c) above? Applicable water quality

standards for purposes of the Act are the minimum standards which must be used when the CWA and regulations

implementing the CWA refer to TMDLs under section 303(d), developing NPDES permit limitations under section

301(b)(1)(C), evaluating proposed discharges of dredged or fill material under section 404, and in issuing certifications

under section 401 of the Act.

The 131.21 (d) provision also serves to preclude EPA from utilizing a bifurcated approach for implementing WQS by

allowing the most recently adopted and approved WQS for a water body (or a portion of a water body) to be used for

one purpose of the Act and a previously adopted and approved – but no longer in effect for purposes of the Act – WQS

for the same waters of the U.S. to be used for another use of the Act.

131.14(a)(2)(i) – This provision is also unnecessary due to the current provisions of 131.21(c)(2):

A State or authorized Tribe adopts a water quality standard that goes into effect under State or Tribal law on or after

May 30, 2000 then once EPA approves that water quality standard, it becomes the applicable water quality standard for

purposes of the Act until and unless EPA has promulgated a more stringent water quality standard for the State or Tribe

that is in effect in which case the EPA promulgated water quality standard is the applicable water quality standard for

purposes of the Act until EPA withdraws the Federal water quality standard.

This current provision already states that a standard does not become effective for purposes of the Act until EPA

approves the standard. In addition, the proposal seems to dictate what a state-adopted regulation must "reflect" prior to

an EPA approval action on a variance WQS. If the intent is to include a federal regulatory provision as to what provision

of WQS will be in effect for purposes of the Clean Water Act in the interim time between state adoption of a variance

WQS and EPA approval of the variance WQS, this provision should be re-written to reflect appropriate authorities of the

federal WQS program.

Response

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

8.f.i

8.f.i: Section D

8.f.ii

Comment ID 0194-A1.001.015

Author Name: Stonestreet Robert

Organization: West Virginia Chamber of Commerce

Certainly, the circumstances which may necessitate a variance are varied, both as to dischargers and stream

conditions, and these factors likely vary greatly by state. In the absence of some demonstrated need for a "one size fits

all" regulation such as EPA has proposed, it would appear that state flexibility to respond to particular needs, coupled

with timely and appropriate review by EPA, will promote the use of variances where warranted as much or more so than

08/04/2015 05:01 PM EDT 2-1041

Chapter 2 - Comment Documents Variances
codification of these specific EPA-generated concepts and requirements.

Response

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

8.f.i

8.f.i: Section A

8.f.i: Section E

8.b

Comment ID 0195-A1.001.022

Author Name: Norton Ken

Organization: National Tribal Water Council

Variances should never be an option for new or expanding discharges; that concept is completely contrary to the

requirements of the CWA and existing EPA regulation. 

Response

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

8.f.i

8.f.i: Section F

Comment ID 0197-A1.001.015

Author Name: Garrison Naoh

Organization: Natural Resources Defense Council

Allowance for Variances Should be Substantially Limited In Order to Meet Water Quality Goals 

Variances under the Clean Water Act allow for states to temporarily depart from requirements to meet WQS and other

Clean Water Act obligations. The Proposed Rule would add provisions to 40 C.F.R. § 131.14 that, while intended to

address "confusion, inconsistency, and mixed interpretations about how, when, and where variances may be used

appropriately," (78 Fed. Reg. at 54,531), are also likely to facilitate and expand use of variances for WQS

implementation. Although establishing federal regulations for variance procedures may promote clarity and consistency

among the states, as a general matter the approach of using variances at all will delay improvements in water quality

and contradicts the express purpose of the Clean Water Act. 

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We strongly urge EPA to refrain from expanding use of this practice. 

Response

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

8.f.i

8.f.i: Section A

8.f.i: Section E

8.b

8.c

Comment ID 0200-A1.001.011

Author Name: Covar Zak

Organization: Texas Commission on Environmental Quality

The difference between these two types of variances is discussed in the preamble, but not sufficiently addressed in the

proposed regulation. Because of fundamental differences in applying these two types of variances, TCEQ already has

separate variance provisions in its TSWQS for individual permits (termed "temporary variances") versus water body

variances (termed "temporary standards").

A variance for an individual permit is usually intended to allow a temporary period to review water quality standards

(three years, for example, in the TSWQS). It is appropriately applied when a calculated water quality-based effluent limit

(WQBEL) (at critical condition flows and maximum allowable discharge) is not reasonably achievable and when

preliminary evidence indicates that the water quality standard should be reviewed. In practice, it is more similar to a

permitting compliance period than to a water body variance. Like a permitting compliance period, a variance for an

individual permit should not constitute a new temporary designated use or instream criterion. 

Response

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

8.f.i

8.f.i: Section B

8.f.i: Section C

8.c

Comment ID 0201-A1.001.029

Author Name: Godfrey Mike

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Organization: Alabama Power

Requiring that variances also be evaluated as a part of States' triennial reviews seems redundant and unnecessary, as

well, especially given that EPA has similarly recognized the "broad discretion" States have to carry out their triennial

reviews and the actions they take in response to such reviews. 

Response

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

8.f.i

8.f.i: Section E

8.g.iii

Comment ID 0203-A1.001.022

Author Name: Christman Jim

Organization: Hunton & Williams on behalf of Utility Water Act Group

UWAG supports allowing variances for single dischargers, multiple dischargers, and whole waterbodies. See 78 Fed.

Reg. 54,532 col. 2-3.

But at the same time, EPA proposes changes that will limit the use of variances and increase the burden and cost of

using them. All variances would have to be reviewed and approved by EPA (proposed § 131.14). EPA says this is its

"established position" and "practice" (78 Fed. Reg. 54,531 col. 3). But we believe the proposed § 131.14 intrudes too

much on the states' authority to grant variances. If ever there were an area in which states should have discretion, the

granting of variances based on local conditions is one such. Section 131.14 should not be included in the final rule. 

Response

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

8.f.i

8.f.i: Section A

8.f.i: Section C

8.f.i: Section E

3.a

8.b

8.m

12.c

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Comment ID 0206-A1.001.019

Author Name: Foster Kelly

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations

If EPA proceeds with the Proposed Rule, in addition to the other long-standing variance requirements, EPA should limit

the scope of variances to "the practice of temporarily downgrading the WQS as it applies to a specific discharger rather

than permanently downgrading an entire water body or waterbody segment(s)" and it must require that the variance be

adopted consistent with the substantive and procedural requirements for permanently downgrading a designated use,"

i.e. based on the factors in 40 C.F.R. §131.10(g).

Response

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

8.f.i

8.f.i: Section A

8.f.i: Section C

8.f.i: Section F

5.e

5.g

8.c

Comment ID 0207-A1.001.033

Author Name: Bodine Susan

Organization: American Farm Bureau Federation et al.

To control state uses of variances, EPA is proposing to add a new section 131.14 to its WQS regulations, declaring

variances to be "water quality standards subject to EPA review and approval or disapproval." This proposal is

inconsistent with the EPA WQS Handbook § 5.3 and the current WQS regulations. Under the Handbook, state variance

procedures, not variances themselves, are part of state water quality standards regulations. Under current § 131.13,

policies affecting the application and implementation of WQS, including variances, are subject to EPA approval, not the

individual implementation of those policies. Further, as set forth plainly in the first passage of the Star-Kist opinion

quoted above, EPA has no authority over the implementation of WQS, including whether and how variances are used.

EPA's authority to approve variance procedures is already provided in § 131.13. Accordingly, no new regulatory

authority is needed. If, however, EPA proceeds with its variance proposal, it should address only state procedures for

adopting variances and recognize that implementation of WQS, through individual variances, are matters that are left to

states.

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Response

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

8.f.i

8.f.i: Section A

8.f.i: Section F

8.c

Comment ID 0215-A1.001.019

Author Name: Callaway Casi

Organization: Mobile Baykeeper

If EPA proceeds with the Proposed Rule, in addition to the other long-standing variance requirements, EPA should limit

the scope of variances to "the practice of temporarily downgrading the WQS as it applies to a specific discharger rather

than permanently downgrading an entire water body or waterbody segment(s)" and it must require that the variance be

adopted consistent with the substantive and procedural requirements for permanently downgrading a designated use,"

i.e. based on the factors in 40 CFR §131.10(g).

Response

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

8.f.i

8.f.i: Section A

8.f.i: Section C

8.f.i: Section F

5.e

Comment ID 0217-A2.001.018

Author Name: Hale Michelle

Organization: Alaska Department of Environmental Conservation

 5. Water Quality Standards Variances 

ADEC supports EPA's effort to provide succinct language at 40 CFR § 131.14. Inconsistency between EPA regions, as

well as between EPA and states, has created regulatory uncertainty regarding when this tool can be applied, the level

of detail required to justify a variance, and EPA interpretation whether a variance is appropriate for a particular situation.

ADEC recognizes the utility of such language when considering approval of a variance but requests that EPA recognize

that the burden of proof must not exceed the benefits of the variance process. There are now examples of processes

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that are streamlined and allow for the adoption of a variance for a "class" or type of facility or pollutant. The streamlined

process is attractive to a growing number of states as WQS become more complex and stringent. 

The final rule should include language stating that, while the authority for variances must be in WQS regulation, site

specific implementation of a variance may be authorized through either a regulation amendment or through a CWA

section 402 or 404 permit or 401 certification, as long as the variance is submitted to EPA for approval. ADEC believes

variances are more likely to be used if implemented by a state administrative process.

Response

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

8.f.i

8.f.i: Section A

8.f.i: Section B

8.f.i: Section C

8.f.i: Section E

8.d

8.f.ii

Comment ID 0218-A1.001.005

Author Name: Elardo Pam

Organization: King County Department of Natural Resources and Parks

• Allow fully delegated CWA states (such as Washington) to issue variances without requiring the EPA to approve each

variance

Response

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

8.f.i

8.f.i: Section A

Comment ID 0218-A1.001.013

Author Name: Elardo Pam

Organization: King County Department of Natural Resources and Parks

King County supports the concept that fully delegated CWA states (such as Washington) be given authority to issue

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variances without requiring the EPA to approve each variance.

State delegation could be performed responsibly if the State sought and obtained EPA approval of the framework

(some may call it a 'recipe') for Water Body-Specific or Multi-Discharger variances. Such a variance or framework would

articulate details such as the components to be implemented, variance period, and the approach to gauging progress

on achieving performance targets. The EPA could approve particular variance types or frameworks, giving the state the

authority to issue individual variances meeting these elements. If such a process was available, the State would

evaluate compliance with the variance conditions through successive NPDES permits and could determine if an

extension of the variance were warranted. All would be done with transparent public process and input through the

NPDES program and the EPA would always retain their programmatic oversight authority. We do not believe there is

added benefit by adding federal review when the State process addresses the requirements of variance approval

directly. The EPA will always retain its oversight function of delegated programs and it is the EPA's intention to

encourage the appropriate use of this tool. Continuing to hamper its use by duplicative and burdensome review slows

down this process, and will not accomplish this goal. This is an administrative efficiency that would move agencies

towards CWA compliance more effectively. 

Response

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

8.f.i

8.f.i: Section A

8.f.i: Section C

8.f.i: Section E

Comment ID 0236-A2.001.023

Author Name: Weigel Brian

Organization: Wisconsin Department of Natural Resources

Applicability of Variances

WDNR supports the following clarifications:

• States or tribes may pursue multiple-discharger variances when the designated use and criterion are unattainable as it

applies to multiple permittees because they are all experiencing challenges in meeting their WQBELs for the same

pollutant for the same reason, regardless of whether or not they are located on the same water body, so long as the

variance is consistent with the CWA and implementing regulations.

• States and tribes can pursue waterbody variances as an alternative to a designated use change for the waterbody so

long as the variance is consistent with the CWA and implementing regulation. The state or tribe can implement adaptive

management approaches working with both point sources and nonpoint sources on waterbody/watershed scale

activities to achieve pollutant reductions.

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• Variances do not replace designated uses. Rather, states or tribal regulations must continue to reflect the underlying

designated use and criterion unless the state or tribe adopts, and the EPA approves, a revision to the designated use

and criterion as consistent with §131.10 or §131.11. 

Response

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

8.f.i

8.f.i: Section C

8.f.i: Section D

8.f.i

Comment ID 0248-A2.001.018

Author Name: Jellerson David

Organization: Mosaic Fertilizer LLC

Second, the variance language allows states to grant a variance only where the permittee can achieve the "highest

attainable condition" of the water body. See proposed § 131.14(b)(1)(ii)(B). It is unclear whether EPA intends this

phrase to have the same meaning as HAU, but this phrase is subjective, which again may foment confusion and

wasteful litigation. The language should be clarified to state that states have discretion to determine what constitutes

the "highest attainable use."

Response

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

8.f.i

8.f.i: Section F

8.c

Comment ID 0255-A2.001.011

Author Name: Quaempts Eric

Organization: Confederated Tribes of the Umatilla Indian Reservation

Variances should continue to be brief, with a specific expiration date and requiring periodic proof that reasonable

progress is being made to meet water quality standards. They should apply only to the smallest possible portion of a

water body, and only to a single or very small group of point sources. A variance should be specific to the discharger,

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the water body, and the pollutant. They should not be allowed for an entire water body or an entire region or state.

Dischargers granted variances and the associated water bodies should be publicly identified. Variances extending

beyond the permit term would be extremely suspect, and subject to close and skeptical scrutiny. Such scrutiny should

also accompany any request for renewal. A variance should not be a tool or ploy for authorizing new or expanded

discharges to water quality-limited water bodies. 

Response

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

8.f.i

8.f.i: Section C

8.f.i: Section F

8.g.iii

Comment ID 0257-A1.001.018

Author Name: Harpole Chad

Organization: Kentucky Chamber of Commerce

Water Quality Standard Variances -- 40 CFR 131.14

The Chamber supports EPA's efforts to expressly recognize the availability of water quality standards variances in

newly proposed 40 CFR 131.14. EPA has long recognized that states have discretion to grant variances to water quality

standards where natural, manmade, or economic factors prevent a water quality standard in a waterbody from currently

being attained.

However, as variances are a matter of state discretion, there should not be a mandate for the variance to be approved

by EPA in advance for permittee specific variances. Rather, the NPDES permitting process provides an opportunity for

EPA to object to any permit, which would include any variance that is established for the discharger.

Response

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

8.f.i

8.f.i: Section A

3.a

Comment ID 0268-A2.001.030

Author Name: Bell Nina

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Organization: Northwest Environmental Advocates

The Scope of a Variance

EPA states that variances are subject to 40 C.F.R. § 131.20(a) and thus must be reviewed on a triennial basis. We are

not aware of any state that (1) revises its standards on a triennial basis instead of a longer period of time; (2) actually

reviews its standards, as opposed to revising some of them, on a triennial basis or any basis at all; (3) or conducts the

review explicitly required by 40 C.F.R. § 131.20(a). We are not aware of any state in which EPA has required

adherence to 40 C.F.R. § 131.20(a). Therefore, if EPA is to point to this review as part of its safety net in allowing and

encouraging variances it must be prepared to enforce this provision. It must articulate how will respond to acts of

omission, as discussed above. In addition, EPA must revise its proposed rules to specifically link variances to the

requirements of 40 C.F.R. § 131.20(a) and require that variances include data collection that will generate data that can

be used in the triennial review. It is pointless to call for a review where no additional data or information will be

available. It is equally pointless to discuss the prospect of adaptive management where no new information will be

generated.

Response

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

8.f.i

8.f.i: Section E

8.g.iii

Comment ID 0268-A2.001.032

Author Name: Bell Nina

Organization: Northwest Environmental Advocates

Moreover, EPA is now encouraging a widespread use of variances to address the numerous and extensive impairments

that exist in the nation's waters. EPA explains that where a use or criterion "is not attainable immediately (or for a

limited period of time) for an entire waterbody, the state or tribe may adopt a waterbody variance as an alternative to a

designated use change[.]" Fed. Reg. at 54532. This approach to variances is just asking for states to adopt massive

variances that alter the entire approach to setting of water quality criteria that protect the most sensitive designated

uses based on sound scientific rationale. 40 C.F.R. § 131.11(a). For example, in Western states where widespread

grazing, water withdrawals, logging, and farming have removed riparian vegetation and made streams more shallow

with sediment, temperature criteria will take at least decades to achieve. Now EPA is encouraging states to throw off

any progress made in refining uses and setting criteria to protect them, listing waters that fail to meet them, and

developing TMDLs which in theory will result in moving waters closer to attainment. Instead, EPA is offering states a

virtual get-out-of-jail-free card in which they may adopt variances that "appl[y] to the water body itself, rather than to any

specific source or sources." Id. In doing this, without any rationale set out or any explanation of how EPA believes

abuses will be prevented, EPA claims yet again – without substantiation – that the variance will "provide[] time for the

state or tribe to work with both point and nonpoint sources to determine and implement adaptive management

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approaches on a waterbody/watershed scale to achieve pollutant reductions and strive toward attaining the water

body's designated use and associated criteria." Id. There is nothing in the proposed rules that makes this dreamlike

vision likely or even plausible. There is no discussion by EPA of why the existing regulatory and voluntary programs that

ostensibly are being used to work with point and nonpoint sources – forty years after passage of the Clean Water Act –

are now not sufficient and must therefore be undermined by moving the goal posts out to nobody knows where and

nobody knows when. The important thing for polluters is that they can persist in doing the same or similar activities as

they currently do and postpone thoughts of doing something dramatic to restore water quality to levels necessary to

protect designated uses to some time in the future . . . the very same approach that states and polluters have been

using so ineffectively for the last four decades. EPA states that the benefits of a variance is to provide "time" yet EPA

asserts no basis that "time" will result in anything but its own passage. How will time lead to nonpoint source controls? It

has not had that effect so far.

In this context EPA again mentions the use of "adaptive management," a process that is more honored in the breach

than in the observance. So-called adaptive management only works where there is a lot of information being gathered

to ensure that there is a feedback loop and triggers to make sure evaluations take place and result in changes that

respond to the results of the evaluations. Nothing in EPA's proposed rules addresses how this alleged adaptive

management will take place. The preamble merely asserts that it will. And EPA does not explain how the current

system uses or fails to use adaptive managment to control point and/or nonpoint sources and how or why a variance

would change that. EPA does not explain why it is necessary or desirable for variances to apply to waterbodies rather

than to individual sources. EPA does not explain the ramifications of variances applying to waterbodies which would,

therefore, mean the variance applies to nonpoint sources which are generally not doing anything to meet water quality

standards that someone isn't paying for through local, state, and federal incentive programs.

EPA does not consider that having announced in its preamble that variances are underused tools it may be inundated

with waterbody/watershed/water basin/state-wide variances that it will be hard pressed to reject because, after all, it will

need to show its enthusiasm for the variance process and because states have been so entirely recalcitrant in

controlling pollution sources for the last four decades. We strongly urge EPA to rescind the aspect of its proposed rules

that would allow for waterbody (and by implication watershed and statewide) variances. Variances have a role to play in

providing regulatory relief to individual point sources where technology does not exist or would be too expensive to use

and there is not sufficient certainty to use a compliance schedule to allow the source time to come into compliance.

Variances that offer states the option of virtually suspending for all time the criteria they, and EPA, have deemed

necessary to protect human health and aquatic species are both a distraction and the likely undoing of all hope of

progress. Alternatively, if EPA keeps the waterbody variances it must make implementation of nonpoint source controls

mandatory. Otherwise, point sources will continue to demand and receive variances in large part because nonpoint

sources are not doing their share of pollution controls, an endless cycle never to be broken. EPA should not set up a

process by which nonpoint sources' recalcitrance is the undoing of the water quality-based prong of the CWA. 

Response

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

8.f.i

8.f.i: Section C

8.g.v

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Comment ID 0268-A2.001.049

Author Name: Bell Nina

Organization: Northwest Environmental Advocates

[Copied regulatory text and made no suggested edits.]

(a) Applicability:

(1) All applicable WQS not specifically addressed by the WQS variance remain applicable. 

Response

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

8.f.i

8.f.i: Section D

Comment ID 0271-A1.001.010

Author Name: Montoya Victor

Organization: Pueblo of Sandia

10. Proposed WQS regulation at § 131.14 (a) (2). The Pueblo of Sandia has reviewed the proposed definition on

variances and agrees with the proposed language.

Response

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

8.f.i

8.f.i: Section A

8.f.i: Section F

Comment ID 0272-A2.001.020

Author Name: Jennifer Chavez Janette Brimmer

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27

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B. If Used at All, Variances Must Be Significantly Narrowed and Circumscribed to Ensure They Do Not Defeat the

Proper Function of the Clean Water Act.

Variances to water quality standards are currently allowed by EPA rule, and while the rule is plain they must be used

sparingly, EPA should use this rulemaking effort to further limit their application. 40 C.F.R. § 131.10. Variances are

water quality standards in their own right and as such, must be approved by EPA. 33 U.S.C. § 1313(c) and 40 C.F.R. §

131.10(g) and (h). See also EPA Water Quality Standards Handbook, parts 2.7 and 2.8. 

Response

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

8.f.i

8.f.i: Section A

Comment ID 0272-A2.001.022

Author Name: Jennifer Chavez Janette Brimmer

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27

Variances are not appropriate for anything other than portions (generally small) of water bodies and they pertain only to

a single discharge or possibly a small group of discharges into that reach. As with UAAs, some conditions for a variance

are more prone to abuse, such as where human conditions supposedly have permanently altered the water body such

that it is not possible to meet standards or would be more environmentally damaging to attempt to do so or where it is it

is economically prohibitive to return the water to meeting standards. It is never appropriate to grant a variance where

standards can be attained with reductions on point and nonpoint sources, including elimination of discharges. 40 C.F.R.

§§ 131.10(d) and (g).

If EPA insists on the continued use of variances (again, a choice that the Water Protection Groups think is not

consistent with the requirements of the Clean Water Act), then some of EPA's proposals in this rulemaking are

necessary and some do not go far enough. See 78 Fed. Reg. 54,532-536. Set forth below are the Water Protection

Groups' specific comments on EPA's variance proposals.

The Water Protection Groups agree that the scope of the variance must be both discharger- and water body-specific

and it should also be pollutant-specific; it should extend for the shortest distance possible in the water body [FN7] and

must be decided and supported with a full record, on a case by case basis. EPA should be clear that there are no

variances allowed for an entire water body or an entire region or state for any pollutant. EPA should also require that

the state publicly identify the discharger(s) for whom it has granted the variance, and the segment of the water body to

which it applies. 

[FN7] This is basically consistent with EPA guidance now, but it is abused and EPA will be well-served to make that

clear in this rule. This also points up the fact that variances aren't really necessary-mixing zones do the same thing.

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One or the other of these "anti-Clean Water Act" concepts should be eliminated. 

Response

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

8.f.i

8.f.i: Section A

8.f.i: Section B

8.f.i: Section C

Comment ID 0274-A2.001.009

Author Name: Yeaton Violet

Organization: Region 10 Regional Tribal Operations Committee

5. Variances

Variances to water quality standards are currently allowed by current regulations and must be used sparingly.

Accordingly, EPA should use this rulemaking effort to further clarify their application.

First, any variance rule should clarify that it does not replace or otherwise alter the underlying designated use.

The Proposed Rule must ensure that a variance must be discharger , pollutant, and waterbody specific. As such, the

Proposed Rules should be clarified EPA should be clear that there are no variances allowed for an entire waterbody for

any pollutant. 

Response

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

8.f.i

8.f.i: Section C

8.f.i: Section D

Comment ID 0278-A2.001.023

Author Name: Hornback Chris

Organization: National Association of Clean Water Agencies

We also support the concept of discharger-specific, multi-discharger, and watershed-wide variances.

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Response

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

8.f.i

8.f.i: Section C

Comment ID 0283-A1.001.017

Author Name: Thorme Melissa

Organization: Downey Brand Attorneys LLP on behalf of several clients

The main problem with U.S. EPA's variance process is that it must meet the same requirements as a permanent

designated use modification. This process is potentially onerous if a "structured scientific" assessment is also required

for a short-term variance to be adopted and approved. If U.S. EPA truly wants to encourage the use of such a tool, as it

states it does in the regulatory proposal, then the process for adoption of variances needs to be modified and made

easier. One clarification that could be made is that the State need only provide a valid explanation why the designated

use and criteria are currently unattainable and provide a time frame for attaining the use and criteria. This explanation

may include the section 131.10(g) factors or other factors so long as there are adequate findings and evidence to

support the need for such a variance. For instance, California has in the past adopted a Drought Policy, which provided

interim standards applicable in drought periods for salinity related standards.

The maximum flexibility should be provided for variances, to apply to a single or multiple dischargers or to an entire

waterbody or segment thereof. However, where a variance is applicable only to certain discharges, any 303(d) listings

should be deferred for the uses and/or criteria that are covered by the variance since a TMDL is not necessary to

address a short-term variance that will resolve itself at the end of the variance. 

Response

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

8.f.i

8.f.i: Section C

8.f.i: Section D

8.f.i: Section E

8.f.ii

8.F.II - VAR APP - PERMITTING & 303(D)

Comment ID 0128-A1.001.009

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Author Name: Boon Richard

Organization: California Stormwater Quality Association

E. WQS Variances

CASQA generally supports the inclusion of variance provisions. However, we believe that the provisions currently

included are onerous and may not be sufficient to address all types of discharges that may be suitable for a variance.

Our primary concerns are that the implementation provisions appear to be geared primarily towards dischargers that

are typically subject to numeric WQBELs and not dischargers such as municipal stormwater that may have other water

quality related requirements that are not specifically numeric WQBELs. Due to the focus on numeric WQBELs, the

proposed language appears to limit a State's ability to adopt variances for other provisions that are related to meeting

water quality standards. 

Response

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

8.f.ii

8.f.ii: Section F

8.g.ii

Comment ID 0128-A1.001.012

Author Name: Boon Richard

Organization: California Stormwater Quality Association

Finally, maximum flexibility should be provided for variances, to apply to a single or multiple dischargers or to an entire

waterbody or segment thereof. However, where a variance is applicable only to certain discharges, development of

TMDLs for any 303(d) listings should be deferred for the uses and/or criteria that are covered by the variance since the

impairment may resolve itself through actions conducted during the variance period, making a TMDL unnecessary. 

Response

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

8.f.ii

8.f.ii: Section A

8.f

8.f.i

Comment ID 0128-A1.001.013

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08/04/2015 05:01 PM EDT 2-1057
Author Name: Boon Richard

Organization: California Stormwater Quality Association

Recommendations:

1. Include language clarify the relationship between water quality standards and MS4 permit requirements.

Response

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

8.f.ii

8.f.ii: Section F

8.g.ii

Comment ID 0128-A1.001.015

Author Name: Boon Richard

Organization: California Stormwater Quality Association

Recommendations:

3. Include language to defer the development of a TMDL while a variance is in place.

Response

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

8.f.ii

8.f.ii: Section A

Comment ID 0149-A2.001.004

Author Name: Michael Gene

Organization: City of Pueblo Wastewater Department

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

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b. Clarify the relationship between variances and Section 303(d).

If EPA moves forward with variance provisions in the final rule, additional clarification of the relationship between

variances and waste load allocations in TMDLs is needed. EPA's stated intent is that variances should "serve as the

basis of a WQBEL included in a NPDES permit during the variance period." [FN6] The preamble to the Proposed Rule

specifically referred to 40 CFR 122.44(d)(1)(viii)(A)'s requirement to establish limitations that derive from and comply

with the applicable WQS. EPA should also provide clarification that the purpose of a variance will not be defeated when

a water body is listed as impaired under Section 303(d) of the Act, or a TMDL is developed for that water body.

The Proposed Rule provides simply that WQS variances apply for "CWA section 402 permitting purposes." By

omission, this may be interpreted to imply that effluent limitations derived from TMDLs under CWA section 303(d) are

not included. This ambiguity could contribute to litigation and uncertainty in states' implementation of variances,

defeating the purpose of including variances in the Proposed Rule.

In particular, 40 CFR 122.44(d)(vii) requires states to ensure that "effluent limits . . . are consistent with the assumptions

and requirements of any available wasteload allocation for the discharge prepared by the State and approved by EPA

pursuant to 40 CFR 130.7." For these purposes, if there is a variance adopted applicable to the discharger, the

wasteload allocation should not be considered to be "available" for the discharge, and therefore the state is not

obligated to impose effluent limitations that are consistent with the wasteload allocation. Alternatively, the variance

should be considered to set the pollutant levels necessary to attain and maintain the applicable WQS for purposes of 40

CFR 130.7(c). In addition, 40 CFR 122.4(i) prohibits issuance of a permit to a new source or a new discharger "if the

discharge from its construction or operation will cause or contribute to the violation of water quality standards." For

purposes of 40 CFR 122.4(i), the water quality standards applicable to the discharger should be considered to be the

variance, not the underlying standards. EPA should explicitly clarify this in the regulation and preamble.

To provide this clarification, Pueblo suggests the following revision to the Proposed Rule:

§ 131.14 Water quality standards variances.

• • •

(a)(2)(ii) The interim requirements specified in the WQS variance are in effect during the term of the WQS variance and

apply for CWA section 402 permitting purposes, [begin new text] including but not limited to 40 CFR 121.4 and 121.44,

[end new text] and in issuing certifications under section 401 of the Act for the permittee(s), pollutant(s), and/or water

body or waterbody segment(s) covered by the WQS variance. [begin new text] The WQS variance serves as the basis

for WOBELs included in any NPDES permit during the variance period, and supersedes any wasteload allocation

during the variance period. [end new text]

[FN6] 78 Fed. Reg. at 54536.

Response

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

8.f.ii

8.f.ii: Section A

8.f.ii: Section B

Comment ID 0151-A1.001.012

Author Name: Tate Michael

Organization: Kansas Department of Health and Environment

Permitting Concerns

As a condition of a variance, using the highest attainable condition as a permit effluent limit is sound policy. However,

linking the variance to a permit does invite complications if there are reasons the permit needs to be administratively

extended. Some contingency for delays in reissuing the permit should be in place so that the variance may continue

even if the permit gets extended. 

Response

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

8.f.ii

8.f.ii: Section C

Comment ID 0153-A2.001.016

Author Name: Bishop Jonathan

Organization: California State Water Resources Control Board

B. The applicability of the variance.

The proposed regulation provides at section 131.14(a)(2)(ii) that interim requirements contained in a WQS variance

(i.e., the time-limited designated use and criterion) only apply to CWA section 402 permitting purposes and issuing

certifications under CWA section 401. (78 Fed. Reg. 54545, col. 1.) The preamble clarifies that a state's implementation

of CWA section 303(d) and a state's standards programs shall be based on underlying designated uses and criteria

rather than the variance's interim requirements. (Id., 54533, col. 2.)

i. The WQS variance applicable to CWA section 401 certifications should be limited to certifications of NPDES permits.

The final rule should also unequivocally clarify that states retain discretion to use tools other than a variance, or to issue

a variance where appropriate, such as "to provide time to address uncertainty regarding the appropriateness or

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attainability of the WQS." (78 Fed. Reg. 54535, col. 3.) A variance procedure may not always be necessary or efficient.

EPA's longstanding position is that WQS may allow for compliance schedules in NPDES permits where a discharger

needs time to come into compliance with a water quality based effluent limitation. Particularly in the context of water

quality certification, a schedule of compliance may be necessary for matters other than effluent limits. Achieving WQS

may require wetlands restoration, modification of intake structures or construction of new intake structures (including

temperature control devices allowing variable intake levels from reservoirs), removal of other barriers to fish passage,

and other actions that require time to design and construct. The final rule should make clear that a variance is not

required whenever a schedule of compliance is needed because the permitted facility is not currently in compliance and

it is infeasible to bring the facility into immediate compliance.

Clarification is essential so that the new rule is not interpreted to mean that a variance procedure is required for a state

to issue a water quality certification that allows time for a permittee to come into compliance with a WQS. In contrast to

very precise and strict federal regulations governing NPDES permits, the federal water quality certification regulations at

Part 121 of Title 40 of the Code of Federal Regulations (state certification of activities requiring a federal license or

permit) are silent on issues such as schedules of compliance, mixing zones, and other details on implementation of

standards. That appropriately leaves discretion to states to develop permits that adequately balance water quality

needs tailored to the specific project and circumstances. The State Water Board does not read the CWA to prohibit

geographic and temporal flexibility in its implementation outside of the world of point sources regulated by NPDES

permits.

It should be noted in this regard that Part 121 dates back to 1971, without being updated to reflect subsequent

legislation and case law. It would not be desirable to establish rules on issues such as schedules of compliance in water

quality certification, as an incident to rules on water quality standard setting, without taking a broader look at the Part

121 regulations. The preamble appears to assume that water quality certification is similar to NPDES permitting, when

there are in fact major differences between NPDES permitting and water quality certification, and between different

types of water quality certification depending on the federal permit or license is involved. The preamble does not

provide any discussion of how the variance process would work outside the context of NPDES permitting, suggesting

the possibility that the references to water quality certification are intended to refer to water quality certification of

NPDES permits. (See 78 Fed. Reg. 54534, col. 3 [concluding that 10 years is an adequate term for a variance because

it reflects two five-year NPDES permit cycles, with no discussion of other federal permits and licenses, which may have

thirty to fifty year terms].) If the references to water quality certification were intended to refer to certification of NPDES

permits, the final rule should clarify.

There are substantial differences between NPDES permitting and water quality certification– especially water quality

certification of federal permits and licenses other than NPDES permits– that raise concerns about whether the same

rules should apply. Water quality certification sometimes needs to be issued within a very short period, making it

infeasible to obtain a variance before issuing certification. (See, e.g., 33 C.F.R. § 325.2(b)(1)(ii) [as few as sixty days

from application submission].) Some of the permits and licenses subject to water quality certification have been in effect

for as long fifty years, meaning that WQS are being applied for the first time, creating a greater need for compliance

schedules than with NPDES permits because of the magnitude of project modifications needed to achieve compliance.

Particularly in the context of Federal Energy Regulatory Commission (FERC) relicensing, delaying water quality

certification pending approval of a variance will delay environmental improvements that will be required as conditions of

the new license. And because of federal preemption, limiting a state's authority to apply and enforce its water quality

requirements independent of the water quality certification, the state may be powerless to do anything about water

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quality violations until the water quality certification is issued and incorporated into the new FERC license. Perhaps

most important, water quality certification can be waived, and can be waived despite a state's desire to use that

authority if the state is unable to act within the time provided. A requirement for a variance before a state can issue

water quality certification in cases where full and immediate compliance is infeasible could backfire, resulting in waivers

where the state would otherwise set enforceable requirements for water quality improvements over time. Even if

waivers can be avoided, the additional delays would like lead to calls to exempt some federal permits and licenses from

water quality certification.

The State Water Board can, and often does, issue water quality certification that provides time for an applicant to

submit plans, conduct studies, and implement project modification (including instream flows) and restoration to bring a

project into compliance with WQS. For example, FERC licensed hydroelectric projects are issued water quality

certifications that contemplate water quality improvements over the lifetime of a license for 30 or 50 years. Further, the

State Water Board and Regional Water Boards have discretion to issue certifications for restoration projects that allow

short-term exceedances of WQS for long-term improvement and protection of beneficial uses. The proposed rule

attempts to clarify that existing authority, but also introduces ambiguity in its discussion about restoration. (78 Fed. Reg.

54534, col. 3 ["the state or tribe must demonstrate that attaining the designated use and criterion is not feasible ...

because actions necessary to facilitate restoration through dam removal or other significant wetland or stream

reconfiguration activities preclude attainment of the designated use and criterion while the actions are being

implemented"]; id., col. 1 ["[C]urrent § 131.10(g) factors do not accommodate situations where a variance may be

necessary to facilitate short-term efforts to restore the natural physical features (i.e. natural geomorphology) of a

system"].) The State Water Board disagrees that a new variance procedure subject to EPA approval is necessary to

issue certifications under Clean Water Act section 401 for projects that will take some time to meet WQS.

The additional variance procedure may be useful by providing more specificity and transparency in situations where

attainment is uncertain and a "waterbody" variance is needed to temporarily lower a standard for multiple dischargers;

however, states should not be required to utilize this procedure when issuing water quality certification for restoration

projects or otherwise. To ensure that the proposed rule will not unnecessarily impose administrative and procedural

burdens on the water quality certification process, all references of the WQS variance applicable to issuing certification

under section 401 of the Act should either be limited to 401 certification of NPDES permits or be removed. 

Response

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

8.f.ii

8.f.ii: Section D

8.e

8.g.ii

Comment ID 0158-A1.001.026

Author Name: Goodmann Peter

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Organization: Kentucky Division of Water

[Copied regulatory text and made no suggested edits.]

(2) (i) Where a state adopts a WQS variance, the State regulations must continue to reflect the underlying designated

use and criterion unless the State adopts and EPA approves a revision to the underlying designated use and criterion

consistent with § 131.10 or § 131.11.

(ii) The interim requirements specified in the WQS variance are in effect during the term of the WQS variance and apply

for CWA section 402 permitting purposes and in issuing certifications under section 401 of the Act for the permittee(s),

pollutant(s), and/or water body or waterbody segment(s) covered by the WQS variance. For these limited purposes, the

interim requirements will be the standards applicable for purposes of the CWA under 40 CFR 131.21(c)-(e). 

Response

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

8.f.ii

8.f.ii: Section A

Comment ID 0160-A2.001.005

Author Name: West Jeff

Organization: Xcel Energy

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

a. Clarify the relationship between variances and Section 303(d) of the Act.

Additional clarification of the relationship between variances and waste load allocations in TMDLs is needed. EPA's

stated intent is that variances should "serve as the basis of a WQBEL included in a NPDES permit during the variance

period." The preamble to the Proposed Rule specifically referred to 40 CFR 122.44(d)(1)(viii)(A)'s requirement to

establish limitations that derive from and comply with the applicable WQS. EPA should also provide clarification that the

purpose of a variance will not be defeated when a water body is listed as impaired under Section 303(d) of the Act, or a

TMDL is developed for that water body.

The Proposed Rule provides simply that WQS variances apply for "CWA section 402 permitting purposes." By

omission, this may be interpreted to imply that effluent limitations derived from TMDLs under CWA section 303(d) are

not included. This ambiguity could contribute to litigation and uncertainty in states' implementation of variances,

defeating the purpose of including variances in the

Proposed Rule.

In particular, 40 CFR 122.44(d)(vii) requires states to ensure that "effluent limits . . . are consistent with the assumptions

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and requirements of any available wasteload allocation for the discharge prepared by the State and approved by EPA

pursuant to 40 CFR 130.7." For these purposes, if there is a variance adopted applicable to the discharger, the

wasteload allocation should not be considered to be "available" for the discharge, and therefore the state is not

obligated to impose effluent limitations that are consistent with the wasteload allocation. In addition, 40 CFR 122.4(i)

prohibits issuance of a permit to a new source or a new discharger "if the discharge from its construction or operation

will cause or contribute to the violation of water quality standards." For purposes of 40 CFR 122.4(i), the water quality

standards applicable to the discharger should be considered to be the variance, not the underlying standards. EPA

should explicitly clarify this in the regulation and preamble.

To provide this clarification, Xcel Energy suggests the following revision to the Proposed Rule:

§ 131.14 Water quality standards variances.

...

(a)(2)(ii) The interim requirements specified in the WQS variance are in effect during the term of the WQS variance and

apply for CWA section 402 permitting purposes, [begin new text] including but not limited to 40 CFR 121.4 and 121.44,

[end new text] and in issuing certifications under section 401 of the Act for the permittee(s), pollutant(s), and/or water

body or waterbody segment(s) covered by the WQS variance. 

Response

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

8.f.ii

8.f.ii: Section A

8.f.ii: Section B

Comment ID 0161-A2.001.006

Author Name: Ehm William

Organization: Iowa Department of Natural Resources

5. Regarding Section §131.14 Water quality standards variances:

We appreciate EPA attempting to clarify Section §131.14 Water quality standards variances and the affirmation implicit

in this proposal that the proposed requirements are not the current requirements of law. However, a variance from the

water quality standards cannot, by definition, be a water quality standard. If a state must go through the standard

adoption and approval process then the result is a water quality standard, not a variance from a standard. While EPA

should clarify the minimum requirements for the granting of a variance by a state, the implementation of the variance

procedures should be left to state discretion and should be implemented through permit issuance. Such permits would

be subject to objection by EPA. This is the current procedure federally adopted at 40 CFR rules 131.34 and 131.40. 

Chapter 2 - Comment Documents Variances

08/04/2015 05:01 PM EDT 2-1064
Response

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

8.f.ii

8.f.ii: Section A

8.f.ii: Section B

8.f.ii: Section G

Comment ID 0165-A2.001.014

Author Name: Gunderson Steven

Organization: Colorado Department of Public Health and Environment

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

13. Variance Provision - Applicability to Other CWA Provisions

Colorado appreciates EPA's efforts to identify how the variance provisions are applicable in light of other CWA

requirements. Sections 401 and 402 are important provisions to identify, however, it is important to include one more

CWA section and one regulatory provision.

• CWA Section 303(d). During the term of the variance, it is entirely ineffective to require states to include impairments

on the Section 303(d) List where the cause and sources of the impairment are known and all feasible incremental

progress towards attainment are insured by the conditions of the variance.

• 40 CFR 122.44(d)(1)(vii). It is important to identify this section by number so that it is clear that during the term of the

permit, the underlying WQSs and pre-existing wasteload allocations are not "available" for incorporation in WQBEL

calculations.

Colorado offers the following refinements to 131.14 (a)(2)(ii):

(ii) The interim requirements specified in the WQS variance are in effect during the term of the WQS variance and apply

for CWA section 402 permitting purposes, [begin strikeout] and [end strikeout] in issuing certifications under section 401

of the Act for the permittees(s), pollutants(s) and/or water body or water body segments(s) covered by the WQS

variance, [begin new text] and for section 303(d) of the Act where impairment is solely attributable to a duly authorized

variance. [end new text] For these limited purposes, the interim requirements will be the standards applicable for

purposes of the CWA under [begin new text] 40 CFR 122.44(d)(1)(vii) [end new text] and 40 CFR 131.21 (c) - (e).

Response

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

Chapter 2 - Comment Documents Variances

08/04/2015 05:01 PM EDT 2-1065
8.f.ii

8.f.ii: Section A

8.f.ii: Section B

Chapter 2 - Comment Documents Variances

08/04/2015 05:01 PM EDT 2-1066
Chapter 2 - Comment Documents Variances 

Comment ID 0166-A2.001.026 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[Copied regulatory text and made no suggested edits.] 

(2) (i) Where a state adopts a WQS variance, the State regulations must continue to reflect the underlying designated 

use and criterion unless the State adopts and EPA approves a revision to the underlying designated use and criterion 

consistent with § 131.10 or § 131.11. 

(ii) The interim requirements specified in the WQS variance are in effect during the term of the WQS variance and apply 

for CWA section 402 permitting purposes and in issuing certifications under section 401 of the Act for the permittee(s), 

pollutant(s), and/or water body or waterbody segment(s) covered by the WQS variance. For these limited purposes, the 

interim requirements will be the standards applicable for purposes of the CWA under 40 CFR 131.21(c)-(e). 

Response 

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

8.f.ii 

8.f.ii: Section A 

Comment ID 0175-A1.001.028 

Author Name: Canton Steven 

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

Section 131.14(c) discusses implementation of variances in NPDES permits. 

i. There is no discussion as to whether the individual needs of each discharger to a waterbody are taken into account 

when developing variances and permit limits. Could a discharge specific variance (DSV) penalize one discharger while 

helping another? Would the state approach the dischargers or would it be up to the dischargers to be aware of the 

potential for waterbody variances or DSVs? If a DSV is granted upstream, this could increase the load of the parameter 

to the river potentially negatively impacting the downstream discharger(s). If the downstream discharger(s) did not 

previously have permit limits, could the elevated background concentration of the parameter lead to reasonable 

potential for exceedance of permit limits for the downstream discharger(s), which would then trigger the inclusion of 

permit limits on this parameter? The rule does not address these and other questions. 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.f.ii 

8.f.ii: Section E 

8.f.ii: Section G 

Comment ID 0178-A2.001.014 

Author Name: Burnell Barry 

Organization: Idaho Department of Environmental Quality 

To make the connection between variances and permits more manageable, EPA should clarify that any permit 

limitations based on a variance are good until the permit is renewed, even after the variance term ends, unless 

otherwise stated in the permit. 

Response 

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

8.f.ii 

8.f.ii: Section C 

8.g.iii 

Comment ID 0182-A2.001.015 

Author Name: Hahn Martha 

Organization: The Colorado Wastewater Utility Council 

Variances - Potential Conflict with 40 CFR 122.44(d)(1)(vii)(B): 

Proposed § 131.14 indicates that a variance is a water quality standard for Clean Water Act section 402 permitting 

purposes. However, it is possible that there could be a conflict with respect to applicable effluent limitations in the event 

that a TMDL-based wasteload allocation is developed during the period that a variance is in effect. EPA's permitting 

regulations state that effluent limitations must be "consistent" with an "available" wasteload allocation. [FN4] 

Thus, upon permit renewal it may not be clear which effluent limitations should be incorporated into the permit: the 

variance-based effluent limitations or the wasteload-based effluent limitations (especially if those are more stringent). 

We recommend that, should the rule be finalized, EPA clarify that any such TMDL-based wasteload allocation is not 

"available" for permitting purposes until the variance expires. 

[FN4] 40 CFR 122.44(d)(1)(vii)(B) states "Effluent limits developed to protect a narrative water quality criterion, a 

08/04/2015 05:01 PM EDT 2-1068
 
Chapter 2 - Comment Documents Variances 

numeric water quality criterion, or both, are consistent with the assumptions and requirements of any available 

wasteload allocation for the discharge prepared by the State and approved by EPA pursuant to 40 CFR 130.7." 

Response 

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

8.f.ii 

8.f.ii: Section B 

8.f.ii: Section C 

Comment ID 0184-A2.001.017 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

If EPA moves forward with variance provisions in the final rule, additional clarification of the relationship between 

variances and waste load allocations in TMDLs is needed. EPA's proposal provides simply that WQS variances apply 

for "CWA section 402 permitting purposes." By omission, this may imply that effluent limitations derived from TMDLs 

under CWA section 303(d) are not included. In particular, 40 CFR 122.44(d)(vii) requires states to ensure that "effluent 

limits . . . are consistent with the assumptions and requirements of any available wasteload allocation for the discharge 

prepared by the State and approved by EPA pursuant to 40 CFR 130.7." For these purposes, if there is a variance 

adopted applicable to the discharger, the wasteload allocation should not be considered to be "available" for the 

discharge, and therefore the state is not obligated to impose effluent limitations that are consistent with the wasteload 

allocation. In addition, 40 CFR 122.4(i) prohibits issuance of a permit to a new source or a new discharger if the 

discharge from its construction or operation will cause or contribute to the violation of water quality standards." For 

purposes of 40 CFR 122.4(i), the water quality standards applicable to the discharger should be considered to be the 

variance, not the underlying standards. EPA should explicitly clarify this in the regulation and preamble. 

Response 

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

8.f.ii 

8.f.ii: Section B 

Comment ID 0188-A2.001.006 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

08/04/2015 05:01 PM EDT 2-1069
 
Chapter 2 - Comment Documents Variances 

5. Regarding Section §131.14 Water quality standards variances: 

• We appreciate EPA attempting to clarify Section §131.14 Water quality standards variances and the affirmation 

implicit in this proposal that the proposed requirements are not the current requirements of law. However, a variance 

from the water quality standards cannot, by definition, be a water quality standard. If a state must go through the 

standard adoption and approval process then the result is a water quality standard, not a variance from a standard. 

While EPA should clarify the minimum requirements for the granting of a variance by a state, the implementation of the 

variance procedures should be left to state discretion and should be implemented through permit issuance. Such 

permits would be subject to objection by EPA. This is the current procedure federally adopted at 40 CFR rules 131.34 

and 131.40. 

Response 

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

8.f.ii 

8.f.ii: Section G 

Comment ID 0189-A1.001.020 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

All too often we see that variances are not an "aid" to states to meeting water quality standards, but often appear to be 

an excuse to avoid or delay compliance indefinitely. The intent may be for variances to be allowed as necessary to 

"provide states and tribes time to make progress towards attaining a designated use and criteria" or to "help improve 

water quality by allowing states and tribes time to work with stakeholders", or to "provide states and tribes with time to 

implement adaptive management approaches." But these objectives are more straightforwardly achieved through the 

assessment and listing of impaired waters (§303 (d)), and preparation and implementation of a TMDL plan, with 

wasteload allocations applied to discharge permits. 

Response 

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

8.f.ii 

8.f.ii: Section A 

8.f.ii: Section B 

Comment ID 0190-A1.001.013 

08/04/2015 05:01 PM EDT 2-1070
 
Chapter 2 - Comment Documents Variances 

Author Name: Wagener Fritz 

Organization: NA 

Page 54533: "However, the interim requirements do not replace the designated use and criteria for the water body as a 

whole." EPA's characterization of a WQS variance as "interim requirements" sells short the proposed regulatory 

operational definition of a WQS variance in 131.14 as "a time-limited designated use and criterion". 

Response 

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

8.f.ii 

8.f.ii: Section F 

Comment ID 0193-A2.001.013 

Author Name: Biggs Barbara 

Organization: Metro Wastewater Reclamation District 

Variances – Potential Conflict with 40 CFR 122.44(d)(1)(vii)(B): 

Proposed § 131.14 indicates that a variance is a water quality standard for Clean Water Act section 402 permitting 

purposes. However, it is possible that there could be a conflict with respect to applicable effluent limitations in the event 

that a TMDL-based wasteload allocation is developed during the period that a variance is in effect. EPA's permitting 

regulations state that effluent limitations must be "consistent" with an "available" wasteload allocation. [FN5] 

Thus, upon permit renewal it may not be clear which effluent limitations should be incorporated into the permit: the 

variance-based effluent limitations or the wasteload-based effluent limitations (especially if those are more stringent). 

We recommend that, should the rule be finalized, EPA clarify that any such TMDL-based wasteload allocation is not 

"available" for permitting purposes until the variance expires. 

[FN5] 40 CFR 122.44(d)(1)(vii)(B) states "Effluent limits developed to protect a narrative water quality criterion, a 

numeric water quality criterion, or both, are consistent with the assumptions and requirements of any available 

wasteload allocation for the discharge prepared by the State and approved by EPA pursuant to 40 CFR 130.7." 

Response 

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

8.f.ii 

8.f.ii: Section B 

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Chapter 2 - Comment Documents Variances 

8.f.ii: Section C 

Comment ID 0195-A1.001.021 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

All too often we see that variances are not an "aid" to states to meeting water quality standards, but often appear to be 

an excuse to avoid or delay compliance indefinitely. The intent may be for variances to be allowed as necessary to 

"provide states and tribes time to make progress towards attaining a designated use and criteria" or to "help improve 

water quality by allowing states and tribes time to work with stakeholders", or to "provide states and tribes with time to 

implement adaptive management approaches." But these objectives are more straightforwardly achieved through the 

assessment and listing of impaired waters (§303 (d)), and preparation and implementation of a TMDL plan, with 

wasteload allocations applied to discharge permits. 

Response 

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

8.f.ii 

8.f.ii: Section A 

8.f.ii: Section B 

Comment ID 0200-A1.001.012 

Author Name: Covar Zak 

Organization: Texas Commission on Environmental Quality 

EPA further states in proposed 40 CFR § 131.14 that "WQS variances are water quality standards subject to EPA 

review and approval or disapproval and must be consistent with this section." EPA should not adopt any rule language 

that could be interpreted to require states to individually adopt permit variances in their water quality standards before 

the applicable permit could be issued. The proposed language could be construed as such a requirement and should 

be deleted. 

Response 

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

8.f.ii 

8.f.ii: Section D 

8.f.ii: Section G 

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Chapter 2 - Comment Documents Variances 

Comment ID 0207-A1.001.041 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

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

(a) Applicability: 

(1) All applicable WQS not specifically addressed by the WQS variance remain applicable. 

(2) (i) Where a state adopts a WQS variance, the State regulations must continue to reflect the underlying designated 

use and criterion unless the State adopts and EPA approves a revision to the underlying designated use and criterion 

consistent with § 131.10 or § 131.11. 

(ii) Any interim [begin new text] WQS [end new text] specified in the WQS variance are in effect during the term of the 

WQS variance and apply for CWA section 402 permitting purposes and in issuing certifications under section 401 of the 

Act for the permittee(s), pollutant(s), and/or water body or waterbody segment(s) covered by the WQS variance. For 

these limited purposes, the interim [begin new text] WQS [end new text] will be the standards applicable for purposes 

of the CWA under 40 CFR 131.21(c)-(e). 

Response 

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

8.f.ii 

8.f.ii: Section F 

Comment ID 0217-A2.001.023 

Author Name: Hale Michelle 

Organization: Alaska Department of Environmental Conservation 

d. Specific Comments (Note: Page references are based on the pre-publication copy of the proposed regulations.) 

Page 58, First Full Sentence. ADEC cautions against the use and implementation of the phrase, "...what is required 

during the term of the variance," as too much specificity in the final rule may have the unintended consequence of 

limiting innovative approaches not considered when the rule was finalized. Alternatively, language could be added in 

the final rule allowing the NPDES authority flexibility in evaluating innovative approaches not explicitly detailed in the 

rule. 

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Pages 60 and 61, Variance Approvals for Specific Discharger(s). Language on the bottom of page 60 indicates that a 

water quality standard (WQS) variance is a time-limited use and criterion for a specified pollutant(s), permittee(s), 

and/or water body or water body segment(s). Language on page 61 further discusses EPA's position that as a WQS, 

variances are subject to § 131.20(a) and must be reviewed on a triennial basis. The subsequent paragraph indicates 

that the states typically find variances that apply to a specific pollutant(s) and discharger(s) to be most useful. In the 

situation described in the preceding sentence, and in the spirit of streamlining regulatory approaches aimed at 

improving the nation's water quality, EPA should include regulatory language specifying that WQS variance(s) for a 

singular discharger may be incorporated into the NPDES or state equivalent NPDES permit issued to the discharger 

without formal adoption of the variance in the NPDES authority's regulatory WQS package. In this case, EPA may use 

the public notice period of the permit to evaluate the appropriateness of the variance. This approach would allow 

permittees to partner with NPDES authorities through a streamlined approach to more timely address the water quality 

issue. Further, tying approval of the variance (in these situations) would align the variance time period with the NPDES 

permit as suggested by the draft rule as opposed to actually tying the variance approval to the triennial review approval 

process. 

Page 66, Second Full Paragraph. Language in this paragraph provides detail similar to what is required of a Total 

Maximum Daily Load. Flexibility should be afforded in the final variance rule stating that a variance may be developed 

that considers the variance's use by future NPDES permittees (i.e., the variance may not consider all potential 

permittees eligible to receive the variance at the time of the variance's implementation, especially in the case of 

variance(s) that apply to multiple permittees). 

Page 76, Implementing Variances, First Paragraph, Last Sentence. This sentence states, "Any activities required to 

implement the variance shall be included as conditions of the NPDES permit for the permittee(s) subject to the 

variance." It is unclear how the terms of this sentence will be met for water body variances Language mid-page on page 

62 suggests that a water body variance provides time for the state or tribe to work with both point and non-point sources 

to determine and implement adaptive management approaches on a waterbody/watershed scale to achieve pollutant 

reductions and strive toward attaining the water body's designated use and associated criteria. Language should be 

clarified throughout the rule to indicate that non-point source pollutant reductions are not the responsibility of the 

NPDES permittee when non-point sources are incorporated into the variance. 

Response 

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

8.f.ii 

8.f.ii: Section A 

8.f.ii: Section D 

8.f.ii: Section F 

8.f.ii: Section G 

8.g.v 

Comment ID 0222-A1.001.020 

08/04/2015 05:01 PM EDT 2-1074
 
Chapter 2 - Comment Documents Variances 

Author Name: Modeer David 

Organization: Western Urban Water Coalition 

2. Please explain how EPA will implement variances in practice, if total maximum daily load (TMDL) allocations 

continue to be based on the underlying criteria. Will the TMDL implementation be phased or delayed? EPA should 

clearly indicate that a TMDL based wasteload allocation is not to be utilized for permitting purposes until the variance 

expires, with variance based effluent limits to be used in the interim. 

3. Please explain and clarify whether at Section F.2.A.II. of the Preamble EPA takes the position that, if there is a facility 

with a variance in a segment where a project needs a section 401 certification, the state can still certify that the project 

will meet the "underlying" state standards. We encourage EPA to allow certification under these circumstances. 

Response 

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

8.f.ii 

8.f.ii: Section B 

8.f.ii: Section C 

8.f.ii: Section D 

Comment ID 0222-A1.001.021 

Author Name: Modeer David 

Organization: Western Urban Water Coalition 

CONCLUSION 

As discussed in these comments, WUWC members are concerned with predictability and certainty concerning the 

application of water quality standards used in determining NPDES permit limits and in reducing compliance costs in 

meeting water quality standards. To address these concerns, WUWC requests that EPA consider the recommendations 

made in this comment letter and, as part of the consultation process under E.O. 13132, consult with WUWC members 

regarding the impacts of the Proposed Rule on state, tribal and local governments and regulated entities. 

Response 

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

8.f.ii 

8.f.ii: Section G 

08/04/2015 05:01 PM EDT 2-1075
 
Chapter 2 - Comment Documents Variances 

Comment ID 0224-A1.001.013 

Author Name: Ternieden Claudio 

Organization: Water Environment Federation 

F. WQS Variances. 

EPA Proposal: 

EPA is proposing to provide more specificity at the national level regarding the use of variances. It states that its 

analysis showed that where states and tribes and their stakeholders have more specificity in regulation related to 

variances, such as those states and tribes covered by the "Water Quality Guidance for the Great Lakes System" (i.e., 

Great Lakes Initiative) rulemaking at 40 CFR part 132, they are successfully adopting and submitting WQS variances. 

EPA found that four EPA Regions have never received a WQS variance submittal. 

WEF Comment: 

Although EPA attempts at specificity in the proposed rule, it has remained silent about how to handle variances with 

regard to TMDLs. A memorandum written by Diane Regas to the Regions dated July 21, 2003, stated, "States should 

be aware that a TMDL should be developed to meet the existing WQS, not a temporary variance that is less stringent 

than the existing WQS."(p.13) EPA needs to clarify if the proposed amendments would change EPA's interpretation. 

The source of that confusion is the way the current proposed rule is written since it cites to CFR 131.21(c)-(e). The 

proposal as written appears to change that interpretation which WEF believes would be incorrect. 

Response 

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

8.f.ii 

8.f.ii: Section A 

8.f.ii: Section B 

Comment ID 0227-A2.001.006 

Author Name: Williams Christopher 

Organization: AMERICAN RIVERS 

WQS variances and activities permitted under CWA § 401 

While WQS Variances may be appropriate in some cases, we are concerned that they may be highly inappropriate for 

Water Quality Certifications issued under § 401 of the Clean Water Act in cases where the duration of the federally 

licensed or permitted activity covered by the 401 Certification will exceed the maximum expiration date of the WQS 

08/04/2015 05:01 PM EDT 2-1076
 
Chapter 2 - Comment Documents Variances 

variance. 

For instance, the Federal Energy Regulatory Commission (FERC) issues licenses for hydropower dams and cannot do 

so until a license applicant has obtained, pursuant to § 401 of the Clean Water Act, a Certification from the appropriate 

state that the project will comply with state water quality standards. EPA's proposed rule proposes WQS variances that 

would be issued for a maximum of 10 years. FERC licenses are issued for periods of 30-50 years. A Water Quality 

Certification based on a 10-year variance simply cannot provide reasonable certainty that water quality standards will 

be attained over the life of a 30-50 year license or permit. Both the Clean Water Act and the Federal Power Act permit 

FERC to modify the terms of its licenses to reflect changes in Water Quality Standards or other environmental 

conditions, but neither statute explicitly requires FERC to do so, and FERC has almost never used this authority. As a 

result, issuing a Water Quality Certification for a 30-50 year license based on a 1, 2, or even 10-year variance could 

result in a de facto variance of up to 50 years. Such an outcome would clearly undermine the intention and goals of the 

Clean Water Act. 

We recommend that EPA clarify that neither a discharger-specific nor a waterbody WQS variance should be used as 

the basis for a CWA section 401 certification for a federal license or permit when the duration of said license or permit 

would exceed the duration of the variance. In the alternative, EPA should clarify to States/Tribes that 401 certifications 

based on a variance that would expire during the life of a federal license or permit should be written and conditioned 

under the assumption that the variance will not be renewed after it has expired. Once the variance has expired, permit 

holders would be required to meet water quality standards. For instance, consider a dam operator applying for a 401 

certification for a 50-year license hydropower dam sited on a water body with a 5 mg/L standard for dissolved oxygen, 

but which is covered by a variance permitting 4 mg/L that will expire in two years. The 401 certification for the FERC 

license must require and be conditioned based on the assumption that the certificate holder will be required to meet the 

5 mg/L standard during the 48 years of the license term after the variance has expired. 

Response 

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

8.f.ii 

8.f.ii: Section D 

Comment ID 0240-A2.001.029 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

Section 131.14(c) discusses implementation of variances in NPDES permits. 

i. There is no discussion as to whether the individual needs of each discharger to a waterbody are taken into account 

when developing variances and permit limits. Could a discharge specific variance (DSV) penalize one discharger while 

helping another? Would the state approach the dischargers or would it be up to the dischargers to be aware of the 

potential for waterbody variances or DSVs? If a DSV is granted upstream, this could increase the load of the parameter 

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to the river potentially negatively impacting the downstream discharger(s). If the downstream discharger(s) did not 

previously have permit limits, could the elevated background concentration of the parameter lead to reasonable 

potential for exceedance of permit limits for the downstream discharger(s), which would then trigger the inclusion of 

permit limits on this parameter? The rule does not address these and other questions. 

Response 

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

8.f.ii 

8.f.ii: Section E 

8.f.ii: Section G 

Comment ID 0245-A2.001.004 

Author Name: Krapas Douglas 

Organization: Inland Empire Paper Company 

This is particularly true with respect to the manner in which section 303(d) listings will be dealt with during the pendency 

of a variance. As set forth in the proposal, states would continue to have an obligation to list impaired water bodies 

based on the approved water quality standards and to develop water quality improvement plans based on those listings. 

This will have a chilling effect in the state of Washington where EPA Region 10 is pushing for water quality criteria that 

would result in listings of most state waters as being impaired for PCBs. If the state must still make 303(d) 

determination on the underlying criteria where variances have been granted, it will prohibit any new or expanded 

discharges under 40 CFR § 122.44 and Carlotta Canyon within broad stretches of the state. This would be devastating 

to the Northwest economy and counterproductive to effective efforts to reduce toxics loadings. This is the case in 

Spokane River where Spokane County built a new treatment plant that is very effective in reducing PCB concentrations. 

While there is no variance in effect for the Spokane River, the state has been pursuing an effort to implement feasible 

toxics reduction through a regional task force in which all state permittees are required to participate. While there are 

expectations that this effort will prove successful, the approach is under attack as being inconsistent with section 303(d) 

in both federal and state court. 

The same scenario could play out under the proposed rule for variances. We accordingly ask that the final rule clarify 

that 303(d) listings and obligations under the Act would be subject to the variance rather than the underlying water 

quality standard. 

Response 

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

8.f.ii 

8.f.ii: Section A 

8.f.ii: Section B 

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Chapter 2 - Comment Documents Variances 

8.f.ii: Section D 

8.f.i 

Comment ID 0248-A2.001.019 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

Third, the proposed § 131.14(b)(1)(ii)(B) categorically rules out any variance that results in a lowering of water quality. 

This in effect means that a new permitted source can never obtain a variance, even where the new discharge point is 

part of an overall restructuring of a facility with multiple discharge points that would over time lead to reduced aggregate 

discharges. This language needs to be either modified or deleted. 

Response 

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

8.f.ii 

8.f.ii: Section B 

Comment ID 0251-A2.001.015 

Author Name: Wigal Jennifer 

Organization: Oregon Department of Environmental Quality 

Applicability of variances for CWA section 401 certifications (40 CFR §131.14(a)) 

EPA must clarify the process under which variances would be granted for CWA section 401 certification projects. 

Generally DEQ supports the eligibility of CWA section 401 certification projects to receive variances (40 CFR 

131.14(a)). Such a provision provides a clear authorizing mechanism for circumstances where a stream restoration, 

dam removal project, or other water enhancement project may cause short term exceedances of water quality 

standards in the near term, but ultimately improve overall stream health. 

The rule and preamble fail to address the expected interaction between the 401 certification and the variance approval 

process. Does the federal entity apply for a variance to exceed water quality standards in the short term, and the state 

then defers to the approved variance to certify that the federal license or permit will ultimately meet their state water 

quality standards? In addition, it's questionable whether a 401 certification through a variance process is more efficient 

than through the existing 401 certification process and/or allowance through a project specific regulatory rule. [FN1] 

Allowing a 401 project to apply for a variance should also not preclude the ability of a state to require terms and 

conditions the applicant must take in order to reduce water quality impacts as much as possible. Assuming it makes 

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Chapter 2 - Comment Documents Variances 

sense to include 401 certification projects as eligible for situations where water quality standards cannot be met in the 

short term, it would follow that EPA should add this factor to the §131.10(g) use attainability justification factors in the 

variance proposed rule at 40 CFR §131.14(b)(2). 

[FN1] In April 2012, in consultation with California and EPA Regions 9 and 10, Oregon adopted a rule in anticipation of 

a future dam removal on the Klamath River. The rule specified that a time schedule for compliance with water quality 

standards would be developed as part of the certification requirements, and that certain terms and conditions must be 

met to reduce water quality impacts. 

Response 

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

8.f.ii 

8.f.ii: Section D 

Comment ID 0262-A2.001.015 

Author Name: Rawlings Laurent 

Organization: Home Builders Association of Kentucky 

Water Quality Standard Variances (Section 131.14) 

HBAK acknowledges that EPA has long recognized that states (Kentucky) have discretion to grant variances to water 

quality standards where natural, manmade, or economic factors prevent a water quality standard in a waterbody from 

currently being attained. And HBAK applauds EPA's efforts to recognize the availability of water quality standards 

variances in the proposed section of 40 CFR 131.14. 

However, because variances are the subject of state discretion, to mandate EPA approval of each variance in advance 

for permittee specific variances can only be interpreted as yet another channel of access allowing EPA an inappropriate 

grope of permit objection. The NPDES permitting process, rather, allows EPA to appropriately object to any permit, for 

any reason, including any variance established for the permittee. 

Response 

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

8.f.ii 

8.f.ii: Section G 

Comment ID 0268-A2.001.033 

08/04/2015 05:01 PM EDT 2-1080
 
Chapter 2 - Comment Documents Variances 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

An EPA Approved Variance is Only Applicable for CWA Section 402 Permitting Purposes and in Issuing Certifications 

Under Section 401 of the Act 

We agree that EPA should clarify in rule what effect variances have on underlying components of water quality 

standards. We also believe that EPA has correctly described what a variance is intended to do, despite any confusion 

that might exist in some quarters. We do not agree, however, with EPA's proposal that variances should apply broadly 

to sources seeking 401 certifications. It is unclear why EPA seeks to have variances apply to 401 certifications other 

than those issued by states where EPA issues NPDES permits and where dam removal necessitates a waiver of water 

quality standards. EPA does not discuss the types of activities that are certified under section 401 and why they should 

be subject to variances, at least without a specific showing (i.e. not through a waterbody variance). Certifications that 

are not for NPDES permits are often for activities that pose the prospect of making pollution impairment worse rather 

than better, such as dredging. We are strongly opposed to waterbody variances but in the event that EPA proceeds to 

allow them we urge that they be applicable only to NPDES permittees unless a source seeking a 401 certification 

makes a showing its activities should be covered under the variance. A dredging activity is more likely to stir up and 

release so-called legacy toxic pollutants; the rationale to treat it under a variance should be made specifically focused 

on the issues related to the activity. Likewise, a 401 certification issued for a hydroelectric dam will be incorporated into 

a FERC license for a period of 30-50 years. Why would EPA want to have a 30-50 year license based on so-called 

temporary standards established by a variance? Why would EPA want activities such as dam operation and dredging 

swept up into a variance merely because of the difficulties of some point sources in meeting otherwise applicable 

WQBELs? How does this not lock in the prevention of movement towards attainment? Not only is this a poor policy 

decision, EPA does not even discuss its ramifications in the preamble. It is not clear why EPA puts NPDES permits and 

401 certifications in the same category when they are so different. 

Response 

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

8.f.ii 

8.f.ii: Section A 

8.f.ii: Section D 

Comment ID 0268-A2.001.050 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

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

(2)(i) Where a state adopts a WQS variance, the State regulations must continue to reflect the underlying designated 

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Chapter 2 - Comment Documents Variances 

use and criterion [begin strikeout] unless the State adopts and EPA approves a revision to the underlying designated 

use and criterion consistent with § 131.10 or § 131.11 [end strikeout] . 

(ii) The interim requirements specified in the WQS variance are in effect during the term of the WQS variance and apply 

for CWA section 402 permitting purposes [begin new text] and certifications under section 401 associated with such 402 

permit [end new text] [begin strikeout] and in issuing certifications under section 401 of the Act for the permittee(s), 

pollutant(s), and/or water body or waterbody segment(s) covered by the WQS variance [end strikeout] . For these 

limited purposes, the interim requirements will be the standards applicable for purposes of the CWA under 40 CFR 

131.21(c)-(e). 

Response 

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

8.f.ii 

8.f.ii: Section A 

8.f.ii: Section D 

8.f 

Comment ID 0278-A2.001.026 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

Finally, we question EPA's decision to limit the applicability of water quality variances to CWA §401 certifications and 

§402 permits. NACWA believes that variances have broader relevance throughout the water quality continuum, 

including impairment listings and TMDLs. 

Response 

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

8.f.ii 

8.f.ii: Section A 

8.F.III - VAR APP - TECH EFF LIMITS 

Comment ID 0123-A1.001.017 

Author Name: Chin Ryan 

Organization: NA 

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Chapter 2 - Comment Documents Variances 

Additionally, I support the proposal that a variance shall not be granted if the designated use and criterion can be 

achieved by implementing technology-based effluent limits. 

Response 

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

8.f.iii 

Comment ID 0130-A1.001.006 

Author Name: Schregardus Donald
 

Organization: Department of Defense, Office of the Assistant Secretary (Energy, Installations and Environment)
 

2. WQS Variances- Relationship to Technology-Based Requirements in CWA Sections 301(b) and 306 

Proposed Requirement or Section Addressed: In section lll.F.2.a.iii of the preamble, EPA is proposing to add paragraph 

(a)(3) to 40 CFR 131.14 to specify that a variance shall not be granted if the designated use and criterion can be 

achieved by implementing technology-based effluent limits required under sections 301(b) and 306 of the Act. 

Comment: EPA should consider the cost impact in regard to "technology-based requirements." 

Discussion: Under the proposed rule as drafted a variance may not be granted if there is any technology that may 

achieve the designated use and criterion without taking into consideration that the technology may not be appropriate 

due to excessive cost. 

Recommendation: Add "economically feasible" between "implementing" and "technology-based." 

Response 

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

8.f.iii 

Comment ID 0158-A1.001.027 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[Copied regulatory text and made no suggested edits.] 

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Chapter 2 - Comment Documents Variances 

(3) A WQS variance shall not be granted if the designated use and criterion addressed by the proposed WQS variance 

can be achieved by implementing technology-based effluent limits required under sections 301(b) and 306 of the Act. 

Response 

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

8.f.iii 

Comment ID 0166-A2.001.027 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[Copied regulatory text and made no suggested edits.] 

(3) A WQS variance shall not be granted if the designated use and criterion addressed by the proposed WQS variance 

can be achieved by implementing technology-based effluent limits required under sections 301(b) and 306 of the Act. 

Response 

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

8.f.iii 

Comment ID 0180-A2.001.021 

Author Name: Hobson Chris 

Organization: Southern Company 

Like UWAG, we also recommend that EPA clarify that states, when determining whether technology-based limits would 

make the variance unnecessary, are required to consider only EPA-promulgated national standards. They should not 

be required to make a "best professional judgment" (BPJ) case-by-case analysis for every discharger of a pollutant not 

currently subject to a technology standard. [FN1] 

[FN1] In this respect, Southern Company believes the "Hanlon Memorandum" calling for numerous "best professional 

judgment" determinations of "best available technology" is misguided. Memorandum, James A. Hanlon to Water 

Division Directors, Regions 1-10, "National Pollutant Discharge Elimination System (NPDES) Permitting of Wastewater 

Discharges from Flue Gas Desulfurization (FGD) and Coal Combustion Residuals (CCR) Impoundments at Steam 

Electric Power Plants" (June 7, 2010), http://www.epa.gov/npdes/pubs/hanlonccrmemo.pdf. 

08/04/2015 05:01 PM EDT 2-1084
 
Chapter 2 - Comment Documents Variances 

Response 

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

8.f.iii 

Comment ID 0189-A1.001.022 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

Variances not obtainable as to TBELs 

EPA proposes adding a provision that a variance shall not be issued if the designated use and criterion can be 

achieved by implementing technology-based effluent limits (TBELs). While agreeing in concept, we question the need 

for this clarification. Clearly a use is attainable if it can be attained by imposing technology-based effluent limits as such 

are practicable, by definition. 

Response 

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

8.f.iii 

Comment ID 0190-A1.001.014 

Author Name: Wagener Fritz 

Organization: NA 

Also note that 131.14(a)(3) states, "A WQS variance shall not be granted if the designated use and criterion addressed 

by the proposed WQS variance can be achieved by implementing technology-based effluent limits required under 

sections 301(b) and 306 of the Act." (emphasis added) Substituting this regulatory operational definition into the 

sentence: "However, the [time-limited designated use and criterion of a WQS variance] do not replace the designated 

use and criteria for the water body as a whole." This modified statement may now be accurate, as the WQS variance 

may not apply to the entire water body. 

Response 

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

8.f.iii 

08/04/2015 05:01 PM EDT 2-1085
 
Chapter 2 - Comment Documents Variances 

8.f.i 

Comment ID 0195-A1.001.023 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

Variances not obtainable as to TBELs 

EPA proposes adding a provision that a variance shall not be issued if the designated use and criterion can be 

achieved by implementing technology-based effluent limits (TBELs). While the NTWC agrees in concept, we question 

the need for this clarification. Clearly a use is attainable if it can be attained by imposing technology-based effluent 

limits as such are practicable, by definition. 

Response 

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

8.f.iii 

Comment ID 0198-A1.001.009 

Author Name: Card Bethany 

Organization: Massachusetts Department of Environmental Protection 

Additionally, EPA's proposed provision provides: "WQS variances are water quality standards subject to EPA review 

and approval or disapproval and must be consistent with this section." To date, and with EPA Region 1's approval, 

MassDEP has not adopted variances as WQS revisions, but, instead, has done so through the coordinated 

EPA/MassDEP National Pollutant Discharge Elimination System (NPDES) permitting process. This approach to WQS 

variance issuance has been consistent with MassDEP's EPA approved WQS. It is unclear why the current process 

needs to be changed. What benefit would ensue? MassDEP views the proposed change as both unnecessary as well 

as overly burdensome. The regulatory revision process, at least in Massachusetts, is far more complex and time 

consuming than the permitting process. 

Response 

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

8.f.iii 

8.f.i 

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Chapter 2 - Comment Documents Variances 

Comment ID 0201-A1.001.030 

Author Name: Godfrey Mike 

Organization: Alabama Power 

Separately, Alabama Power is concerned that additional clarity is needed with respect to proposed § 131.14(a)(3), 

which prohibits the granting of a WQS variance if a designated use and associated criteria could be achieved by and 

through the implementation of technology-based effluent limits. EPA should expressly provide in this subpart that States 

must only consider whether EPA-promulgated national effluent limitation guidelines could eliminate the need for the 

requested variance and further provide that States need not undertake a case-specific best professional judgment 

analysis to fulfill the proposed standard set out in § 131.14(a)(3). 

Response 

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

8.f.iii 

Comment ID 0203-A1.001.023 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

If some version of § 131.14 does appear in the final rule, it should be modified in certain specifics. Under § 131.14 as 

proposed, a variance would not be granted if a use and its criteria could be achieved by technology-based limits 

required by CWA §§ 301(b) and 306 (proposed § 131.14(a)(3)). EPA should clarify that states, when determining 

whether technology-based limits would make the variance unnecessary, are required to consider only EPA-promulgated 

national standards. They should not be required to make a "best professional judgment" (BPJ) case-by-case analysis 

for every discharger of a pollutant not currently subject to a technology standard. [FN6] 

The requirement that a variance not be granted if it would be unnecessary once BAT limits were met could result in 

unreasonable results in some cases, because it may happen that the timing of a variance will conflict with the 

compliance schedule for new national BAT regulation. Suppose, for example, that EPA promulgates a new BAT limit 

but allows it to be implemented over a 5- to 10-year schedule because it is not economically feasible for the industry to 

comply sooner. Suppose further that a particular permit is renewed with a water quality-based limit that cannot be met 

until the nationally applicable BAT equipment is installed. It is possible that EPA's proposed condition for variances (no 

variance if BAT limits would make it unnecessary) would prevent the state from allowing a temporary water quality 

standard variance while the equipment was being installed. This would make no sense. 

[FN6] In this respect, UWAG believes the "Hanlon Memorandum" calling for numerous "best professional judgment" 

determinations of "best available technology" is misguided. Memorandum, James A. Hanlon to Water Division 

Directors, Regions 1-10, "National Pollutant Discharge Elimination System (NPDES) Permitting of Wastewater 

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Chapter 2 - Comment Documents Variances 

Discharges from Flue Gas Desulfurization (FGD) and Coal Combustion Residuals (CCR) Impoundments at Steam 

Electric Power Plants" (June 7, 2010), http://www.epa.gov/npdes/pubs/hanlonccrmemo.pdf. 

Response 

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

8.f.iii 

Comment ID 0230-A1.001.022 

Author Name: Ettinger Albert
 

Organization: One of the counsel for the Environmental Law and Policy Center et al.
 

Variances not obtainable as to TBELs (78 FR at 54533) 

EPA is proposing to add a provision, proposed 40 CFR 14(a)(3), that a variance shall not be issued if the designated 

use and criterion can be achieved by implementing technologybased effluent limits. We agree with the concept although 

we question the necessity of this clarification. A use is by definition attainable if it can be attained by imposing 

technologybased effluent limits. 

Response 

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

8.f.iii 

Comment ID 0236-A2.001.024 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

WDNR supports the following clarifications: 

•Variances will not be granted if the designated use and criterion can be achieved by implementing technology-based 

effluent limits required under section 301(b) and 306. 

Response 

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

8.f.iii 

08/04/2015 05:01 PM EDT 2-1088
 
Chapter 2 - Comment Documents Variances 

Comment ID 0268-A2.001.034 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

Relationship to Technology-Based Requirements in CWA Sections 301(b) and 306 

We support EPA's rationale and proposed paragraph 40 C.F.R. § 131.14(a)(3). It is consistent with the statute and it is 

our view that any other interpretation would not be. 

Response 

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

8.f.iii 

Comment ID 0268-A2.001.051 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

[Copied regulatory text and made no suggested edits.] 

(3) A WQS variance shall not be granted if the designated use and criterion addressed by the proposed WQS variance 

can be achieved by implementing technology-based effluent limits required under sections 301(b) and 306 of the Act. 

Response 

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

8.f.iii 

Comment ID 0271-A1.001.011 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

11. Addition of paragraph (a)(3) to § 131.14. The Pueblo of Sandia has reviewed the proposed change on technologybased effluent limit requirement. This requirement should be the minimum for not granting a variance. States and tribes 

should retain discretion on granting and adopting variances. 

08/04/2015 05:01 PM EDT 2-1089
 
Chapter 2 - Comment Documents Variances 

Response 

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

8.f.iii 

Comment ID 0272-A2.001.025 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

The Water Protection Groups agree that EPA should specify in rule that a variance absolutely cannot be adopted if the 

water quality criterion can be achieved with either or a combination of technology-based requirements and aggressive 

permit requirements for best management practices such as low impact development for new development and retrofits 

for existing sources. Again, EPA should not promulgate rules that are a disincentive to consistent forward progress on 

improving water quality and meeting water quality standards. 

Response 

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

8.f.iii 

Comment ID 0283-A1.001.018 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

2. Relation to Technology-Based Limits 

The regulations should clarify that "technology-based limits" are those required under the Act. In California, many 

municipal dischargers have tertiary treatment requirements that are more stringent than the Act and federal regulation's 

secondary treatment requirements for POTWs. Thus, municipal dischargers should be able to get a variance so long as 

the variance is not below the requirements for secondary treatment (or complies with federal statutory variance criteria 

(e.g., 301(h) waivers)). 

Response 

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

8.f.iii 

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Chapter 2 - Comment Documents Variances 

8.G - VAR - SUB REQUIREMENTS 

Comment ID 0158-A1.001.028 

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.] 

(b) [begin strikeout] Submission Requirements: [end strikeout] [begin new text] Minimum requirements of a WQS 

variance: [end new text] 

Response 

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

8.g 

8.g: Section A 

8.c 

Comment ID 0166-A2.001.028 

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.] 

(b) [begin strikeout] Submission Requirements: [end strikeout] [begin new text] Minimum requirements of a WQS 

variance: [end new text] 

Response 

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

8.g 

8.g: Section A 

8.g: Section B 

Comment ID 0180-A2.001.020 

08/04/2015 05:01 PM EDT 2-1091
 
Chapter 2 - Comment Documents Variances 

Author Name: Hobson Chris 

Organization: Southern Company 

Second, we do not believe that EPA should dictate, as a matter of federal regulation, what needs to be submitted in 

order to justify a variance. How a state demonstrates the need for a variance, and what a state elects to consider as 

part of that demonstration, are squarely matters of state law, policy and procedure. The existing regulations make clear 

that "states may, at their discretion, include in their state standards, policies generally affecting their application and 

implementation, such as ... variances." 40 CFR §131.13. We support this existing level of detail, recognizing that 

whatever states put in their standards regulation will simply set the guideposts for particular variance decisions. For any 

particular decision, each agency record will need to stand on its own. And, of course, it will be subject to public notice 

and comment through the permitting process, as well as EPA review. For this reason, we recommend that EPA remove 

the "submission requirements" set forth in proposed 40 CFR §131.14(b), and the "documentation requirements" set 

forth in proposed 40 CFR §131.14(d). 

Response 

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

8.g 

8.g: Section B 

Comment ID 0259-A2.001.005 

Author Name: Naylor Char 

Organization: Puyallup Tribe of Indians 

While EPA does not go far enough in its proposed rule to maintain and protect high quality waters through the 

implementation of effective antidegradation policies, the language in the proposed rule to establish regulatory guidelines 

for WQS variances and renewals by adding 131.14 is paramount to improving state and tribal waters in the near term 

and eventually attaining WQS. Providing a uniform structure as to what is required in a variance submission, including 

interim numeric limits that apply during the term of the variance, limiting the variance to 10 years, and defining the basis 

according to 131.10(g) factors as to why and for how long a variance is needed will serve to drive improvements in 

water quality. Without such structure, variances will be used in Washington State to degrade water quality for the longterm. Currently, Washington State is considering variance durations for up to 40 years! 

Response 

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

8.g 

8.g: Section C 

8.g: Section D 

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Chapter 2 - Comment Documents Variances 

Comment ID 0268-A2.001.054 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

[Copied regulatory text and made no suggested edits.] 

(b) Submission Requirements: 

Response 

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

8.g 

8.g: Section C 

Comment ID 0278-A2.001.024 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

However, we do not believe that EPA needs to - or should - impose new substantive requirements on states in terms of 

what must be submitted in order to justify a variance. The existing regulations make clear that "states may, at their 

discretion, include in their state standards, policies generally affecting their application and implementation, such as ... 

variances." 40 CFR §131.13. We support that minimum level of detail, recognizing that whatever states put in their 

standards will simply set the floor for what states decide to do in the context of any particular variance decision. For the 

latter, each variance record will need to stand on its own and, of course, will be subject to public review and comment, 

as well as EPA review through the permitting process. How a state demonstrates the need for a variance, and what a 

state elects to consider as part of that demonstration, are squarely matters of state law, policy and procedure, and 

should not be dictated or overridden by a federal rule. 

Response 

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

8.g 

8.g: Section B 

8.b 

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Chapter 2 - Comment Documents Variances 

8.G.I - VAR REQ - INFO ID 

Comment ID 0151-A1.001.013 

Author Name: Tate Michael 

Organization: Kansas Department of Health and Environment 

Kansas supports identifying the pollutant, permittee(s) and receiving water in the variance along with any interim 

requirements. There is also reference in the proposed rulemaking that the interim requirements also include 

development and implementation of a Pollutant Minimization Program (PMP). However, PMP is just a concept; there is 

no definition of the term in the proposal or a description of what components comprise a PMP. 

Response 

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

8.g.i 

8.g.i: Section A 

8.g.i: Section B 

8.g.ii 

Comment ID 0158-A1.001.029 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[Copied regulatory text and made no suggested edits.] 

(1) A WQS variance must specify the following: 

(i) Identifying information: A WQS variance must identify the pollutant(s), permittee(s), and/or the water body or 

waterbody segment(s) to which the WQS variance applies. 

Response 

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

8.g.i 

8.g.i: Section A 

Comment ID 0166-A2.001.029 

08/04/2015 05:01 PM EDT 2-1094
 
Chapter 2 - Comment Documents Variances 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[Copied regulatory text and made no suggested edits.] 

(1) A WQS variance must specify the following: 

(i) Identifying information: A WQS variance must identify the pollutant(s), permittee(s), and/or the water body or 

waterbody segment(s) to which the WQS variance applies. 

Response 

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

8.g.i 

8.g.i: Section A 

Comment ID 0184-A2.001.029 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

• (d) WQS variance renewals: EPA may approve a WQS variance renewal if the State meets the requirements of this 

section and provides documentation of the actions taken to meet the requirements of the previous WQS variance. For a 

waterbody WQS variance renewal, the state must also provide documentation of whether and to what extent BMPs 

have been implemented to address the pollutant(s) subject to the WQS variance and the water quality progress 

achieved during the WQS variance period. Renewal of a WQS variance may be disapproved if the applicant did not 

comply with the conditions of the original WQS variance, or otherwise does not meet the requirements of this section. 

EPA's consideration of these comments is appreciated. 

Response 

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

8.g.i 

8.g.i: Section F 

8.g.v 

8.i 

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Chapter 2 - Comment Documents Variances 

Comment ID 0190-A1.001.010 

Author Name: Wagener Fritz 

Organization: NA 

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

131.14(b): "[begin strikeout] Submission [end strikeout] [begin new text] Minimum [end new text] Requirements" 

This section also contains WQS variance applicability requirements, information on implementing WQS variances in 

NPDES permits, and information on WQS variance renewals. 

131.14(b)(1)(i): "A WQS variance must specify the following: i) Identifying information: A WQS variance must identify 

the pollutant(s), [begin strikeout] permittee(s), [end strikeout] and [begin strikeout] /or [end strikeout] the water body or 

water body segment(s) to which the WQS variance applies. [begin new text] If applicable, a WQS variance must also 

identify the permittee(s) to which the WQS variance applies. [end new text] 

Based on the definition of "water quality standard" in 131.3(i), each WQS – even a WQS variance – must "consist of a 

designated use or uses [begin new text] for the waters of the United States [end new text] and water quality criteria 

[begin new text] for such waters [end new text] based upon such uses." (emphasis added) Therefore, a WQS variance 

must specify the water body(ies) or water body segment to which it applies. 

Response 

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

8.g.i 

8.g.i: Section C 

8.g.i: Section D 

8.c 

8.g 

Comment ID 0230-A1.001.023 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

Proposed 131.14(b) Submission requirements - identifying information 

The proposed language appears to be proper as a matter of submission requirements but see below for comments as 

to portions of the proposed rule. 

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Response 

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

8.g.i 

8.g.i: Section A 

Comment ID 0236-A2.001.019 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

WDNR supports the following clarifications: 

•Variances are time-limited designated uses and criteria that are targeted to a specific pollutant(s), source(s), and/or 

waterbody or waterbody segment(s) that reflect the highest attainable condition during the specified time period. 

Response 

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

8.g.i 

8.g.i: Section A 

Comment ID 0236-A2.001.027 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

Submission Requirements 

WDNR supports the following clarifications: 

• Applications for variances must contain the pollutant, the permittee, and the waterbody or waterbody segment(s) to 

which the variance applies. 

Response 

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

8.g.i 

8.g.i: Section A 

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Chapter 2 - Comment Documents Variances 

Comment ID 0268-A2.001.035 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

Components of a Variance: Identifying Information – Pollutant(s), Permittee(s), Location 

We support the rules' requiring the specification of the pollutant(s), the permittee(s), and the water affected by a 

proposed variance. We agree with EPA that this requirement will "help ensure full transparency and public participation 

on the applicability and scope of the variance." Fed. Reg. 54533. However, full transparency is not achieved simply by 

establishing what a state must submit to EPA. 

Response 

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

8.g.i 

8.g.i: Section A 

8.g.i: Section E 

Comment ID 0268-A2.001.055 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

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

(1) A WQS variance must specify the following: 

(i) Identifying information: A WQS variance must identify the pollutant(s) [begin new text] and, [end new text] 

permittee(s) [begin strikeout], and/or the water body or waterbody segment(s) [end strikeout] to which the WQS 

variance applies [begin new text] as well as the name and location of the receiving water [end new text] . 

Response 

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

8.g.i 

8.g.i: Section E 

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Chapter 2 - Comment Documents Variances 

Comment ID 0271-A1.001.012 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

12. Addition of paragraph (b)(1)(i) to § 131.14. The Pueblo of Sandia has reviewed the proposed addition and agrees 

with the proposed language. 

Response 

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

8.g.i 

8.g.i: Section A 

Comment ID 0283-A1.001.019 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

3. Identifying Information 

We support the information proposed for section 131.14(b)(1)(i), including the covered pollutants, permittee(s), and/or 

waterbody or waterbody segments to which the variance applies. 

Response 

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

8.g.i 

8.g.i: Section A 

8.G.II - VAR REQ - NUM INT REQ 

Comment ID 0128-A1.001.010 

Author Name: Boon Richard 

Organization: California Stormwater Quality Association 

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Chapter 2 - Comment Documents Variances 

As USEPA knows, municipal stormwater discharges are very different from traditional wastewater and industrial point 

source discharges. While legally a point source, as a practical matter, the methods for control of stormwater quality 

reflect their non-point source nature. We are concerned that the application of variances and the provisions outlined for 

obtaining a variance do not specifically account for differences in applicability of the variances to MS4 permits. For 

example, the requirement to include interim numeric criterion or numeric effluent conditions as part of the variance is 

not required for MS4 permits and should not be included as a required part of a variance. The current federal 

regulations do not require numeric effluent limitations and the requirement for an interim numeric criterion limits the 

applicability of variances for stormwater discharges, particularly where BMP-based effluent limitations have been used 

to implement the WQS in NPDES permits. The requirement to include numeric criterion or numeric effluent conditions 

should be removed (131.14(b)(ii)(A) and (B)), or clarified that this requirement is limited with respect to its application. A 

narrative approach could also achieve the intended purpose of a numeric criterion or numeric effluent conditions and 

provide greater flexibility in implementing the variance. 

Response 

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

8.g.ii 

8.g.ii: Section C 

Comment ID 0128-A1.001.014 

Author Name: Boon Richard 

Organization: California Stormwater Quality Association 

Recommendations: 

2. Delete the requirement to include interim numeric effluent limitations at 131.14(b)(ii)(A) and (B)). 

Response 

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

8.g.ii 

8.g.ii: Section D 

Comment ID 0129-A2.001.015 

Author Name: Steidel Robert 

Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc. 

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Chapter 2 - Comment Documents Variances 

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

5. Water Quality Standards Variances 

The inclusion of new water quality standards variance provisions is appropriate, and will support the long-standing 

practice of variances for proper special circumstances. We have two specific comments. 

A. EPA's proposal would require that the variance application and the variance itself include either interim numeric 

criteria or interim numeric effluent conditions reflecting the highest attainable condition for the affected permittee(s). 40 

CFR § 131.14(b)(1)(ii) (proposed). Although we agree that either numeric instream criteria or effluent limits would be 

appropriate in many circumstances, we believe that there are less frequent circumstances where permittee Pollutant 

Minimization Plans (PMPs) or other non-numeric limitation approaches are proper. For example the Preamble notes 

situations where a variance addresses a pollutant for which there is no treatment option, and suggests a PMP 

approach. 

Examples of such circumstances would be (1) legacy pollutants that affect not only the receiving waters, but also the 

sources of potable or other waters that supply the generators of wastewaters treated in Publicly Owned Treatment 

Works - whether affecting aquatic life (e.g. sediment toxics or nutrients) or other uses (e.g. mercury or PCBs) ; and (2) 

situations where the primary source is not point source-based (e.g. agricultural pesticides). There are likely other 

scenarios where variance-based PMPs would be appropriate and accomplish the intent of the proposed regulation. 

Accordingly, we request that EPA revise the provision to specifically provide for nonnumeric permit limitations in an 

appropriate circumstance. We suggest that the proposal in section 131.14 be reworded as follows (new wording 

underlined). 

(b) Submission Requirements: 

(1) A WQS variance must specify the following: 

... 

(A) The highest attainable interim use and interim numeric criterion, or 

(B) An interim numeric effluent condition [begin new text] or Pollutant Minimization Plan requirement [end new text] that 

reflects the highest attainable condition for a specific permittee(s) during the term of the variance .... 

Response 

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

8.g.ii: Section E 

08/04/2015 05:01 PM EDT 2-1101
 

8.g.ii 
Chapter 2 - Comment Documents Variances 

Comment ID 0131-A1.001.016 

Author Name: Rager David 

Organization: Sanitation District Number 1 of Northern Kentucky 

Finally, we would point out that in § 131.14(b)(1)(ii)(A) and § 131.14(b)(1)(ii)(B), EPA is introducing the new concepts of 

highest attainable interim use, criterion, and effluent condition. These concepts are confusing and unnecessary, and it is 

not clear why, in the course of appropriately implementing a variance, a specific interim use, criterion, or effluent 

condition must be identified. In previous guidance, EPA [FN3] has stated that variances are appropriate as long as 

"...reasonable progress will be made toward meeting the underlying or original standard." SD1 believes that the 

"reasonable progress" standard should be sufficient for evaluating variances. 

Further, we believe that highest attainable interim use, criterion, and effluent condition concepts will make pursuing a 

variance even more burdensome for states and stakeholders, as it will be extremely difficult to satisfy EPA's 

expectations as to the appropriate variance targets. 

[FN3] EPA. 1994. Water Quality Standards Handbook, Second Edition. EPA-823-B-94-005. 

Response 

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

8.g.ii 

8.g.ii: Section F 

Comment ID 0149-A2.001.003 

Author Name: Michael Gene 

Organization: City of Pueblo Wastewater Department 

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

a. Requirement that variances specify a numeric effluent condition. 

The Proposed Rule requires in Section 131.14(b)(1)(ii)(B) that a variance must specify "[a]n interim numeric effluent 

condition that reflects the highest attainable condition. [FN1] " We do not agree that a variance should be restricted to 

requiring a numeric condition during the term of the variance. In many circumstances, a narrative effluent condition may 

reflect the highest attainable condition and result in greater protection for the water body than a numeric effluent 

condition. Therefore, EPA should remove the word "numeric" from this section. 

i. Selenium and sulfate in Pueblo. 

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Chapter 2 - Comment Documents Variances 

Selenium and sulfate concentrations in groundwater, which contribute to high concentrations in the Pueblo WWTP 

effluent, create one situation in which a narrative, practice-based effluent condition would be the most appropriate 

expression of the "interim effluent condition that reflects the highest attainable condition" in a variance. Pueblo has been 

studying the causes and effects of selenium and sulfate loading to the Arkansas River for twenty years. The City 

commissioned selenium source characterizations to quantify the relationship among elevated selenium concentrations 

in soils, bedrock, groundwater, and surface water. These studies included a focused field investigation to quantify the 

effect of irrigation return flows on selenium and sulfate in Fountain Creek and the Arkansas River. Pueblo also 

commissioned surveys of fish tissue selenium concentrations and benthic macroinvertebrate populations in the 

Arkansas River. Finally, Pueblo conducted feasibility analyses for selenium and sulfate removal at the Pueblo WWTP to 

examine available technology, feasibility and costs for selenium removal from municipal wastewater. 

Based on these detailed studies conducted over twenty years, Pueblo concluded and the Colorado Water Quality 

Control Commission agreed that shallow groundwater in the University Park and Fairmount areas of the City of Pueblo 

has very high concentrations of selenium and sulfate. These two constituents are naturally occurring in the Pierre Shale 

formation that underlies this portion of Pueblo. While urbanization of the City is an irreversible human-caused condition 

that may result in increased water infiltration into and dissolution of selenium and sulfate in the shale, high natural 

ground water levels may contribute to the problem. Much of this shallow ground water flow is intercepted by basements 

in the University Park and Fairmount subdivisions and then in turn it is discharged to the sanitary sewer. The 

contribution of selenium and sulfates from industrial or other sources to the sewer system is virtually nil compared to the 

basement source. Prohibiting this discharge to the sewer system would increase the amounts of selenium and sulfate 

reaching Fountain Creek and subsequently the Arkansas River through naturally occurring groundwater flow. [FN2] 

Approximately 50 percent of the selenium load to the Arkansas River is removed through the serendipitous interception 

and removal of selenium by the Pueblo Wastewater Treatment Plant. However, during periods when ground water 

levels in the City are high, the concentrations of selenium and sulfate in the effluent exceed the concentrations that 

would be set as WQBELs based on water quality standards adopted by Colorado. The cost of alternative treatment 

technologies to further reduce selenium and sulfate would cause substantial and widespread economic and social 

impact, and would cause more environmental damage to correct the condition than to leave it in place. 

A variance based on a narrative effluent condition would be preferable to a numeric effluent limitation for several 

reasons: 

• The concentrations of selenium and sulfate in the Pueblo WWTP discharge spike, so that the concentrations exceed 

the calculated acute and chronic WQBELs. The frequency and magnitude of these events are unpredictable. They 

depend upon high precipitation triggering high groundwater levels in specific subdivisions within the City. Therefore, it is 

infeasible to calculate the attainable effluent concentrations and frequencies. 

• Setting effluent limitations equal to the highest historical selenium and sulfate concentrations would allow additional 

loads from industry. Effluent limits to accommodate the spikes would provide little or no control on human-caused 

sources of selenium. 

• Narrative, practice-based effluent limits defined in a variance can effectively prohibit industrial discharges of selenium 

and sulfate in excess of the underlying standards. This would more effectively prevent additional selenium and sulfate 

loads and represent a better effluent quality than feasible numeric effluent limitations. 

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• • •

• • • 

Chapter 2 - Comment Documents Variances 

• In addition, conditions of a variance can include continued monitoring of selenium and sulfate sources in the affected 

neighborhoods of Pueblo, and continued literature reviews. 

ii. Combined Sewer Overflow variances. 

The Proposed Rule's limitation to numeric effluent limits could also have the unintended effect of limiting states' ability 

to use variances as a tool to address combined sewer overflows (CSOs). Prior EPA policy and guidance encourages 

the use of variances to integrate the CSO control program with water quality standards reviews. The Combined Sewer 

Overflow Control Policy states that a WQS variance may be appropriate in limited circumstances for CSO-impacted 

waters. [FN3] EPA's guidance, Coordinating CSO Long-Term Planning with Water Quality Standards Review (2001) 

[FN4] further described the use of variances to coordinate the water quality standards and CSO programs. EPA stated 

that the information in a draft CSO Long-Term Control Plan (LTCP) would be expected to provide the information to 

justify a variance. Further, the implementation of portions of the LTCP and water quality monitoring were provided as 

examples of the conditions of permits. Id. at 34-35. 

Some states have issued variances for waters impacted by CSO discharges.[FN5] As anticipated by EPA guidance, 

these variances require continued implementation of the CSO long-term control measures consistent with the LTCP. 

They may also require water quality monitoring, public notifications, and other actions to minimize CSO/sanitary 

discharges. In most circumstances, numeric effluent limits are unlikely to be consistent with the CSO Control Policy. 

The Proposed Regulation's requirement for a numeric effluent limitation for variances limits the usefulness of variances 

for CSOs. This result would be inconsistent with Section 402(q) of the Act and EPA policy and guidance on CSO 

control. 

iii. Recommended revised language. 

If EPA promulgates a rule regarding variances, Pueblo recommends the following revision: 

§ 131.14 Water quality standards variances. 

(b)(1)(ii) ... A WQS variance must specify: 

(B) An interim [begin strikeout] numeric [end strikeout] effluent condition that reflects the highest attainable condition for 

a specific permittee(s) during the term of the variance. 

[FN1] Emphasis added. 

[FN2] See Colorado Water Quality Control Commission Regulation No. 32, Classifications and Numeric Standards for 

Arkansas River Basin, 5 CCR 1002-32 Statement of Basis and Purpose § 32.28.6 at 87-89. 

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Chapter 2 - Comment Documents Variances 

[FN3] 59 Fed. Reg. 18688, 18694 (April 19, 1994). A subsequent amendment to the CWA requires CSO permits to 

conform to the Policy. CWA § 402(q). 

[FN4] Available at http://water.epa.gov/scitech/swguidance/standards/handbook/upload/ 

2001_08_06_pubs_wqs_guide_final.pdf 

[FN5] See, e.g., Massachusetts Dept. of Environmental Protection, Final Determination to Extend Variance for 

Combined Sewer Overflow Discharges to Alewife Brook/Upper Mystic River, Sept. 1, 2013, available at 

http://www.mass.gov/eea/docs/dep/watedwastewater/a-thru-n/aIevd10.pdf 

Response 

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

8.g.ii 

8.g.ii: Section B 

Comment ID 0150-A1.001.014 

Author Name: Heisig-Mitchell Jamie 

Organization: Hampton Roads Sanitation District 

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

1. EPA's proposal would require that the variance application and the variance itself include either interim numeric 

criteria or interim numeric effluent conditions reflecting the highest attainable condition for the affected permittee(s). 40 

CFR § 131.14(b)(1)(ii) (proposed). Although HRSD agrees that either numeric instream criteria or effluent limits would 

be appropriate in many circumstances, HRSD believes that there are less frequent circumstances where permittee 

Pollutant Minimization Plans (PMPs) or other non-numeric limitation approaches are proper. For example the Preamble 

notes situations where a variance addresses a pollutant for which there is no treatment option, and suggests a PMP 

approach. 

Examples of such circumstances would be (1) legacy pollutants that affect not only the receiving waters, but also the 

sources of potable or other waters that supply the generators of wastewaters treated in POTWs - whether affecting 

aquatic life (e.g. sediment toxics or nutrients) or other uses (e.g. mercury or PCBs); and (2) situations where the primary 

source is not point source-based (e.g. agricultural pesticides). There are likely other scenarios where variance-based 

PMPs would be appropriate and accomplish the intent of the proposed regulation. Accordingly, HRSD requests that 

EPA revise the provision to specifically provide for non-numeric permit limitations in an appropriate circumstance. 

HRSD suggests that the proposal in section 131.14 be reworded as follows (new wording underlined). 

(b) Submission Requirements: 

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Chapter 2 - Comment Documents Variances 

(1) A WQS variance must specify the following: 

. . . 

(A) The highest attainable interim use and interim numeric criterion, or 

(B) An interim numeric effluent condition [begin new text] or Pollutant Minimization Plan requirement [end new text] that 

reflects the highest attainable condition for a specific permittee(s) during the term of the variance . . . . 

Response 

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

8.g.ii 

8.g.ii: Section E 

Comment ID 0153-A2.001.018 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

C. Relationship to permitting regulations. 

The State Water Board agrees with the preamble's discussion that the interim requirements should be specified in the 

variance to provide a legal basis for the permit limits that derive from and comply with WQS, as required by the 

permitting regulations at section 122.44(d)(vii)(A). (78 Fed. Reg. 54533, col. 3.) 

Response 

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

8.g.ii 

8.g.ii: Section A 

Comment ID 0153-A2.001.022 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

G. Numeric interim requirements that apply during a variance. 

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Chapter 2 - Comment Documents Variances 

The proposed WQS variance regulation allows for a time-limited lowering of the currently attained water quality if 

restoration activities through dam removal or wetland or stream reconfiguration activities render infeasible attaining a 

designated use and criterion. (40 C.F.R. §§ 131.14(a)(ii)(A)(B), 131.14(b)(2(ii); 78 Fed Reg. 54545, cols. 1-2.) 

The State Water Board recommends the availability of such WQS variances be expanded beyond restoration activities 

to include time-limited water conservation and water recycling activities to the extent that those activities will ultimately 

enhance attainment of designated uses and criteria. In California, water conservation is as important as wetland or 

stream restoration. Many water conservation actions will, at least temporarily, increase the pollutant concentrations in 

wastewater since some conservation actions reduce the amount of water available to dilute wastewater. Ultimately, 

however, water recycling and conservation efforts may improve water supply reliability, instream flows, and water 

quality. Similar to the way in which a WQS variance is desirable for restoration activities, the WQS variance regulation 

should allow for water conservation and water recycling activities that result in a time-limited lowering of water quality, 

but will ultimately help to achieve the objectives of the CWA to "restore and maintain the chemical, physical, and 

biological integrity of the Nation's waters." (CWA § 101(a).) 

Response 

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

8.g.ii 

8.g.ii: Section G 

Comment ID 0157-A1.001.016 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

The Chamber also opposes, as noted above, a requirement for a state to establish an interim highest attainable use 

(and supporting interim numeric criteria to support that use) as a condition of a waterbody variance. Because a variance 

is limited in duration and is intended to lead to attainment of a full use, requiring the additional burden for states to 

develop an interim highest attainable use is not necessary. For permittee specific variances, the variance will already 

require the permittee to utilize all affordable technology to minimize any current lowering of water quality. 

Response 

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

8.g.ii 

8.g.ii: Section F 

Comment ID 0158-A1.001.021 

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Chapter 2 - Comment Documents Variances 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

In addition, the proposed WQS variance regulation requires States to establish an interim highest attainable designated 

use, as well as supporting interim numeric water quality criteria, thereby disallowing narrative interim variance criteria, 

despite that States may establish narrative water quality criteria in compliance with the Act and implementing 

regulations. As a variance is intended to lead to meeting designated uses and is time-limited, requiring the States to 

develop an interim highest attainable use and corresponding numeric criteria places an unnecessary burden on States. 

In the case of a variance in water quality standards for a specific permitted discharge, the permit will require 

technologies identified in the permit that will minimize lowering of water quality must be utilized. Therefore, interim 

highest attainable use and corresponding interim numeric criteria are not necessary. 

Response 

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

8.g.ii 

8.g.ii: Section F 

Comment ID 0158-A1.001.030 

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.] 

[begin strikeout] (ii) WQS that apply during a variance for CWA section 402 permitting purposes and in issuing 

certifications under section 401 of the Act: A WQS variance must specify: (A) The highest attainable interim use and 

interim numeric criterion, or August 2013 EPA 820-F-13-027 (B) An interim numeric effluent condition that reflects the 

highest attainable condition for a specific permitee(s) during the term of the variance. Neither (A) nor (B) of this 

paragraph shall result in any lowering of the currently attained water quality unless a time limited lowering of water 

quality is necessary during the term of a variance for restoration activities, consistent with paragraph (b)(2)(ii) of this 

section. [end strikeout] 

Response 

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

8.g.ii 

8.g.ii: Section F 

8.g.ii: Section U 

8.f.i 

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Chapter 2 - Comment Documents Variances 

Comment ID 0160-A2.001.007 

Author Name: West Jeff 

Organization: Xcel Energy 

c. Requirement for a numeric effluent condition. 

The Proposed Rule requires in Section 131.14(b)(1)(ii)(B) that a variance must 

specify "[a]n interim numeric effluent condition that reflects the highest 

attainable condition." We do not agree that a variance should be restricted to 

requiring a numeric condition during the term of the variance. In some 

circumstances, a narrative effluent condition may reflect the highest attainable 

condition and result in greater protection for the water body than a numeric 

effluent condition. Therefore, EPA should remove the word "numeric" from this 

section. 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

Comment ID 0165-A2.001.015 

Author Name: Gunderson Steven 

Organization: Colorado Department of Public Health and Environment 

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

14. Variance Provisions - Requirement for Numeric Interim Requirements 

Colorado [begin new text] does not [end new text] support the requirement for interim effluent limits to be [begin new 

text] numeric [begin new text] . The provision should provide flexibility for States to use practice-based requirements, as 

long as compliance can be verified. The Colorado Example provided below explains why we need the ability to craft 

site-specific solutions to complicated problems. 

Colorado Example - Need for Narrative Interim Requirement 

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Chapter 2 - Comment Documents Variances 

Shallow groundwater in the University Park and Fairmount areas of the City of Pueblo has very high concentrations of 

selenium and sulfate. These two constituents are naturally occurring in the Pierre Shale formation that underlies this 

portion of Pueblo. While urbanization of the City is an irreversible human-caused condition that may result in increased 

water infiltration into and dissolution of selenium and sulfate in the shale, high natural ground water levels may also 

contribute to the problem. Much of this shallow groundwater flow is intercepted by basements in the University Park and 

Fairmount subdivisions and then in turn it is discharged to the sanitary sewer. The contribution of selenium and sulfates 

from industrial or other sources to the sewer system is virtually nil compared to the basement source. Prohibiting this 

discharge to the sewer system would probably increase the amounts of selenium reaching Fountain Creek and 

subsequently Arkansas River segment la through naturally occurring groundwater flow. 

Approximately 50 percent of the selenium load to the Arkansas River is removed through the serendipitous interception 

and removal of selenium by the Pueblo Wastewater Treatment Plant. The cost of alternative treatment technologies to 

further reduce selenium and sulfate in the effluent would be very high and would cause additional environmental 

impacts. No adverse impacts on beneficial uses from the discharges of selenium or sulfates have been documented. 

The selenium and sulfate concentrations in the discharge from the treatment facility occasionally rise dramatically so 

that the concentrations far exceed the levels in the receiving water and the calculated WQBELs . The frequency and 

magnitude of the spikes (dependent on precipitation and antecedent soil moisture) are not predictable or reliable. 

Selecting a high value that accommodates the peak would be difficult and would authorize discharges of more selenium 

and sulfate than necessary. 

In this situation, Colorado prefers a narrative, practice-based limit that includes a prohibition on industrial discharges of 

selenium and sulfate in excess of the underlying standards, along with continued monitoring of the sources in the 

affected neighborhoods. Such a limit provides greater control over selenium and sulfate sources than would be 

provided by numeric limits that would accommodate the peaks. Therefore, a narrative, practice-based limit would reflect 

a higher attainable effluent condition for the City of Pueblo than feasible numeric effluent limits. 

Colorado offers the following refinements to 131.12 (b): 

(B) An interim [begin strikeout] numeric [end strikeout] effluent condition that reflects the highest attainable condition for 

a specific permittee during the term of the variance. 

Response 

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

8.g.ii 

8.g.ii: Section B 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

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Chapter 2 - Comment Documents Variances 

Comment ID 0166-A2.001.021 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

In addition, the proposed WQS variance regulation requires States to establish an interim highest attainable designated 

use, as well as supporting interim numeric water quality criteria, thereby disallowing narrative interim variance criteria, 

despite that States may establish narrative water quality criteria in compliance with the Act and implementing 

regulations. As a variance is intended to lead to meeting designated uses and is time-limited, requiring the States to 

develop an interim highest attainable use and corresponding numeric criteria places an unnecessary burden on States. 

In the case of a variance in water quality standards for a specific permitted discharge, the permit will require 

technologies identified in the permit that will minimize lowering of water quality must be utilized. Therefore, interim 

highest attainable use and corresponding interim numeric criteria are not necessary. 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section F 

8.g.ii: Section H 

Comment ID 0166-A2.001.030 

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.] 

[begin strikeout] (ii) WQS that apply during a variance for CWA section 402 permitting purposes and in issuing 

certifications under section 401 of the Act: A WQS variance must specify: (A) The highest attainable interim use and 

interim numeric criterion, or August 2013 EPA 820-F-13-027 (B) An interim numeric effluent condition that reflects the 

highest attainable condition for a specific permitee(s) during the term of the variance. Neither (A) nor (B) of this 

paragraph shall result in any lowering of the currently attained water quality unless a time limited lowering of water 

quality is necessary during the term of a variance for restoration activities, consistent with paragraph (b)(2)(ii) of this 

section. [end strikeout] 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.g.ii 

8.g.ii: Section F 

8.g.ii: Section U 

Comment ID 0175-A1.001.022 

Author Name: Canton Steven 

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

Section 131.14(b) provides variance submission requirements. One requirement is that the variance "...must specify: 

(A) the highest attainable interim use and interim numeric criterion, or (B) an interim numeric effluent condition that 

reflects the highest attainable condition for a specific permittee(s) during the term of the variance." 

Response 

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

8.g.ii 

8.g.ii: Section D 

Comment ID 0175-A1.001.024 

Author Name: Canton Steven 

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

c. We do not think variances should be restricted to numeric criteria. The rule should be revised such that narrative 

criteria would also be allowed, which would provide the states and tribes an additional, and in some cases, a better and 

more appropriate management tool. 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

Comment ID 0182-A2.001.011 

08/04/2015 05:01 PM EDT 2-1112
 
Chapter 2 - Comment Documents Variances 

Author Name: Hahn Martha 

Organization: The Colorado Wastewater Utility Council 

Numeric Criteria - § 131.14(b)(1)(ii)(A): This section states that a variance must specify "the highest attainable interim 

use and interim numeric criterion." We believe that it may be appropriate for some variances to be narrative, rather than 

numeric since in some circumstances a narrative condition can represent an appropriate interim water quality condition 

for a discharge from a regulated entity. 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

Comment ID 0184-A2.001.019 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

WESTCAS does not agree that a variance should be restricted to requiring a numeric condition during the term of the 

variance. In some circumstances, a narrative effluent condition may reflect the highest attainable condition and result in 

greater protection for the water body than a numeric effluent condition. Therefore, WESTCAS recommends that the 

word "numeric" be deleted from this section. 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

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Chapter 2 - Comment Documents Variances 

Comment ID 0189-A1.001.023 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

Variances - Interim Requirements 

If a state decides that a WQS cannot be met for a period, it must impose interim limits that will allow the water body to 

meet the highest use attainable (proposed 40 CFR 131.14(c)). The Bands agrees that this is a necessary limitation on 

variances. 

Response 

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

8.g.ii 

8.g.ii: Section A 

Comment ID 0190-A1.001.011 

Author Name: Wagener Fritz 

Organization: NA 

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

If EPA is concerned that a variance might allow a discharger(s) to avoid having to meet the water quality criterion/water 

quality-based effluent requirements that support(s) full attainment of the pre-variance designated use, that issue is 

already addressed through the inclusion of 131.14(b)(1)(ii)(A) and (B), which requires, "A WQS variance must specify: 

(A) The highest attainable interim use and interim numeric criterion, [begin strikeout] of [end strikeout] [begin new text] 

and [end new text] (B) An interim numeric effluent condition that reflects the highest attainable condition for a specific 

permittee(s) during the term of the variance." Replacing the word "or" with "and" serves to achieve both purposes to 

ensure that the highest attainable use, as well as the highest attainable effluent condition for affected dischargers is part 

of the WQS variance. In requiring that the highest attainable effluent condition, e.g., effluent limitation, be part of the 

expression of the variance, EPA will also ensure that the duration and frequency components of any water quality 

criterion adopted as part of the WQS variance will be fully integrated into the development of NPDES permitting 

decisions and TMDLs based on the WQS variance. 

131.14(b)(1)(ii): " [begin strikeout] WQS that apply during a variance for CWA section 402 permitting purposes and in 

issuing certifications under section 401 of the Act. [end strikeout] A WQS variance must specify: ... " 

For the same reasons as discussed in comments on 131.14(a)(2)(i) and (2)(ii), the first sentence of this provision should 

08/04/2015 05:01 PM EDT 2-1114
 
Chapter 2 - Comment Documents Variances 

also be deleted. 

Response 

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

8.g.ii 

8.g.ii: Section U 

8.f.i 

8.g.i 

Comment ID 0192-A1.001.007 

Author Name: Reeder Thomas 

Organization: North Carolina Department of Environment and Natural Resources 

3) Clarification on Pollution Minimization Programs (PMP) 

In Section (F)(2)(b)(2), the preamble uses the specific terminology "Pollution Minimization Program (PMP)" when 

discussing requirements for variances and states a PMP is required when utilizing an effluent limitation to express the 

highest attainable condition for a water body receiving a variance. Specifically, NC DWR has situations where a 

variance addresses a pollutant for which the feasible wastewater treatment options have been identified, but may be 

insufficient to achieve the WQS in the near term. In this situation, an interim numeric water quality-based effluent 

condition reflecting the levels currently achievable constitute the highest attainable effluent condition. Clarification as to 

what constitutes an acceptable PMP is requested and the term "Pollutant Minimization Plan" could be defined in 40 

CFR § 131.3. 

Response 

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

8.g.ii 

8.g.ii: Section I 

Comment ID 0193-A2.001.009 

Author Name: Biggs Barbara 

Organization: Metro Wastewater Reclamation District 

Numeric Criteria – § 131.14(b)(1)(ii)(A): This section states that a variance must specify "the highest attainable interim 

use and interim numeric criterion." We believe that it may be appropriate for some variances to be narrative, rather than 

08/04/2015 05:01 PM EDT 2-1115
 
Chapter 2 - Comment Documents Variances 

numeric since in some circumstances a narrative condition can represent an appropriate interim water quality condition 

for a discharge from a regulated entity. 

Response 

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

8.g.ii 

8.g.ii: Section E 

8.g.ii: Section H 

Comment ID 0194-A1.001.017 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

2. Other proposed subsections that likewise seem to add to or significantly amend existing requirements in ways that go 

beyond existing law or understandings, with no apparent purpose other than to add complexity and burdens, include: 

• Requiring that a variance specify the "highest attainable interim use" (131.14(b)(1)(ii)(A)). 

• Requiring that the interim effluent limit reflect "the highest attainable condition for a specific permittee" 

(131.14(b)(1)(ii)(B)). 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section F 

Comment ID 0195-A1.001.024 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

Variances - Interim Requirements 

If a state decides that a WQS cannot be met for a period, it must impose interim limits that will allow the water body to 

meet the highest use attainable (proposed 40 CFR 131.14(c)). The NTWC agrees that this is a necessary limitation on 

08/04/2015 05:01 PM EDT 2-1116
 
Chapter 2 - Comment Documents Variances 

variances. 

Response 

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

8.g.ii 

8.g.ii: Section A 

Comment ID 0196-A1.001.019 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

WVCA is particularly concerned about the proposal to require interim criterion to be "numeric," when narrative water 

quality criteria clearly are permitted under the CWA. 

Response 

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

8.g.ii 

8.g.ii: Section D 

Comment ID 0198-A1.001.008 

Author Name: Card Bethany 

Organization: Massachusetts Department of Environmental Protection 

Variances 

Regarding variances, EPA explained in the Federal Register notice: "Variances are different from changes to a 

designated use and associated criteria in that they are intended as a mechanism to provide time for states, authorized 

tribes and stakeholders to implement adaptive management approaches that will improve water quality where the 

designated use and criterion currently in place are not being met, but still retain the designated use as a long term goal. 

Variances are limited in scope and are an environmentally preferable tool over a designated use change because 

variances retain designated use protection for all pollutants as they apply to all sources with the exception of those 

specified in the variance. Thus, when properly applied, a variance can lead to improved water quality over time, and in 

some cases, full attainment of designated uses due to advances in treatment technologies, control practices, or other 

changes in circumstances, thereby furthering the objectives of the CWA." 

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Chapter 2 - Comment Documents Variances 

The proposed rule sets strict information requirements, time limits and interim milestones for the use of variances. 

Moreover, EPA's language states: "A WQS variance must specify: (A) The highest attainable interim use and interim 

numeric criterion, or B) An interim numeric effluent condition that reflects the highest attainable condition for a specific 

permittee(s) during the term of the variance." To date, MassDEP has not set interim numeric criteria or numeric effluent 

limits in its variances. The new numeric requirement would prove quite problematic for MassDEP not only in the context 

of CSO variances and associated bacteria criteria, but also in the case of any variances of narrative criteria, such as 

nutrients. It is unclear how EPA's proposed variance requirements would apply to narrative criteria. Would states be 

required to include numeric criteria in variances for narrative nutrient criteria? If so, this seems wholly inconsistent with 

allowing narrative criteria in WQS at all. MassDEP requests that EPA clarify the regulatory language in this regard. 

Further, it is unclear what EPA means by "numeric effluent condition." MassDEP requests EPA to clarify this language 

as well. 

Response 

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

8.g.ii 

8.g.ii: Section B 

8.g.ii: Section D 

Comment ID 0203-A1.001.027 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

A variance under the proposal would have to specify the "highest attainable interim use" and an interim numeric 

criterion or an interim numeric effluent limitation reflecting the "highest attainable condition" for specific permittees 

(proposed § 131.14(b)(ii)). As with the requirement for setting an HAU under the "designated use" part of the proposal, 

this requirement would multiply the work for granting a temporary variance, and it is almost inconceivable it would not 

divert regulatory resources from more important tasks. 

Response 

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

8.g.ii 

8.g.ii: Section D 

Comment ID 0207-A1.001.016 

Author Name: Bodine Susan 

08/04/2015 05:01 PM EDT 2-1118
 
Chapter 2 - Comment Documents Variances 

Organization: American Farm Bureau Federation et al. 

•Interim conditions - As drafted, the reference to interim conditions that EPA could impose encroaches on state primacy 

and could be interpreted to authorize conditions on land use and nonpoint sources, exceeding EPA's CWA authority. 

Response 

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

8.g.ii 

8.g.ii: Section K 

Comment ID 0207-A1.001.034 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

In its proposed variance regulation, EPA proposes to require a state to identify and attain "the highest attainable interim 

use and interim criterion," and "the highest attainable condition during the specified [variance] period." As noted in the 

discussion of "highest attainable uses" above, this language is an invitation for litigation. To avoid that result, if EPA 

proceeds with its proposed variance regulation, EPA should modify the regulatory language to ensure that a "highest 

attainable interim use and interim criterion" and "highest attainable condition" are determined by the state based on 

data and information that the state determines is best available. 

The language of the proposed rule requires that any interim criterion be "numeric." EPA's regulations allow narrative 

water quality criteria. This proposal creates barriers to variances from narrative standards. Interim criteria in variances 

should not be limited to numeric criteria. 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

8.g.ii: Section J 

8.g.ii: Section L 

Comment ID 0207-A1.001.036 

Author Name: Bodine Susan 

08/04/2015 05:01 PM EDT 2-1119
 
Chapter 2 - Comment Documents Variances 

Organization: American Farm Bureau Federation et al. 

EPA also proposes to require a state to specify the interim conditions that must be met during the term of the variance. 

A variance renewal will be denied "if the applicant did not comply with the conditions of the original WQS variance." 

Response 

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

8.g.ii 

8.g.ii: Section M 

8.i 

Comment ID 0207-A1.001.042 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

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

(b) Submission Requirements: 

(1) A WQS variance must specify the following: 

(i) Identifying information: A WQS variance must identify the pollutant(s), permittee(s), and/or the water body or 

waterbody segment(s) to which the WQS variance applies. 

(ii) WQS that apply during a variance for CWA section 402 permitting purposes and in issuing certifications under 

section 401 of the Act: A WQS variance must specify: 

(A) The highest attainable interim use and interim criterion, [begin new text] as determined by the State[end new text], 

or 

(B) An interim effluent condition that reflects the highest attainable condition for a specific permittee(s) during the term 

of the variance, [begin new text] as determined by the State [end new text]. Neither (A) nor (B) of this paragraph shall 

result in any lowering of the currently attained water quality unless a time-limited lowering of water quality is necessary 

during the term of a variance for restoration activities, consistent with paragraph (b)(2)(ii) of this section. 

Response 

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

8.g.ii 

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Chapter 2 - Comment Documents Variances 

8.g.ii: Section L 

Comment ID 0207-A1.001.043 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

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

(iii) Date the WQS variance will expire, [begin new text] which shall be as soon as the State determines the WQS can 

be met. [end new text] 

Response 

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

8.g.ii 

8.g.ii: Section N 

Comment ID 0210-A1.001.011 

Author Name: Connelly Kent 

Organization: Coalition of Local Governments 

3. Numeric Criteria Reflecting Highest Attainable Conditions 

The EPA proposes additional language in Section 131.14(b)(1)(ii) that would require that the variance application and 

the variance itself include either interim numeric criteria or interim numeric effluent conditions reflecting the highest 

attainable condition for the affected permittee(s). 40 CFR §131.14(b)(1)(ii). Consistent with the above comments 

regarding a states' authority under the CWA, the EPA and other federal agencies are ill equipped to tailor flexible 

solutions to site specific water quality issues. Instead, Pollutant Minimization Plans or other site-specific non-numeric 

approaches deliver the efficacy and the expediency that the proposed rigid instream criteria cannot. 

For example, nonpoint sources such as pesticides or naturally occurring pollutants necessarily lack an acute point of 

insertion into the environment and, of course, should not be regulated the same as a point source pollutant. The nature 

of the source dictates the nature of the solution and applying additional obligations on states and tribes only frustrates 

the purpose of the CWA. 

Thus, the Coalition recommends revision of Section 131.14(b)(1)(ii) to allow for either a numeric condition or a Pollutant 

Minimization Plan. 

08/04/2015 05:01 PM EDT 2-1121
 
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Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

Comment ID 0218-A1.001.006 

Author Name: Elardo Pam 

Organization: King County Department of Natural Resources and Parks 

• Allow utilization of narrative limits in permits implementing variances where their use could be justified 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

Comment ID 0218-A1.001.014 

Author Name: Elardo Pam 

Organization: King County Department of Natural Resources and Parks 

King County requests the EPA to allow the utilization of narrative limits in permits implementing variances with 

justifiable uses. 

Another aspect of the variance criteria discussed in these proposed clarifications is the EPA's focus on numeric interim 

requirements, rather than offering the flexibility of utilizing narrative limits where their use could be justified. If it can be 

demonstrated through the documentation of Best Management Practices (BMP), or other actions, that a permittee is 

achieving the highest attainable control of a particular pollutant of concern, then the value and relevance of specifying 

numeric criteria is very limited. Also, demonstrating compliance with very low numeric criteria may not be measurable in 

some cases. Instead, a performance-based narrative limit could allow permittees to demonstrate continuous 

improvement of their process. For example, a municipal treatment permittee could commit to enhanced aspects of its 

pretreatment programs, inspections, key manhole tracking, and targeted reductions to influent concentrations at a 

facility. This would represent a performance-based BMP that reduces influent concentrations of a pollutant of concern. 

08/04/2015 05:01 PM EDT 2-1122
 
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Influent concentration declines may, for certain parameters, be much easier and less expensive to monitor and 

document. Such a narrative performance requirement could create pollutant reductions, even if concentrations were 

challenging to measure in effluent. 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

Comment ID 0225-A1.001.010 

Author Name: Blackham Leonard 

Organization: Utah Department of Agriculture and Food 

131.14 Water Quality Standards Variances (b) Submission Requirements: 

(1)(ii)(A)(B) 

Please refer to comment 131.3(m) highest attainable use [0225-A1.001.002]. This rational should be implemented when 

seeking a variance. 

Response 

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

8.g.ii 

8.g.ii: Section L 

5.e 

Comment ID 0230-A1.001.024 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

Variances Interim Requirements (78 FR at 54533) 

If a state decides that a WQS cannot be met for a period, proposed 40 C.F.R. 131.14(c) requires states impose interim 

limits that will allow the water body to meet the highest use attainable. We agree that this is a necessary limitation on 

08/04/2015 05:01 PM EDT 2-1123
 
Chapter 2 - Comment Documents Variances 

variances. 

Response 

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

8.g.ii 

8.g.ii: Section A 

Comment ID 0231-A2.001.018 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

Notwithstanding this threshold matter, if EPA decides to finalize a new section on variances, the agency should 

consider the following: 

• Variances should not be restricted to numeric criteria, and an option should be added to the criterion conditions stating 

that narrative criteria would also be allowed (e.g., seasonal variance). 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section H 

8.g.ii: Section J 

8.g.ii: Section O 

Comment ID 0234-A2.001.027 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

First, EPA proposes to require a State to identify and attain "the highest attainable interim use and interim criterion," 

and "the highest attainable condition during the specified [variance] period." As noted in the discussion of "highest 

attainable uses" above, this language is an invitation for litigation. To avoid that result, EPA should modify the 

regulatory language to ensure that a "highest attainable use and interim criterion" and "the highest attainable condition" 

are determined by the State based on data and information that the State determines is best available. 

08/04/2015 05:01 PM EDT 2-1124
 
8.g.ii 

Chapter 2 - Comment Documents Variances 

Second, the language of the proposed rule requires that any interim criterion be "numeric." EPA's regulations allow 

narrative water quality criteria. Interim criteria in variances should not be limited to numeric criteria because in many 

cases well-designed narrative criteria may lead to innovative and more cost-effective solutions. 

Response 

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

8.g.ii: Section D 

8.g.ii: Section H 

8.g.ii: Section J 

8.g.ii: Section L 

Comment ID 0236-A2.001.028 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

WDNR supports the following clarifications: 

• Variances must specify (1) the highest attainable interim use and numeric criterion that apply during the term of the 

variance, OR (2) an interim numeric effluent condition that reflects the highest attainable condition for the permittee 

during the term of the variance. 

• States or tribes must adopt the highest attainable use for UAAs and Variances to ensure that feasible progress toward 

meeting the use and criterion are made. 

• Highest attainable interim uses can be defined as "variance affected" or "variance modified" rather than adopting an 

alternate use from the state or tribes current use classification system as they would for a permanent change to a 

designated use. 

• Numeric variance limits are set based on feasibility of attaining the limit and protection of the closest designated use 

and criteria. 

• Determining the highest attainable condition and numeric interim requirements to apply to a waterbody variance 

should consider and evaluate pollutant reductions from all contributing sources including both point sources and nonpoint sources 

Response 

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

08/04/2015 05:01 PM EDT 2-1125
 
Chapter 2 - Comment Documents Variances 

8.g.ii 

8.g.ii: Section D 

8.c 

Comment ID 0236-A2.001.030 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

Recommended changes: 

• Section F.2.b.i.2. states that "In situations where a variance addresses a pollutant(s) for which no feasible wastewater 

treatment option can be identified, an interim numeric water quality-based effluent condition reflecting the levels 

currently achievable and a requirement to develop and implement a Pollutant Minimization Program (PMP) together 

would constitute the highest attainable effluent condition." 

o WDNR would suggest that the statement should instead read "...for which no feasible wastewater treatment option 

can be identified at this time..." 

o WDNR would also like to request clarification regarding the end-point of such variances. If no treatment options 

continue to be identified, and a PMP is the only avenue for reduction in effluent concentration, what does the permittee 

do when they have exhausted all options for pollutant minimization and still cannot attain the water quality standard? 

Response 

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

8.g.ii 

8.g.ii: Section P 

Comment ID 0240-A2.001.023 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

Section 131.14(b) provides variance submission requirements. One requirement is that the variance "...must specify: 

(A) the highest attainable interim use and interim numeric criterion, or (B) an interim numeric effluent condition that 

reflects the highest attainable condition for a specific permittee(s) during the term of the variance." 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.g.ii 

8.g.ii: Section D 

Comment ID 0240-A2.001.025 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

c. We do not think variances should be restricted to numeric criteria. The rule should be revised such that narrative 

criteria would also be allowed, which would provide the states and tribes an additional, and in some cases, a better and 

more appropriate management tool. 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section H 

8.g.ii: Section J 

Comment ID 0243-A2.001.012 

Author Name: Daniels Zane 

Organization: Ohio Coal Association 

That said, variances should not require the inclusion of a time limit and should not be restricted to only numeric criteria. 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section Q 

8.g.iii 

Comment ID 0244-A2.001.011 

08/04/2015 05:01 PM EDT 2-1127
 
Chapter 2 - Comment Documents Variances 

Author Name: Loomis Marion 

Organization: Wyoming Mining Association 

However, if EPA decides to include the new section on variances, WMA requests that the following points be 

considered: 

1. Variances should not be restricted to numeric criteria. Variances to narrative criteria should also be allowed. 

Response 

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

8.g.ii 

8.g.ii: Section H 

Comment ID 0249-A2.001.015 

Author Name: Calamita F. Paul 

Organization: General Counsel on behalf of The Wet Weather Partnership et al. 

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

5. Water Quality Standards Variances 

The inclusion of new water quality standards variance provisions is appropriate, and will support the long-standing 

practice of variances for proper special circumstances. That said, we have two specific comments. 

A. EPA's proposal would require that the variance application and the variance itself include either interim numeric 

criteria or interim numeric effluent conditions reflecting the highest attainable condition for the affected permittee(s). 40 

CFR § 131.14(b)(1)(ii) (proposed). Although we agree that either numeric instream criteria or effluent limits would be 

appropriate in many circumstances, we believe that there are less frequent circumstances where permittee Pollutant 

Minimization Plans (PMPs) or other non-numeric limitation approaches are proper. For example the Preamble notes 

situations where a variance addresses a pollutant for which there is no treatment option, and suggests a PMP 

approach. 

Examples of such circumstances would be (1) legacy pollutants that affect not only the receiving waters, but also the 

sources of potable or other waters that supply the generators of wastewaters treated in Publicly Owned Treatment 

Works - whether affecting aquatic life (e.g. sediment toxics or nutrients) or other uses (e.g. mercury or PCBs) ; and (2) 

situations where the primary source is not point source-based (e.g. agricultural pesticides). There are likely other 

scenarios where variance-based PMPs would be appropriate and accomplish the intent of the proposed regulation. 

Accordingly, we request that EPA revise the provision to specifically provide for non-numeric permit limitations in an 

appropriate circumstance. We suggest that the proposal in section 131.14 be reworded as follows (new wording 

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Chapter 2 - Comment Documents Variances 

underlined). 

(b) Submission Requirements: 

(1) A WQS variance must specify the following: 

. . . 

(A) The highest attainable interim use and interim numeric criterion, or 

(B) An interim numeric effluent condition [begin new text] or Pollutant Minimization Plan requirement [end new text] that 

reflects the highest attainable condition for a specific permittee(s) during the term of the variance . . . . 

Response 

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

8.g.ii 

8.g.ii: Section E 

8.g.ii: Section H 

Comment ID 0250-A2.001.010 

Author Name: Batterton Carol 

Organization: Water Environment Association of Texas, Texas Association of Clean Water Agencies, and Texas Water 

Conservation Association 

In addition, the requirement to identify the highest attainable interim use and related specific interim numeric limit 

needlessly complicates and extends the permitting process by requiring a preliminary study to make these findings 

rather than focusing on the crux of the issue-the determination as to whether a long-term site specific standard is 

appropriate. Because variances in Texas are time-limited due to a shortened permit term, it is unlikely that a permittee 

would be able to perform the studies necessary to develop the interim use and related limit and the final long term site 

specific standard. If EPA wants to shorten the time for variances, it should eliminate the need for the interim use and 

limit identification. 

Response 

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

8.g.ii 

8.g.ii: Section R 

8.c 

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Chapter 2 - Comment Documents Variances 

Comment ID 0252-A2.001.018 

Author Name: Fry Eric 

Organization: Peabody Energy 

Notwithstanding this threshold matter, if EPA decides to finalize a new section on variances, the agency should 

consider the following: 

• Variances should not be restricted to numeric criteria, and an option should be added to the criterion conditions stating 

that narrative criteria would also be allowed (e.g., seasonal variance). 

Response 

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

8.g.ii 

8.g.ii: Section J 

8.g.ii: Section O 

Comment ID 0257-A1.001.019 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

The Chamber also opposes, as noted above, a requirement for a state to establish an interim highest attainable use 

(and supporting interim numeric criteria to support that use) as a condition of a waterbody variance. Because a variance 

is limited in duration and is intended to lead to attainment of a full use, requiring the additional burden for states to 

develop an interim highest attainable use is not necessary. For permittee specific variances, the variance will already 

require the permittee to utilize all affordable technology to minimize any current lowering of water quality. 

Response 

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

8.g.ii 

8.g.ii: Section F 

Comment ID 0264-A2.001.020 

Author Name: Chard-McClary Shellie 

08/04/2015 05:01 PM EDT 2-1130
 
Chapter 2 - Comment Documents Variances 

Organization: Association of Clean Water Administrators 

5) Clarification on Pollution Minimization Programs (PMP) 

The preamble uses the specific terminology "Pollutant Minimization Program (PMP)" when discussing requirements for 

variances. The preamble states a PMP is required when utilizing an effluent limitation to express the highest attainable 

condition for a waterbody receiving a variance. [FN7] However, the PMP is never mentioned in the rule. If EPA has a 

specific concept of what constitutes a PMP, the PMP requirement should be included in the rule language, and the term 

"Pollutant Minimization Plan" should be defined in 40 CFR § 131.3. 

[FN7] Id. at p. 18, col. 2. 

Response 

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

8.g.ii 

8.g.ii: Section I 

Comment ID 0268-A2.001.037 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

Components of a Variance: Numeric Interim Requirements That Apply During a Variance 

We support EPA's proposal to add 40 C.F.R. § 131.14(b)(1)(ii) to require specifications. Because we do not support the 

use of waterbody variances, we encourage EPA to require identification of the highest attainable use that will apply 

during the term of the variance and both the numeric criterion and numeric effluent condition to protect that use specific 

to each discharger covered by the variance. Id. at 54533. We agree that states must be told to identify the requirements 

that apply during a variance as many states think they can skip this process and just use a variance as a sort of magic 

wand that makes current standards disappear. The benefit of establishing both the replacement criterion and the 

effluent condition is this: the use of a replacement criterion provides the "transparency" to the public that EPA says it 

supports. Without a replacement criterion members of the public are left comparing apples to oranges, that is criteria to 

effluent limits, and have no understanding of how much the variance varies from existing EPA-approved scientificallybased water quality standards. Lack of public understanding of this discrepancy undermines EPA's purported interest in 

variances' being used to lead to attainment by both point and nonpoint sources. It also undermines any independent 

calculation of what effluent limits should be in light of a variance and assumes the permit writer has made the correct 

calculations. As EPA well knows, permit writers make mistakes of various kinds that lead to errors in effluent limits. 

However, as the variance was established to provide relief to a specific permittee, the effluent limit is also essential to 

have clearly established. It should be included in the variance. Moreover, because EPA is also proposing to allow 

variances to run 10 years, it is essential that this information be captured clearly so that if new or renewed variances for 

08/04/2015 05:01 PM EDT 2-1131
 
Chapter 2 - Comment Documents Variances 

other sources discharging to the same receiving water are being considered the public and regulators can have a clear 

picture of the totality of the circumstances. 

EPA undermines its own attempts to provide both transparency and environmental protection by establishing that states 

need not take seriously its requirement to identify the highest attainable use. EPA seems to justify this approach by 

saying that it's not as if the state were making a permanent change to use designations. But 10 years to start and an 

unlimited number of variance renewals may result in de facto permanent use changes, which EPA appears to ignore. 

Over that period of time, the scientific understanding of what is required to protect uses will likely change. Without any 

connection established between uses and criteria in the variances there is no assurance provided that existing uses, at 

a minimum, will be protected, and no long-term assurance that the public can depend on the variance numeric criteria 

as protective of the identified uses. Instead, the standards will become a hodgepodge of uses and criteria that bear little 

or no relationship to each other. Again, to the extent that uses and water quality (criteria or effluent or loading) are 

divorced, EPA cannot assure protection of existing uses. 

In this section of the preamble EPA provides some little insight into what states "should" do to ensure that variances 

result in measurable improvements in water quality. Using passive voice, EPA suggests that where there is no feasible 

treatment option to identify, an interim "effluent condition" and a requirement to develop a Pollutant Minimization 

Program "would constitute" the condition a permittee needed to meet. Id. at 54534. It is unclear why EPA says it "would 

constitute" instead of actually requiring a Pollutant Minimization Program ("PMP") in its proposed rules. There is no 

rationale for not requiring a PMP for every NPDES permittee (and any other source) covered by a variance. Moreover, 

EPA's proposed rules do not provide assurance that a PMP, even if required by a state, would be enforceable. Without 

an enforceable series of steps to reduce pollution it can be expected no pollution will be reduced. 

Response 

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

8.g.ii 

8.g.ii: Section S 

8.g.ii: Section T 

Comment ID 0270-A1.001.008 

Author Name: Todd Andrew 

Organization: Colorado Water Quality Control Commission 

EPA's proposed rule requires that a variance must specify the highest numeric effluent condition that can be met during 

the term of the variance. The Commission does not agree that a variance should be restricted to requiring a numeric 

condition during the term of the variance, and believes that a narrative alternate condition may be appropriate in some 

circumstances, so long as the narrative condition represents the highest attainable interim water quality for that 

discharger and is protective of the existing uses. 

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Chapter 2 - Comment Documents Variances 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

8.g.ii: Section J 

Comment ID 0271-A1.001.013 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

13. Addition of paragraph (b)(1)(ii) to § 131.14. The Pueblo of Sandia has reviewed the proposed addition and agrees 

with the proposed language. 

Response 

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

8.g.ii 

8.g.ii: Section A 

Comment ID 0275-A2.001.005 

Author Name: Reeves Sarah 

Organization: Colorado Monitoring Framework 

WQS Variances 

Interim Effluent Condition - § 131.14(b)(1)(ii)(B). This section requires that a variance must specify "an interim numeric 

effluent condition that reflects the highest attainable condition" (emphasis added). There are times when a narrative 

rather than a numeric effluent condition better reflects the highest attainable condition and will result in greater 

protection of the waterbody. To protect such flexibility, the CMF requests that the word "numeric" be removed. 

Response 

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

8.g.ii 

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Chapter 2 - Comment Documents Variances 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

8.g.ii: Section J 

Comment ID 0280-A2.001.014 

Author Name: Aspatore Amanda 

Organization: National Mining Association 

NMA is particularly concerned about the proposal to require interim criterion to be "numeric," when narrative water 

quality criteria clearly are permitted under the CWA. 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

8.g.ii: Section J 

Comment ID 0282-A2.001.012 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

• The draft variance language requires development of a numeric interim criterion for the area covered by the variance. 

Ecology agrees that interim criteria should be developed for waters covered by a variance. However, the requirement 

for numeric criteria may not be desirable or feasible for some waters. EPA regulations allow the use of narrative criteria 

for toxics (40CFR131.11(2)). Ecology recommends that EPA include the term "narrative or numeric criteria" in the draft 

regulation instead of "numeric criteria." 

• Ecology recommends that EPA omit language requiring that the highest attainable interim use and interim criterion be 

used during the variance. Ecology agrees that the time period during which a variance is in effect should be as short as 

possible. As commented above and in the cover letter, Ecology thinks variances should be long enough to either (1) 

attain the designed use or meet criteria, or, (2) reach a level of use or water quality that is the highest attainable. If the 

timeline of a variance is developed to attain the use and/or criterion (or the highest attainable use/and or water quality) 

at the end of the variance period, then logically the water body will be out of compliance with the interim use and 

criterion for much of the term of the variance until the final state is reached. In situations where longer term variances 

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Chapter 2 - Comment Documents Variances 

are used, this creates an untenable compliance situation for states and dischargers. Washington recommends that EPA 

omit the "highest attainable" language from these draft sections and instead simply refer to "interim use and interim 

criterion." This is an area where states will need to have flexibility to develop uses and criteria that work best for each 

situation. 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

8.g.ii: Section J 

Comment ID 0283-A1.001.020 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

4. Numeric Interim Requirements 

No justification exists for requiring numeric effluent conditions during the term of the variance, particularly if the criteria 

to which the variance applies are narrative. The current federal regulations at 40 C.F.R. §122.44 do not require numeric 

effluent limitations. (See Communities for a Better Environment (CBE) v. State Water Board/Tesoro, 109 Cal.App.4th 

1089, 1103-07 (2003); 40 C.F.R. § 122.44(d) (federal rules do not mandate numeric limitations); 40 C.F.R. §122.2 (the 

definition of "effluent limitation" refers to any restriction and does not specify that the limitation must be numeric).) 

Further, current regulations allow for the implementation of Best Management Practices ("BMPs") if numeric effluent 

limitations are not feasible and for stormwater discharges (40 C.F.R. §122.44(k)). Thus, this new provision should not 

require numeric effluent conditions be prescribed. 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

8.g.ii: Section J 

Comment ID 0284-A2.001.012 

08/04/2015 05:01 PM EDT 2-1135
 
Chapter 2 - Comment Documents Variances 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

• The draft variance language requires development of a numeric interim criterion for the area covered by the variance. 

Ecology agrees that interim criteria should be developed for waters covered by a variance. However, the requirement 

for numeric criteria may not be desirable or feasible for some waters. EPA regulations allow the use of narrative criteria 

for toxics (40CFR131.11(2)). Ecology recommends that EPA include the term "narrative or numeric criteria" in the draft 

regulation instead of "numeric criteria." 

• Ecology recommends that EPA omit language requiring that the highest attainable interim use and interim criterion be 

used during the variance. Ecology agrees that the time period during which a variance is in effect should be as short as 

possible. As commented above and in the cover letter, Ecology thinks variances should be long enough to either (1) 

attain the designed use or meet criteria, or, (2) reach a level of use or water quality that is the highest attainable. If the 

timeline of a variance is developed to attain the use and/or criterion (or the highest attainable use/and or water quality) 

at the end of the variance period, then logically the water body will be out of compliance with the interim use and 

criterion for much of the term of the variance until the final state is reached. In situations where longer term variances 

are used, this creates an untenable compliance situation for states and dischargers. Washington recommends that EPA 

omit the "highest attainable" language from these draft sections and instead simply refer to "interim use and interim 

criterion." This is an area where states will need to have flexibility to develop uses and criteria that work best for each 

situation. 

Response 

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

8.g.ii 

8.g.ii: Section D 

8.g.ii: Section E 

8.g.ii: Section H 

8.g.ii: Section J 

8.G.III - VAR REQ - EXPIR DATE 

Comment ID 0123-A1.001.020 

Author Name: Chin Ryan 

Organization: NA 

However, since the variances are only granted to allow time to meet the designated use and criteria, I suggest the 

review be subject to a three-year period, with a possible granting of one extension for three years, up to a maximum of 

nine years (a total of 3 three-year periods; thereby meaning initial grant of three-years for the variance, another three08/04/2015 05:01 PM EDT 2-1136
 
Chapter 2 - Comment Documents Variances 

year extension if required, with a possible last three-year extension if required at the end of the first extension). As 

variances are subject to review on a triennial basis (as WQS), it is reasonable to subject them to the same time 

expiration to ensure that during the triennial review they are effectively evaluated and subject to scrutiny, ensuring the 

process is not a gloss but performed in good faith. It will also require that each variance time grant will at least be 

subject to one triennial review by the states and tribes, and therefore open to public review. Specifically due to the 

special nature of the variance, they should be subject to more scrutiny to ensure that the variance is truly and 

reasonably needed and that the designated use and criteria is being actively progressed toward. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section B 

Comment ID 0126-A2.001.004 

Author Name: Barry Marie 

Organization: Washoe Tribe of Nevada and California 

F. WQS Variances CFR 54534 - 3. Expiration Date 

Support putting a 10 year expiration date on variances consistent with §131.14(b)(2). This should not be used to allow 

permanent dischargers that negatively impact the quality of waters of the US. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section B 

Comment ID 0131-A1.001.004 

Author Name: Rager David 

Organization: Sanitation District Number 1 of Northern Kentucky 

EPA also establishes an arbitrary timeframe (10 years) on a variance in the proposed rulemaking, and then requires 

documentation for any subsequent renewals that includes "whether and to what extent BMPs have been implemented 

to address the pollutant(s) subject to the water quality standard (WQS) variance and the water quality progress 

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Chapter 2 - Comment Documents Variances 

achieved during the WQS variance period". This will establish a significant burden on permittees such as SD1 to 

generate proof for a regulatory standard that is not adequately defined and likely to be interpreted inconsistently across 

EPA regions. The likely outcome is increased costs for engineering and scientific studies, regulatory negotiations, and 

potential litigation. 

Response 

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

8.g.iii 

8.g.iii: Section D 

8.i 

12.a 

Comment ID 0131-A1.001.018 

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 8 - Limiting variances to a maximum of 10 years is unnecessary. In § 131.14(b)(1)(iii), EPA states that 

variances must "be as short as possible but expire no later than 10 years after state adoption." By limiting variance 

periods to a maximum of 10 years, EPA is creating a new policy that is unnecessary and potentially inappropriate for 

addressing some longterm water quality management issues. We request that § 131.14(b)(1)(iii) be revised as follows: 

Date the WQS variance will expire; States must include an expiration date for all WQS variances, consistent with 

paragraph (b)(2) of this section, WQS variances must be as short as possible [begin strikeout] but expire no later than 

10 years after state adoption [end strikeout] ." 

SD1 believes that eliminating the 10 year requirement is sufficient to achieve EPA's regulatory intent and will be useful 

for addressing short- and long-term water quality management scenarios. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0151-A1.001.010 

08/04/2015 05:01 PM EDT 2-1138
 
Chapter 2 - Comment Documents Variances 

Author Name: Tate Michael 

Organization: Kansas Department of Health and Environment 

Variance Review 

We are not certain why two reviews – during the triennial review and again at the end of the variance term - are 

necessary. The latter review is reasonable and necessary to gauge the need for renewing the variance for another term 

or confirm that termination of the variance is warranted. We question whether variances are a form of change in use 

subject to triennial review under 40 CFR 131.20. Variances are better suited as sanctioned deviations from criteria, but 

the underlying uses of the receiving water remain in place. Variance reviews should only occur at the end of their term, 

with some allowance for States and EPA to determine whether renewal or termination of the variance is the likely next 

step. 

Response 

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

8.g.iii 

8.g.iii: Section E 

Comment ID 0153-A2.001.019 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

EPA proposes to specify at section 131.14(b)(1)(iii) that variances include an explicit expiration date and must be as 

short as possible but be no longer than ten years. (Id., 54545, col. 1.) EPA should provide clarifying language for how 

the proposed variances will be implemented in permits and particularly how the term of the variance will be 

implemented consistent with permit terms. For example, clarification should be provided as to what would occur when a 

variance expires before the permit expires. 

D. Term of the variance. 

The preamble explains that the proposed ten-year term "is a reasonable duration for a variance, as it represents two 5-

year NPDES permit terms and provides adequate opportunity to implement measures to make feasible progress." (78 

Fed. Reg. 54534, col. 3.) The state regulatory processes to approve a variance policy and to issue permits 

implementing the variance can each be very lengthy. The State Water Board recommends that EPA clarify the rule to 

state that the ten-year term commences to run upon issuance of the permit or permits implementing the variance. 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.g.iii 

8.g.iii: Section F 

Comment ID 0153-A2.001.021 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

F. Duplicative triennial review and EPA review at the end of the term of the variance. 

Given the proposed short duration of a WQS variance, and the public notice and hearing processes inherent to a state's 

adoption of a variance policy and permit issuance, conducting triennial review may needlessly duplicate other public 

review and hearing processes. The State Water Board recommends that variances (as opposed to variance policies) 

not be subject to triennial review. 

Response 

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

8.g.iii 

8.g.iii: Section G 

Comment ID 0156-A1.001.013 

Author Name: Jackie Kepke Adam Link 

Organization: California Association of Sanitation Agencies and Tri-TAC 

WQS Variances [Notice Section III.F, FR 54531-54536. 40 CFR sections 131.14] 

The need for an adequately articulated variance process was one of CASA and Tri-TAC's original comments when 

concepts for revision to the WQS regulations were circulated in 2010, and we appreciate that USEPA has incorporated 

that concept into the proposed amendments. We are very supportive of the proposed time period for variances of up to 

10 years. This amount of time is needed not only for the reasons indicated in the preamble to the proposed regulation 

revisions, but also for at least two more reasons: (1) the water quality problems states are facing today are more 

complex and incremental than when the Clean Water Act was passed, particularly given that secondary and higher 

treatment has been accomplished across the vast majority of the country; and (2) federal funding has become 

extremely limited, if available at all, and economic considerations are of grave concern to municipalities. Thus, sufficient 

time is needed to implement programs in a practicable fashion. 

08/04/2015 05:01 PM EDT 2-1140
 
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Response 

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

8.g.iii 

8.g.iii: Section H 

Comment ID 0157-A1.001.017 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

EPA's proposed requirement that variances expire no later than 10 years after state adoption is arbitrary and unjustified. 

The conditions that exist at the time a variance is granted should determine the amount of time necessary to attain 

water quality standards. Accordingly, the Chamber opposes the establishment of an arbitrary 10-year maximum period 

on a variance. Such a timeframe is also potentially anti-productive since it would seem to force a state to conduct a 

UAA for a permanent removal of a use if it cannot be achieved in less than 10 years. It is also unclear under the 

proposal whether renewal of a variance that lasted 10 years would be allowable. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section C 

Comment ID 0158-A1.001.023 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

KDOW believes EPA's expectation that each variance granted by a State will be reviewed in the course of each triennial 

review and again at the termination of the variance is unrealistic and unnecessary and would place an undue burden on 

States. KDOW does not agree that two separate reviews of a variance one at the triennial review pursuant to 40 CFR 

§131.20, and a second at the end of the variance term, are necessary. Examination of the variance at the end of its 

term is reasonable and necessary to determine whether the variance should be renewed or terminated. However, an indepth review of every variance at each triennial review places an unnecessary burden on States. The concept of a 

triennial review of variances stems from EPA's interpretation that a variance constitutes a change in use (§131.20) and 

unmet uses must be reviewed at each triennial review. KDOW recommends that the final WQS regulation specifically 

state that review of a variance is required only at the end of its term. 

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Response 

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

8.g.iii 

8.g.iii: Section E 

8.g.iii: Section G 

Comment ID 0158-A1.001.031 

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.] 

(iii) [begin strikeout] Date [end strikeout] [begin new text] Length of the term of [end new text] the WQS variance [begin 

strikeout] will expire [end strikeout] : States must include [begin strikeout] an expiration date [end strikeout] [begin new 

text] the length of the term [end new text] for all WQS variances, consistent with paragraph (b)(2) of this section. WQS 

variances must be as short as possible but [begin strikeout] expire no later [end strikeout] [begin new text] have a length 

of term no longer than the time required for the waterbody to attain its use [end new text] [begin strikeout] than 10 years 

after state adoption [end strikeout]. 

Response 

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

8.g.iii 

8.g.iii: Section I 

Comment ID 0161-A2.001.008 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

6. Section §131.14(b)(1)iii states the "Date the WQS variance will expire: States must include an expiration date for all 

WQS variances, consistent with paragraph (b)(2) of this section. WQS Variances must be as short as possible but 

expire no later than 10 years after state adoption." 

• Please provide clarification on the options after the variance expires as there may be instances when a variance 

continues to be needed. The DNR understands that in the November 14, 2013, public webinar about this proposed rule, 

it was stated that if a variance expires, "they have to go through their whole rulemaking process, re-justify, get 

reapproved by EPA," and that the "purpose of the expiration date is to provide a specific date for when everyone comes 

08/04/2015 05:01 PM EDT 2-1142
 
Chapter 2 - Comment Documents Variances 

together again to look at variance." Please provide more specificity in the rule on what happens if you reach that 10-

year expiration date, and what your options would be. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section C 

Comment ID 0165-A2.001.016 

Author Name: Gunderson Steven 

Organization: Colorado Department of Public Health and Environment 

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

15. Variance Provisions - Restriction on Expiration Date 

Colorado understands the need to ensure that variances are thoroughly evaluated and re justified from time to time, 

however we do not support an inflexible 10-year time limit. At first blush, two 5- year permit terms seems reasonable, 

but a strict 10-year limit makes no accommodation for state regulatory and administrative processes, and in effect 

becomes one permit term. 

More importantly, because of the depth and complexity of information needed to establish the need for a variance 

(meeting the 131.10(g) factors), variances will only be used in the most intractable of situations. Each situation will have 

timing aspects that will have to be carefully considered. It is not helpful or effective to prejudge the fact package and set 

an arbitrary cut-off date. 

We strongly urge EPA to allow states to set expiration dates on a case-by-case basis. EPA has a review and approval 

role for each variance since these are WQS actions. If EPA finds that the state has inappropriately set an expiration 

date, EPA can disapprove that action. 

For both reasons, Colorado does not support the 10-year time limit. We offer the following refinements to 

131.14(b)(1)(iii): 

(iii) Date the WQS variance will expire: States must include an expiration date for all WQS variance, consistent with 

paragraph (b)(2) of this section. WQS variance must be as short as possible [begin strikeout] but expire no later than 10 

years after adoption [end strikeout]. 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0166-A2.001.023 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

KDOW believes EPA's expectation that each variance granted by a State will be reviewed in the course of each triennial 

review and again at the termination of the variance is unrealistic and unnecessary and would place an undue burden on 

States. KDOW does not agree that two separate reviews of a variance one at the triennial review pursuant to 40 CFR 

§131.20, and a second at the end of the variance term, are necessary. Examination of the variance at the end of its 

term is reasonable and necessary to determine whether the variance should be renewed or terminated. However, an indepth review of every variance at each triennial review places an unnecessary burden on States. The concept of a 

triennial review of variances stems from EPA's interpretation that a variance constitutes a change in use (§131.20) and 

unmet uses must be reviewed at each triennial review. KDOW recommends that the final WQS regulation specifically 

state that review of a variance is required only at the end of its term. 

Response 

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

8.g.iii 

8.g.iii: Section E 

8.g.iii: Section G 

Comment ID 0166-A2.001.031 

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.] 

(iii) [begin strikeout] Date [end strikeout] [begin new text] Length of the term of [end new text] the WQS variance [begin 

strikeout] will expire [end strikeout] : States must include [begin strikeout] an expiration date [end strikeout] [begin new 

text] the length of the term [end new text] for all WQS variances, consistent with paragraph (b)(2) of this section. WQS 

variances must be as short as possible but [begin strikeout] expire no later [end strikeout] [begin new text] have a length 

of term no longer than the time required for the waterbody to attain its use [end new text] [begin strikeout] than 10 years 

after state adoption [end strikeout]. 

08/04/2015 05:01 PM EDT 2-1144
 
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Response 

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

8.g.iii 

8.g.iii: Section I 

Comment ID 0170-A1.001.007 

Author Name: Faggert Pamela
 

Organization: Dominion Resources Services, Inc.
 

In addition to the concerns associated with 316(a) variances, we have concerns that the proposed revisions will make 

adoption and compliance with WQS variances more difficult. Specifically, the proposed revisions would limit variances 

to 10 years, with renewal dependent on implementation of BMPs and a broad definition of water quality progress. The 

selection of 10 years based on two permit cycles is arbitrary and does not consider site-specific factors that may drive a 

longer variance term. Any language addressing limits to variance length should allow States to determine when WQS 

variances are no longer appropriate based on attainability of the WQS. Therefore, we request that the 10 year limit and 

renewal that the 10 year limit and renewal language be removed from the propose revisions. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section D 

Comment ID 0175-A1.001.023 

Author Name: Canton Steven
 

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

Another requirement is that the expiration date be given, stating "...variances must be as short as possible but expire 

no later than 10 years after state adoption." 

Response 

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

8.g.iii 

8.g.iii: Section T 

08/04/2015 05:01 PM EDT 2-1145
 
Chapter 2 - Comment Documents Variances 

Comment ID 0175-A1.001.025 

Author Name: Canton Steven
 

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

d. Regarding the expiration date, while 10 years may appear to be sufficient as it would cover two permit cycles, 

realistically, a longer time period is needed. Because of the administrative actions related to permitting, such as review 

of treatment plans, public hearings, comment-response cycles, judicial review, and review of technological or other 

limitations. etc., a 12-14 year timeframe would be more appropriate and more achievable for all involved parties. 

e. Due to the need for an extended timeframe, and the fact that expiration dates for variances would not be in alignment 

with the states triennial cycle, variances should not be required to be reviewed on a triennial basis as is suggested in 

the preamble. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section G 

Comment ID 0176-A2.001.015 

Author Name: Lazarus Jay
 

Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM)
 

Variances should have performance-based requirements, not a prescriptive time limit as all variances do not fit into a 

single category. 

Response 

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

8.g.iii 

8.g.iii: Section K 

Comment ID 0177-A2.001.011 

Author Name: Klotz Mark 

08/04/2015 05:01 PM EDT 2-1146
 
Chapter 2 - Comment Documents Variances 

Organization: New York State Department of Environmental Conservation 

It is requested that EPA revise 131.14(b)(1)(iii) or clarify that state adoption of a variance can be based on the date a 

permit is issued. In other words, the variance "clock" does not start for a particular permittee until its permit is issued to 

contain variance-based requirements. This will allow for a variance to be in effect for up to two permit terms and will 

avoid misinterpretation and the administrative difficulty that would result if variance-based permit requirements would 

routinely expire in the middle of permit terms (if the new regulation makes it difficult to align the 10 year variance period 

and the permit periods). 

Response 

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

8.g.iii 

8.g.iii: Section F 

Comment ID 0178-A2.001.010 

Author Name: Burnell Barry 

Organization: Idaho Department of Environmental Quality 

Variances should have a limited term. But that term should take into account the pollutant, the existing technology 

available to treat that pollutant, the receiving water, and the discharger(s) specific situation. In other words there needs 

to be flexibility on duration, no regulatory maximum duration. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0178-A2.001.013 

Author Name: Burnell Barry 

Organization: Idaho Department of Environmental Quality 

We echo ACWA's comments on the term of variances (rather than expiration). 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.g.iii 

8.g.iii: Section I 

Comment ID 0180-A2.001.016 

Author Name: Hobson Chris 

Organization: Southern Company 

In particular, we support the concept of 10-year variances with the opportunity for renewal. 

Response 

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

8.g.iii 

8.g.iii: Section H 

8.i 

Comment ID 0181-A2.001.012 

Author Name: Sims Shaun 

Organization: Wyoming Association of Conservation Districts 

Page 54532 – F. WQS Variances: i. The Scope of a Variance: A waterbody variance provides time for the state or tribe 

to work with both point and nonpoint sources to determine and implement adaptive management approaches on a 

waterbody / watershed scale to achieve pollutant reductions and strive toward attaining the water body's designated use 

and associated criteria. 

Page 54534 – F. WQS Variances: 3. Expiration Date: The EPA believes that up to 10 years is a reasonable duration for 

a variance... A maximum of 10 years is also sufficient to reflect changing circumstances, such as the availability of new 

economic information or affordable treatment technology that may impact whether or not a variance is still warranted. 

COMMENT: 

A timeframe of 10 years to achieve pollutant reductions and to attain the water body's designated use and associated 

criteria is likely somewhat unrealistic. Conservation Districts in Wyoming have been implementing Best Management 

Practices in various watersheds throughout the state for several decades and based on this experience we question 

whether a 10 year time frame is sufficient. In addition, funding levels also often dictate the ability to implement and this 

should be recognized. WACD recommends that EPA either increase the term of the variance, solidify that a 10-year 

variance could be renewed and/or extended or provide states the flexibility to decide the duration of the variance. 

08/04/2015 05:01 PM EDT 2-1148
 
Chapter 2 - Comment Documents Variances 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section C 

Comment ID 0185-A1.001.008 

Author Name: Poltak Ronald 

Organization: New England Interstate Water Pollution Control Commission 

The states are also seeking clarity on whether water quality variances must be reviewed during the triennial review in 

addition to the variance review at the end of the variance term. 

Response 

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

8.g.iii 

8.g.iii: Section E 

8.g.iii: Section G 

Comment ID 0188-A2.001.008 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

6. Section §131.14(b)(1)iii states the "Date the WQS variance will expire: States must include an expiration date for all 

WQS variances, consistent with paragraph (b)(2) of this section. WQS Variances must be as short as possible but 

expire no later than 10 years after state adoption." 

• Please provide clarification on the options after the variance expires as there may be instances when a variance 

continues to be needed. The DNR understands that in the November 14, 2013, public webinar about this proposed rule, 

it was stated that if a variance expires, "they have to go through their whole rulemaking process, re-justify, get 

reapproved by EPA," and that the "purpose of the expiration date is to provide a specific date for when everyone comes 

together again to look at variance." Please provide more specificity in the rule on what happens if you reach that 10-

year expiration date, and what your options would be. 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section C 

Comment ID 0189-A1.001.024 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

Variances - Expiration Date 

This proposed provision allows for a variance to last up to 10 years. This is not acceptable. Ten years is too long to go 

without reconsidering whether the circumstances that made the variance reasonable have changed. It represents 

(theoretically) two permit cycles, during which the regulated facility should have made demonstrable progress towards 

compliance with WQS. Five years is a more appropriate time limit on variances, and has already been established for 

waters in the Great Lakes Basin under the Great Lakes Initiative. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.k 

Comment ID 0190-A1.001.016 

Author Name: Wagener Fritz 

Organization: NA 

Page 54534: Nothing in the final rule or preamble to the final rule should prohibit a state's authority to adopt revisions to 

a WQS variance, or to replace any provision of a WQS variance prior to its expiration date. Such actions may be 

warranted in order to reflect changing circumstances, such as the availability of new economic information or a 

treatment technology that has become available or affordable since the time of a state's adoption of the current WQS 

variance. For example, given that research into new treatment options and/or pollutant prevention programs can be 

typically completed in less than five years, it is likely that WQS variance conditions for a variance with a term of longer 

than five years can be refined during the review of the application for re-issuance of an NPDES permit for permittee(s) 

to which the variance applies, and those WQS variance refinements could be included as provisions of a new/modified 

WQS variance. 

08/04/2015 05:01 PM EDT 2-1150
 
Chapter 2 - Comment Documents Variances 

Response 

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

8.g.iii 

8.g.iii: Section J 

Comment ID 0191-A2.001.010 

Author Name: Hirst Barbara 

Organization: New Jersey Department of Environmental Protection 

Variances: New Jersey supports the concept of extending the effective time frame for a variance. However, 

consideration should be given to allowing an effective time frame longer than the currently proposed 10 years and 

longer than the suggested revision to 12-14 years when appropriate, for example, in the case of legacy pollutants where 

there effective treatment options are limited or lacking altogether. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0192-A1.001.006 

Author Name: Reeder Thomas 

Organization: North Carolina Department of Environment and Natural Resources 

III. Water Quality Standards Variances 

NC DWR supports EPA's efforts to provide flexibility in approving variances to water quality standards. Approved 

variances in NC are not adopted into regulations, but are approved and reviewed by the Environmental Management 

Commission and are implemented through the NPDES process. Variances have been put into practice by NC DWR 

with success. Based on that achievement, NC DWR offers the following comments: 

1) NC DWR prefers to maintain the current mechanism for review of variances through both the Triennial Review 

process and the NPDES permit issuance. 

NC DWR employs EPA's interpretation that a variance constitutes a temporary change in water quality standards 

08/04/2015 05:01 PM EDT 2-1151
 
Chapter 2 - Comment Documents Variances 

applicable to a single discharger (§ 40 CFR Part 131.20) and unmet uses/criteria must be reviewed at each triennial 

review. We support stating that variances do not need to be evaluated at each triennial review and that variance 

reviews would only take place upon renewal of the applicable NPDES permit. Additionally, we suggest that the 

regulations allow a "streamlined review" simply addressing the requirement in 40 CFR § 131.20 of whether "any new 

information has become available" that would alter the variance. 

2) NC DWR does not support a ten year variance term. 

While variances are designed to be a shorter-term relief to a discharger while new technology is developed or 

purchased, the reality is that for a number of parameters new technology may be a long time coming, if ever. The 

economic burden to achieve compliance with certain water quality standards before the variance "expires" must be 

considered. We strongly suggest that the term "expiration" should be modified to express the concept that the variance 

has a specific term, and that the term, after evaluation, can be renewed. The implication that there is "no renewal" 

would require that the entire variance process be restarted, a costly and time consuming process in a time that funding 

and staffing are being reduced. We suggest a revision to the proposed regulation at 40 CFR § 131.14(b)(1)(iii) to 

include the phrase "length of the term of a variance" and removal of language indicating that the term will expire in ten 

years. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section E 

8.g.iii: Section G 

8.g.iii: Section I 

8.i 

12.a 

Comment ID 0194-A1.001.018 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

2. Other proposed subsections that likewise seem to add to or significantly amend existing requirements in ways that go 

beyond existing law or understandings, with no apparent purpose other than to add complexity and burdens, include: 

• Requiring that variances expire no later than 10 years after state adoption (131.14(b)(1)(iii)). Given that any variance 

must be renewed as a part of the state triennial review process, this seems unnecessary. 

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Chapter 2 - Comment Documents Variances 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section G 

8.g.iii: Section L 

8.g.iii: Section T 

Comment ID 0195-A1.001.025 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

Variances - Expiration Date 

This proposed provision allows for a variance to last up to 10 years. This is not acceptable. Ten years is too long to go 

without reconsidering whether the circumstances that made the variance reasonable have changed. It represents 

(theoretically) two permit cycles, during which the regulated facility should have made demonstrable progress towards 

compliance with WQS. Five years is a more appropriate time limit on variances, and has already been established for 

waters in the Great Lakes Basin under the Great Lakes Initiative. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.k 

Comment ID 0196-A1.001.020 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

Likewise, the proposed limit on variances of 10 years curtails a state's ability to make a determination that a water 

quality standard has become attainable. 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0197-A1.001.016 

Author Name: Garrison Naoh 

Organization: Natural Resources Defense Council 

However, if EPA proceeds with this course, we suggest that the Proposed Rule be amended to significantly reduce the 

allowable period, from the current 10 years to a maximum of 3 years, to require opportunity for public review, and to 

require a demonstration of need for continued operation of a variance prior to any renewal by the state. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.l 

Comment ID 0198-A1.001.010 

Author Name: Card Bethany 

Organization: Massachusetts Department of Environmental Protection 

MassDEP likewise questions EPA's proposed ten year limitation on variance duration. WQS variances in 

Massachusetts have exceeded that timeline; states as well as EPA need flexibility to approve variances, where 

appropriate, for longer than ten years. This new time limitation would prove extremely problematic for some variances in 

the Commonwealth. 

In the case of the Charles and Mystic River watersheds, for example, variances have been in place and have been 

reevaluated and renewed since 1998/1999. EPA "approved" the current Charles and Mystic River CSO variances in 

2006 through the year 2020, which correlates with MWRA's obligations under a federal court order. Under its variance 

conditions, MWRA is required to conduct an extensive CSO/water quality monitoring program, to be completed in 2020, 

which is intended to allow both MassDEP and EPA to make final determinations integrating the CSO work into the MA 

WQS. This will remain a considerable challenge, even within the current regulatory framework. It is totally unclear; 

however, how the proposed new regulation would impact existing MassDEP and Region 1 EPA practices to implement 

CSO abatement measures 

08/04/2015 05:01 PM EDT 2-1154
 
Chapter 2 - Comment Documents Variances 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0199-A1.001.016 

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 

If EPA proceeds with this proposed change, we suggest that EPA reduce the expiration date allowance from ten years 

to three years to reduce the likelihood of abuse. A maximum variance length of three years would accord with the 

states' triennial review obligations and would make it less likely that states would completely ignore changed 

circumstances for variances during the triennial review process. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section B 

Comment ID 0201-A1.001.027 

Author Name: Godfrey Mike 

Organization: Alabama Power 

In its Draft Rule, EPA aptly notes that "[States] retain discretion as to whether, when, and where to adopt variances." 78 

Fed. Reg. at 54,532. As currently drafted, proposed 40 C.F.R. § 131.14 does not appear to infringe upon States' 

considerable discretion. This is imperative, as States are clearly the most knowledgeable authority regarding how 

variances should be implemented within their jurisdiction, taking into consideration the totality of the regional and local 

circumstances. This flexibility is needed so that States may work with dischargers to investigate unavoidable pollution 

issues and determine the best methods to achieve compliance. In light of this recognized discretion, Alabama Power 

struggles to understand the basis for EPA's proposed ten-year expiration period for all variances. Instead, the duration 

of a variance should be determined by the State that granted it, as it is in the best position to understand and appreciate 

the appropriate amount of time the variance will be needed by the discharger or group of dischargers under the 

circumstances.[FN4] 

[FN4] If EPA retains this arbitrary expiration period, the agency must also include an administrative continuance 

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Chapter 2 - Comment Documents Variances 

mechanism in § 131.14 to clearly provide that variances will continue past any expiration period as long as the 

regulated entity submits a timely renewal application. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0202-A2.001.016 

Author Name: Frederick Kevin 

Organization: Wyoming Department of Environmental Quality/Water Quality Division 

Variances are an important tool for states that wish to retain a currently unattainable designated use or make progress 

toward attaining a designated use, rather than remove a designated use or adopt a designated use with lower water 

quality criteria. Due to the variety of situations that states may wish to apply variances, the WDEQ/WQD recommends 

that the EPA simply specify that the variance include the term of the variance, rather than specify the expiration date as 

"no later than 10 years after state adoption," as is currently proposed in 131.14(b)(1)(iii). The WDEQ/WQD is concerned 

the if the EPA retains the 10 year expiration date, stakeholders may choose to simply remove a designated use, rather 

than apply for a variance because the stakeholder or the state may not wish to re-do the analysis required to obtain the 

variance in such a short amount of time. Moreover, the circumstances to which states may wish to apply variances 

often require considerably longer than 10 years for technology to become available, upgrades to be implemented, 

restoration to be achieved, etc. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0203-A1.001.024 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

Under the proposal, variances would last no longer than 10 years and then would have to be renewed. Proposed § 

131.14(b)(1)(iii). The 10-year limit appears to be arbitrary and does not take into account any of the site-specific 

reasons for which variances might be granted. We recommend the 10-year limit be eliminated At a minimum, if a 

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variance expires while the regulatory agency is still in the process of reviewing whether it should be renewed, the 

variance should be automatically continued until the agency has time to make a decision, just as expired permits are 

administratively continued pursuant to the Administrative Procedure Act, 5 U.S.C. § 558(c) and 40 C.F.R. § 122.6. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0203-A1.001.026 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

And, again, the 10-year limit may not conform to schedules for technology or other requirements that may lead to 

compliance with water quality standards but on a longer schedule. States should be able to recognize such longer 

schedules. 

Response 

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

8.g.iii 

8.g.iii: Section A 

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Chapter 2 - Comment Documents Variances 

Comment ID 0206-A1.001.020 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

B. Variances - Expiration Date - Proposed Section 131.14(b)(1)(iii) 

The Proposed Rule would provide that "States must include an expiration date for all WQS variances, consistent with 

paragraph (b)(2) of this section. WQS variances must be as short as possible but expire no later than 10 years after 

state adoption." 78 Federal Register 54,545. This provision is unreasonable. States should review any variance at least 

every three years as mandated by Section 303(c) for all water quality standards. This is also consistent with the 

longstanding EPA requirement that "the variance is granted for a specific period of time and must be rejustified upon 

expiration but at least every 3 years (Note: the 3-year limit is derived from the triennial review requirements of section 

303(c) of the Act.)"[FN12] 

[FN12] http://water.epa.gov/scitech/swguidance/standards/handbook/chapter05.cfm#section3 

Response 

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

8.g.iii 

8.g.iii: Section M 

Comment ID 0211-A1.001.009 

Author Name: Lane David 

Organization: Minnesota Environmental Science and Economic Review Board 

MESERB does not favor the limitation of variances to ten years in duration, [FN10] but it is appreciated that EPA 

endorses states' renewal of variances where appropriate. 

[FN10] Id. at 54534. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.i 

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Comment ID 0213-A1.001.006 

Author Name: Coyne Kevin 

Organization: West Virginia Department of Environmental Protection 

Variances - DEP fully supports the use of variances for the temporary modification of water quality standards, and West 

Virginia has utilized this tool in the past. The current proposal sets new limits on the length a variance may be effective 

and raises questions on the process/requirements when renewing an already effective variance. DEP shares ACWA 

concerns about the new time limits and the questions concerning efforts when renewing an effective variance, and we 

request EPA fully review these comments and suggested language revisions as they pertain to variances. The current 

language in the proposal will ultimately limit the use and effectiveness of variances, and ultimately may lead to much 

more time and resource intensive efforts to meet water quality standards. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section C 

Comment ID 0215-A1.001.020 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

B. Variances – Expiration Date – Proposed Section 131.14(b)(1)(iii) 

The Proposed Rule would provide that "States must include an expiration date for all WQS variances, consistent with 

paragraph (b)(2) of this section. WQS variances must be as short as possible but expire no later than 10 years after 

state adoption." 78 Federal Register 54,545. This provision is unreasonable. States should review any variance at least 

every three years as mandated by Section 303(c) for all water quality standards. This is also consistent with the 

longstanding EPA requirement that "the variance is granted for a specific period of time and must be rejustified upon 

expiration but at least every 3 years (Note: the 3-year limit is derived from the triennial review requirements of section 

303(c) of the Act.)" [FN12] 

[FN12] http://water.epa.gov/scitech/swguidance/standards/handbook/chapter05.cfm#section3 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.g.iii 

8.g.iii: Section M 

Comment ID 0217-A2.001.019 

Author Name: Hale Michelle 

Organization: Alaska Department of Environmental Conservation 

a. Considerations on variance term of 10 years. 

Tying the variance to a permit limit presents complications, such as a permit being administratively extended beyond 

the term of the variance as per 40 CFR § 122.6. Since NPDES permits typically have a term of 5 years, ADEC requests 

that EPA increase the variance terms to run 12-14 years (in lieu of the proposed 10 year term) to allow for possible 

administrative issues that might result in administrative extensions. Another option would be to acknowledge that 

variances based on establishment of effluent limitations in a permit are limited by the term of the permit, instead of the 

variance. This could allow the variance to continue if a permit was administratively extended. 

Issues have emerged that will necessarily require longer term variances - longer than the 10 years in the proposed rule. 

Examples include restoration variances, Total Maximum Daily Loads for persistent pollutants like PCBs or mercury, or 

strict nutrient criteria that drive extremely low permit limits for small and low income communities. While ADEC requests 

EPA adopt a longer term, if EPA retains the proposed 10 year time limit, a streamlined renewal process will need to be 

included in the final rule. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.f.ii 

Comment ID 0217-A2.001.021 

Author Name: Hale Michelle 

Organization: Alaska Department of Environmental Conservation 

b. Clarification on review of variances 

There is confusion as to the purpose of two separate reviews of variances - one at the triennial review pursuant to 40 

CFR § 131.20, and a second at the end of the variance term. Examination of the variance at the end of its term is 

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reasonable and necessary to determine whether the variance needs to be renewed or terminated. The concept of a 

triennial review of variances stems from EPA's interpretation that a variance constitutes a change in use (§ 131.20) and 

attainable designated uses must be reviewed during state triennial reviews. However, EPA should clarify that a variance 

review at each triennial review is necessary only if there is significant new information available that would justify the 

modification or revocation of the variance. Preferably, such a variance review process would be better accomplished 

during the permit renewal process when it can be done in context of all of the permit requirements and associated 

monitoring. 

Response 

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

8.g.iii 

8.g.iii: Section E 

8.g.iii: Section G 

Comment ID 0218-A1.001.004 

Author Name: Elardo Pam 

Organization: King County Department of Natural Resources and Parks 

• Allow for state and regional discretion on time-frames for variances rather than retaining an across the board threeyear review interval or a 10-year maximum limit 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0218-A1.001.012 

Author Name: Elardo Pam 

Organization: King County Department of Natural Resources and Parks 

Variances 

King County requests the EPA to remove the proposed time limits for variances and allow for state and regional 

discretion on variance time frames. Such discretion is particularly important for legacy contaminants such as PCBs or 

chlorinated pesticides for which available treatment technologies are limited or unavailable. 

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Ecology is currently establishing state human health criteria and water quality standards. One of the proposed 

implementation strategies for some pollutants is expected to be long-term variances. Washington State has yet to utilize 

variances, and this may be due to the EPA's substantial burden of proof for variance applicants. Requiring states or 

applicants to meet all the substantive, procedural requirements and thresholds in CWA § 131.10(g) to temporarily 

modify designated uses is already a challenging bar to meet. This bar seems particularly high for a variance that could 

be modified after only three years (after a triennial review). Current EPA guidance requires efforts equivalent to those 

necessary to permanently change a water body's uses through a Use Attainability Analysis (UAA) to be approved for a 

variance. While we understand the importance of avoiding the modification, even temporarily, of water quality standards 

or uses unless absolutely necessary, addressing ubiquitous contaminations [either natural-occurring earth metals 

(arsenic, mercury, etc.) or ubiquitous anthropogenic contamination (PCBs)] will require multi-participant, long-term 

efforts, which variances were designed to facilitate. 

Placing additional administrative burdens and maintaining short time limits on variance applicants would require the 

state or facility owner to re-document the applicability of the six factors in § 131.10(g) every three years if the EPA 

subjects each variance to triennial review. Such efforts place a substantial uncertainty on future NPDES permit terms 

and the possibilities for permit renewal. In general, King County's wastewater and stormwater infrastructure needs are 

planned and budgeted more than 10 years ahead. For instance, the King County CSO Long-Term Control Plan will be 

implemented under milestones set in a Federal Consent Decree over the next 19 years. Properly financing and 

executing design and construction of these CSO projects requires more certainty than the proposed variance timetables 

and other proposed clarifications provide. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0221-A1.001.006 

Author Name: Coyne Kevin 

Organization: West Virginia Department of Environmental Protection 

Variances - DEP fully supports the use of variances for the temporary modification of water quality standards, and West 

Virginia has utilized this tool in the past. The current proposal sets new limits on the length a variance may be effective 

and raises questions on the process/requirements when renewing an already effective variance. DEP shares ACWA 

concerns about the new time limits and the questions concerning efforts when renewing an effective variance, and we 

request EPA fully review these comments and suggested language revisions as they pertain to variances. The current 

language in the proposal will ultimately limit the use and effectiveness of variances, and ultimately may lead to much 

more time and resource intensive efforts to meet water quality standards. 

08/04/2015 05:01 PM EDT 2-1162
 
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Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section C 

Comment ID 0227-A2.001.005 

Author Name: Williams Christopher 

Organization: AMERICAN RIVERS 

Expiration date 

We agree that every WQS variance must have an explicit expiration date, and we are concerned that the proposed 

rule's maximum time frame for a variance is too long. The proposed rule requires that "WQS variances must be as short 

as possible but expire no later than 10 years after state adoption." We agree with EPA that variances must be as short 

as possible, and we are concerned that "maximum" will be interpreted as "default" in practice. The proposed rule's 

maximum 10-year time frame may discourage prompt action to address non-attainment. We recommend that variances 

be reviewed either on the same schedule for which EPA requires States to review their water quality standards, or once 

every three years. EPA should modify this section to require that WQS variances expire after no later than 3 years. We 

also recommend that EPA modify this section to clarify that EPA reserves the right to modify the expiration date of the 

variance in the event that the state fails to demonstrate that the full timeframe requested is necessary. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section N 

8.g.iii: Section T 

Comment ID 0228-A2.001.005 

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Variances 

While Amigos Bravos agrees that EPA must place limits on how variances are used by states, the current proposal 

08/04/2015 05:01 PM EDT 2-1163
 
Chapter 2 - Comment Documents Variances 

does not go far enough. For example 10 years is too long a time period for a variance. The justification for a variance 

should have to be reviewed during each triennial review period with a maximum total length of 10 years. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section M 

Comment ID 0229-A2.001.006 

Author Name: Tillison Naomi 

Organization: Bad River Band of Lake Superior Tribe of Chippewa Indians 

First, the Tribe recommends that the EPA consider adopting the maximum timeframe for variances stated in the Great 

Lakes Water Quality Initiative (40 CFR 132 Appendix F). A maximum expiration date for a variance of five (5) years, 

instead of the proposed ten (10) years, would more effectively drive water quality progress by ensuring a more frequent 

review of the justification of a variance and the current conditions of the affected water body. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.k 

Comment ID 0230-A1.001.025 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

Expiration Date - Proposed 131.14 (b)(1)(iii) 

This section allows a variance to last up to 10 years. This is not acceptable. Given that states are supposed to review 

their standards on threeyear schedule, ten years is simply too long to go without reconsidering whether the 

circumstances that made the variance reasonable have changed. We propose that five years (or maybe six years for 

any states that actually review their standards on a triennial basis) is a more appropriate time limit on variances. 

08/04/2015 05:01 PM EDT 2-1164
 
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Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0231-A2.001.019 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

• While 10 years may seem reasonable because it covers two permit cycles, in reality a 12-14 year timeframe would be 

more appropriate and achievable to cover all permitting-related administrative actions. Alternatively, a variance could 

remain in effect until a State makes a determination that the WQS is attainable, through a UAA. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section L 

Comment ID 0231-A2.001.020 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

• Variances should not be required to be reviewed on a triennial basis, as it is too burdensome on the States and 

Tribes. 

Response 

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

8.g.iii 

8.g.iii: Section G 

Comment ID 0234-A2.001.028 

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Chapter 2 - Comment Documents Variances 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

Third, EPA proposes to limit variances to 10 years. We recommend that EPA be silent on time duration. States need 

maximum flexibility. For example, a State could leave a variance in effect until it makes a determination that the WQS is 

attainable, through a UAA. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0236-A2.001.020 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

WDNR supports the following clarifications: 

•Variances are given for a limited time period, after which point one of the following must occur: the discharger must 

meet the WQS upon the expiration of this time period; the state or tribe must adopt a new variance or re-justify the 

current variance subject to EPA review and approval; or a modified use for the waterbody must be adopted through the 

UAA process. 

Response 

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

8.g.iii 

8.g.iii: Section T 

Comment ID 0236-A2.001.022 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

Recommended change: 

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Chapter 2 - Comment Documents Variances 

•WDNR requests clarification regarding the time period of the variance. Currently, in Wisconsin, variances are granted 

for the duration of a 5-year permit term, however circumstances sometimes delay the reissuance of a permit and its 

corresponding variance. It is Wisconsin's understanding that variances can only be granted for the length of one permit 

term. 

• Four elements need to be addressed in this definition to make it clear:
 

1) How many years is a single variance designed to cover?
 

2) What happens if there is a reissuance delay-can the variance be extended to cover that reissuance delay?
 

3) Can the variance be reissued, and if so, is there a maximum number of reissuances?
 

4) Is there an absolute timeline for the endpoint of a variance before a facility must achieve their WQBEL and will no
 

longer be considered for a reissued variance? i.e. a cap on the total number of variance years?
 

• For example:
 

o Does this statement mean that a single 10-year variance will be granted to cover two permit terms at once? If so, can 

the 10-year variance be approved for a second 10 years? 

o Is it the EPA's intent to continue to grant variances that extend for the length of the 5-year permit term, including any 

reissuance delay beyond 5 years, but no more than 10 years rather than assigning a specific end date? (i.e. if the 

permit is not reissued until year 8, the single variance would cover it. However, what happens if the permit is not 

reissued until year 11?) 

o Or does this statement mean that variances will be given an absolute expiration date of 10 years from the first 

variance issuance (i.e. no more than one reissuance of a 5 year variance before the permittee must meet the WQBEL)? 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section C 

8.g.iii: Section F 

8.g.iii: Section O 

Comment ID 0236-A2.001.025 

Author Name: Weigel Brian 

08/04/2015 05:01 PM EDT 2-1167
 
Chapter 2 - Comment Documents Variances 

Organization: Wisconsin Department of Natural Resources 

Recommended changes: 

• The Water Quality Standards Regulatory Clarifications section F.2.a.i. states that variances are defined as water 

quality standards, and as such, must be reviewed on a triennial basis. WDNR believes the intent of this statement is 

that the variance review process is to be reviewed on a triennial basis, rather than a triennial review of individual 

variances. Clarification is necessary. This could be rewritten to say "As WQS, variances are subject to §131.20(a) and 

thus the variance review process for each state or tribe must be reviewed on a triennial basis. Individual variances shall 

be reviewed and approved by the EPA at the start of each permit term." 

Response 

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

8.g.iii 

8.g.iii: Section G 

Comment ID 0236-A2.001.031 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

Recommended changes: 

•Section F.2.b.i.3. states that "variances must be as short as possible but expire no later than 10 years after the date 

the state or tribe adopts the variance consistent with §131.14(b)(2)." Currently, Wisconsin applies variances for the 

length of a permit term (a standard of five years, however, circumstances sometimes do not allow a permit to be 

reissued in a timely manner). 

o Does the statement that "variance must be as short as possible..." mean that EPA could require variances to last less 

than one permit term? If so, this could cause issues with the permit backlog by creating the need to modify and reissue 

permits mid-term. 

Response 

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

8.g.iii 

8.g.iii: Section F 

Comment ID 0237-A2.001.009 

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Chapter 2 - Comment Documents Variances 

Author Name: Tucker James 

Organization: Idaho Power Company 

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

However, imposing a 10-year expiration date on variances may or may not be appropriate under certain circumstances. 

In order to approve a variance, the state or tribe must justify its decision. An adequate justification would address any 

timeframe required for a specific variance, and the state or tribe's discretion shouldn't be limited to an arbitrary predetermined timeframe. EPA's proposed addition of section 131.14 should be amended at subsection 131.14(b)(1)(iii) to 

state: 

(iii) Date the WQS variance will expire: States must include an expiration date for all WQS variances, consistent with 

paragraph (b)(2) of this section. WQS variances must be [begin strikeout] as short as possible but expire no later than 

10 years after state adoption [end strikeout] [begin new text] established for reasonable time periods at the discretion of 

the state or tribe. [end new text] 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0240-A2.001.024 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

Another requirement is that the expiration date be given, stating "...variances must be as short as possible but expire 

no later than 10 years after state adoption." 

Response 

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

8.g.iii 

8.g.iii: Section T 

Comment ID 0240-A2.001.026 

08/04/2015 05:01 PM EDT 2-1169
 
Chapter 2 - Comment Documents Variances 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

d. We disagree on the inclusion of a time limit for the life of a variance. There are too many variables that can affect the 

ability of a discharger or water body to meet more restrictive criteria. The proposed requirement is yet another instance 

where EPA is inappropriately reducing the discretion of the states. 

e. Due to the (likely frequent) need for an extended timeframe, variances should not be required to be reviewed on a 

triennial basis as is suggested in the preamble. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section G 

Comment ID 0244-A2.001.012 

Author Name: Loomis Marion 

Organization: Wyoming Mining Association 

2. Variance review should not be required on a triennial basis. Review of variances is a burdensome process for the 

State and regulated entities. 

Response 

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

8.g.iii 

8.g.iii: Section G 

Comment ID 0244-A2.001.014 

Author Name: Loomis Marion 

Organization: Wyoming Mining Association 

4. Variances should not be limited to the ten year timeframe for two reasons. First, this may not give the State time to 

make a use attainability determination. Second, while the ten years are based on two permit terms, in reality a 12-14 

08/04/2015 05:01 PM EDT 2-1170
 
Chapter 2 - Comment Documents Variances 

year timeframe would be more appropriate to include all permitting related administrative actions. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0245-A2.001.005 

Author Name: Krapas Douglas 

Organization: Inland Empire Paper Company 

Inland is also concerned about the ten year limitation proposed for variances. The proposed rule incorporates the 

criteria for use attainability analysis under § 131.10(g) to establish a variance. This is a rigorous standard and one that 

we have experience with on the Spokane River in the dissolved oxygen TMDL. It takes years to develop the information 

and analysis required under the rule. We are concerned that where we are dealing with persistent chemicals such as 

PCBs that there will be a needless effort to re-engage in the variance application process every five years. This is not 

warranted in the context of variances that must reasonably be in place for twenty to forty years. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section P 

Comment ID 0248-A2.001.017 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

In this context, we have several concerns about the proposed new § 131.14. First, the ten year time limit for a variance 

seems unnecessarily limiting. There are numerous instances where a state may consider a variance greater than ten 

years to be needed. Certain variances may be subject to the schedule of a TMDL, or otherwise may be beyond the 

control of the permittee. At a minimum, a variance triggered by natural conditions should not be subject to this stringent 

10 year time limit. 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0250-A2.001.009 

Author Name: Batterton Carol 

Organization: Water Environment Association of Texas, Texas Association of Clean Water Agencies, and Texas Water 

Conservation Association 

The approach for temporary variances in the proposed regulations could be construed as requiring an amendment to 

the Water Quality Standards as well as a fixed date for the variance to expire which will simply cause TCEQ to 

restructure its entire variance process. 

Response 

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

8.g.iii 

8.g.iii: Section T 

Comment ID 0251-A2.001.013 

Author Name: Wigal Jennifer 

Organization: Oregon Department of Environmental Quality 

Specific Comments 

Variances and triennial reviews 

EPA should clarify how a variance review comports with the triennial review requirement. 

The preamble states that "As WQS, variances are subject to §131.20(a) and thus must be reviewed on a triennial 

basis." On the ACWA Oct. 31, 2013 call when questioned about this requirement, EPA responded that states will 

continue to have broad discretion in how that review is structured. Generally, a state would confirm whether or not the 

conditions causing the need for a variance continue to exist. If not, and the discharge permit had a re-opener clause, 

the variance could be discontinued. If conditions leading to a variance continue to exist, the variance would continue to 

be effective. Given that the proposed rule states that variances could be in effect for up to 10 years, it could be an 

administrative burden to undergo a formal review of each effective variance every three years, particularly if the 

variance or permit duration is shorter than 10 years. Oregon requests EPA to clarify its expectations regarding the 

extent of a variance review based on the triennial review requirement. For example, a variance should be reviewed 

08/04/2015 05:01 PM EDT 2-1172
 
Chapter 2 - Comment Documents Variances 

once every three years if the state has reason to expect that conditions causing the need for the variance have 

changed. Otherwise, the variance must be reviewed at the time of permit renewal. 

Response 

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

8.g.iii 

8.g.iii: Section G 

Comment ID 0251-A2.001.017 

Author Name: Wigal Jennifer 

Organization: Oregon Department of Environmental Quality 

Variance expiration dates 

EPA should clarify that interim permit limits and other variance conditions continue to apply until such time as a 

variance or permit is renewed. 

40 CFR 131.14(b)(1)(iii) states that all variances must have an expiration date. In circumstances where a permit is 

administratively extended due to ongoing litigation, natural disasters, or other reasons; EPA should be clear that the 

interim permit limits or other variance conditions continue to apply until such time a variance or permit is renewed. EPA 

should include this clarification in the proposed rule. Although Oregon does not yet have any permits with variances, 

any permit with a variance will be considered a priority for renewal by the state. However, future potential litigation or 

other circumstances could delay some permits with variances. An immediate expiration of a variance in such permits 

would be an administrative burden and would not allow water quality improvements through required pollutant reduction 

plans to continue. 

Response 

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

8.g.iii 

8.g.iii: Section F 

Comment ID 0252-A2.001.019 

Author Name: Fry Eric 

Organization: Peabody Energy 

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Chapter 2 - Comment Documents Variances 

• While 10 years may seem reasonable because it covers two permit cycles, in reality a 12-14 year timeframe would be 

more appropriate and achievable to cover all permitting-related administrative actions. Alternatively, a variance could 

remain in effect until a State makes a determination that the WQS is attainable, through a UAA. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section L 

Comment ID 0252-A2.001.020 

Author Name: Fry Eric 

Organization: Peabody Energy 

• Variances should not be required to be reviewed on a triennial basis, as it is too burdensome on the States and 

Tribes. 

Response 

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

8.g.iii 

8.g.iii: Section G 

Comment ID 0254-A2.001.003 

Author Name: Hoffman Ray 

Organization: Seattle Public Utilities 

In that context, SPU urges EPA not to place a nationwide ten-year limit on water quality variances. SPU suggests the 

following deletion from 40 C.F.R. § 131.14(b)(1)(iii) of the proposed rule:

 "... WQS variances must be as short as possible but expire no later than 10 years after state adoption." 

Variances may be the best currently-available option where the attainability of designated uses and criteria is in 

question. Ten years is insufficient to assess and address complex urban circumstances. The administrative burden, 

uncertainty and cost presented by re-evaluating a variance on a mandatory ten-year cycle would unnecessarily remove 

resources from implementing measures to make feasible water quality progress. 

08/04/2015 05:01 PM EDT 2-1174
 
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Response 

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

8.g.iii 

8.g.iii: Section A 

12.a 

Comment ID 0254-A2.001.004 

Author Name: Hoffman Ray 

Organization: Seattle Public Utilities 

Rather, the federal rule should remain silent on this point, allowing regulators to assign duration to variances based 

upon appropriate information not available at the time of this EPA rulemaking. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0257-A1.001.020 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

EPA's proposed requirement that variances expire no later than 10 years after state adoption is arbitrary and unjustified. 

The conditions that exist at the time a variance is granted should determine the amount of time necessary to attain 

water quality standards. Accordingly, the Chamber opposes the establishment of an arbitrary 10-year maximum period 

on a variance. Such a timeframe is also potentially anti-productive since it would seem to force a state to conduct a 

UAA for a permanent removal of a use if it cannot be achieved in less than 10 years. It is also unclear under the 

proposal whether renewal of a variance that lasted 10 years would be allowable. 

Response 

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

8.g.iii 

8.g.iii: Section A 

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Chapter 2 - Comment Documents Variances 

8.g.iii: Section C 

Comment ID 0261-A2.001.013 

Author Name: Bartlett Drew 

Organization: Florida Department of Environmental Protection 

We also agree with ACWA on specific variance provisions, including: 

1) We agree with ACWA that, due to their inherent short-term nature, most variances do not need to be reviewed during 

each Triennial Review. However, if a State issues a long-term variance (10 years), then review of any "new information" 

pertinent to the variance is reasonable as part of the Triennial Review. 

2) We also agree with ACWA's recommended revisions to § 131.14(b)(1)(iii) regarding use of nomenclature that 

addresses the "length of the term" of a variance rather than "expiration" of variances. 

Response 

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

8.g.iii 

8.g.iii: Section G 

8.g.iii: Section I 

Comment ID 0261-A2.001.015 

Author Name: Bartlett Drew 

Organization: Florida Department of Environmental Protection 

Additionally, restoration variances should not be limited to 10-year terms. Countless real world examples consistently 

demonstrate that restoration activities often take more than 10-years. By including such arbitrary timeframes, EPA is 

acting to discourage voluntary, but long-term, restoration activities. 

Response 

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

8.g.iii 

8.g.iii: Section A 

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Comment ID 0262-A2.001.016 

Author Name: Rawlings Laurent 

Organization: Home Builders Association of Kentucky 

HBAK finds EPA's proposed requirement that variances expire no later than ten years after state adoption capricious 

and unwarranted. When a variance is granted, it is under existing conditions at which the time determined necessary to 

attain water quality standards should be determined - which is why HBAK opposes the illogical establishment of a ten 

year maximum period on a variance. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0263-A2.001.006 

Author Name: Gretchen Watkins Larry Wawronowicz 

Organization: Lac du Flambeau Band of Lake Superior Tribe of Chippewa Indians 

The Tribe recommends that the EPA consider adopted the maximum timeframe for variances stated in the Great Lakes 

Water Quality Initiative (40 CFR 132 Appendix F). A maximum expiration date for a variance of five (5) years, instead of 

the proposed ten (10) years, would more effectively drive water quality progress by ensuring a more frequent review of 

the justification of a variance and the current conditions of the affected water body. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.k 

Comment ID 0264-A2.001.017 

Author Name: Chard-McClary Shellie 

Organization: Association of Clean Water Administrators 

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To provide more detail on specific provisions of the proposed regulation regarding variances, ACWA offers the following 

comments: 

1) Clarity needed on the level of review EPA expects in a state's triennial review and at the term of the variance 

There is confusion as to the purpose of two separate reviews of variances - one at the triennial review pursuant to 40 

CFR § 131.20, and a second at the end of the variance term. Examination of the variance at the end of its term is 

reasonable and necessary to determine whether the variance needs to be renewed or terminated. However, an in depth 

review at each triennial review is unnecessary. The concept of a triennial review of variances stems from EPA's 

interpretation that a variance constitutes a change in use (§ 131.20) and unmet uses must be reviewed at each triennial 

review. ACWA recommends three approaches, in order of preference: 

a. Specifically state in the final rule that variances do not need to be evaluated at each triennial review. Variance 

reviews would only take place at the term of the variance; 

b. Specifically state in the final rule that variances would require review at the term of the variance minus a specific 

period of time to give the states and EPA time to determine if a renewal was necessary and to implement the renewal 

prior to the variance reaching its term; or 

c. A highly streamlined review simply addressing the requirement in § 131.20 of whether "any new information has 

become available" that would alter the variance if EPA believes § 131.20 establishes the requirement to review a 

variance at each triennial review. This is especially true for variances known to be long term in nature such as 

restoration variances or those based on TMDL schedules that can be decades long. 

Response 

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

8.g.iii 

8.g.iii: Section E 

8.g.iii: Section G 

Comment ID 0264-A2.001.019 

Author Name: Chard-McClary Shellie 

Organization: Association of Clean Water Administrators 

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

3) Modification of language on variance ‘expiration' 

In the context of the variance provision, the term "expiration" should be modified to express the concept that the 

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Chapter 2 - Comment Documents Variances 

variance has a specific term. This proposed language better comports with the concept of variance renewal. Expiration 

implies the variance ends and there is no option for renewal. No renewal implies the entire variance process must be 

restarted at the end of the variance term which could result in an unnecessarily time consuming process under some 

states' standards adoption processes. The phrase length of the term of a variance does not preclude renewal while also 

acknowledging a variance is limited in time. 

Suggested revision: 

§ 131.14(b)(1)(iii) "[begin strikeout]Date [end strikeout] [begin new text] Length of the term [end new text] of the WQS 

variance [begin strikeout] will expire: [end strikeout] States must include [begin strikeout] an expiration date [end 

strikeout] [begin new text] the length of the term [end new text] for all WQS variances, consistent with paragraph (b)(2) 

of this section. WQS variances must be as short as possible but [begin strikeout] expire no later [end strikeout] [begin 

new text] have a term of no longer [end new text] than [begin new text] "X" [end new text] [begin strikeout]10 [end 

strikeout] years after state adoption." 

4) Considerations on variance term of 10 years 

We strongly support the language in § 131.14(b)(1)(ii)(B) that allows for an NPDES permit effluent limitation to be used 

to express the highest attainable condition for a permittee. However, tying the variance to a permit limit may present 

complications, such as a permit being administratively extended beyond the term of the variance as per 40 CFR § 

122.6. Since NPDES permits typically have a term of 5 years, it might be wise to allow variance terms to run 12-14 

years (in lieu of the proposed 10 year term) to allow for possible administrative glitches that would result in an 

administrative extension. Another option would be to acknowledge that variances based on establishment of effluent 

limitations in a permit are limited by the term of the permit, instead of the variance. This could allow the variance to 

continue if a permit was administratively extended. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section C 

8.g.iii: Section I 

Comment ID 0268-A2.001.027 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

In contrast to EPA's repeated comments that variances should allow states to make progress towards attainment, EPA 

assumes that water quality goals of the variance, that is the replacement uses and criteria, will remain constant during 

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the up-to-10-year period of a variance. EPA suggests this in stating that the designated use and criterion adopted in a 

variance must "reflect[] the highest attainable condition during the specified time period." While the highest attainable 

condition could refer to the highest of a continuum of conditions, that would not provide protection to permittees at, for 

example, the outset of the 10-year period. For example, if over a 10-year period it was expected that a pollutant load 

were to go from a current level of 100 to a level of 75, EPA's rule suggests the variance would identify the level of 75 as 

the applicable condition during the 10-year period. This would not provide protection to the permittee discharging into 

the receiving water during the time period when the condition was in excess of 75. By the same token, setting the 

condition at the highest pollutant load would not account for the expectation that water quality is supposed to improve 

over the 10 year period of the variance. EPA's assuming the level of water quality will remain constant over a 10-year 

period makes obvious that EPA is not really expecting variances to result in water quality improvements. In any case, 

EPA needs to figure out what will work for permittees and what will actually reflect the agency's belief that variances will 

be used to bring waters into or closer to attainment because having tripled or doubled the length of time now 

contemplated for variances over past practices, it has created a significant problem with respect to providing certainty 

for polluters and making good on its promises to the public. This problem would not be as acute if variances were 

issued for a shorter period of time than 10 years. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section B 

8.g.iii: Section Q 

8.g.iii: Section T 

8.g.ii 

Comment ID 0268-A2.001.038 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

Components of a Variance: Expiration Date 

We support the rules' including a requirement that variances have an expiration date. We do not support 10 year 

variances. Ten years is not short enough to link the need for nonpoint source control to the needs of point sources 

which EPA evidently believes is key to making progress towards attainment, and we agree. Past experience 

demonstrates that states will do little if anything to control nonpoint sources except in the most dire of circumstances. 

Therefore, making circumstances appear to be more dire should be a goal of EPA's rules. Linking the fortunes of future 

variance and permit renewals to the effectiveness of nonpoint source controls will do more for overall water quality than 

disconnecting them. In addition, it is difficult to see how variances will be issued for less than 10 years. If a state could 

show that a variance that was "as short as possible" was less than 10 years, there would be little reason to use a 

variance in lieu of a compliance schedule because there would be a high level of certainty involved in the assessment. 

08/04/2015 05:01 PM EDT 2-1180
 
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In fact, the most likely attribute of a variance is its unknowable quality, the very quality that leads it to be a good 

alternative to a compliance schedule. In being unknowable, it is unlikely to have enough characteristics to allow a state 

or EPA to determine that some specific date is long enough to bring a water into attainment. In other words, talking 

about variances being as short as possible is most likely a waste of space in EPA's rules. If EPA intends to leave it in 

the rule we suggest the preamble should say something of EPA's expectations with regard to a state's showing to EPA 

that a proposed variances is as "short as possible." 

EPA says that having an expiration date in a variance will ensure public re-evaluation to determine whether conditions 

have changed to make a use attainable, or not ever attainable, or "whether feasible progress is being made toward the 

designated use and criterion and that additional time is needed to make further progress[.]" Id. We do not disagree that 

an expiration date is required if EPA is to make an arguable point that variances are temporary. Without an expiration 

date, EPA could not make that argument and variances would be clearly and unambiguously contrary to the statute. 

However, EPA's argument that having an expiration date will result in these three outcomes is without support. Take, for 

example, a pollutant where the primary contributor is nonpoint sources, such as temperature. The fact that a 

temperature variance lasts for ten years will not, on its own, result in nonpoint source controls such that at the end of 

ten years the state will be able to discern whether further nonpoint source controls will be implemented and to what 

result for designated uses and water quality. Nor will a ten year review demonstrate how much more "additional time" 

will be needed. If there is no reason for landowners to plant trees to restore denuded riparian vegetation, there will be 

no progress. The lack of progress will tell us what exactly? It will not tell us whether if trees were planted how fast they 

would grow. It would not tell us how cool the water could be if the trees were planted and did grow. It would not tell us 

how much more time we should wait for landowners to get around to planting trees. It would only tell us that ten years 

have passed during which time landowners have continued the status quo of not planting trees. 

If, on the other hand, the variance lasted for five years, the discussion would likely be different, focused on what would 

happen at the next permit issuance. It would not be about whether if trees were planted something beneficial might 

occur. Instead, it would be a discussion of what responsibility the point source was going to have to incur if nonpoint 

sources continued to do nothing and whether it would be able to get its variance renewed when its permit expired. The 

discussion could then turn to the urgency of planting trees (or removing cows from streams, moving manure piles from 

riparian areas, reducing toxic-carrying sediment from entering streams, etc.). Lulling all pollution sources and the 

political bodies (permitting agencies and state legislatures) into a 10-year belief that water quality standards have been 

suspended is contrary to the goals of the Clean Water Act and common sense. That is unless, of course, variances are 

EPA's way of introducing the American public to broad use of designated use downgrades. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.g.iii: Section B 

8.g.iii: Section F 

8.g.iii: Section R 

8.g.v 

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Chapter 2 - Comment Documents Variances 

Comment ID 0268-A2.001.056 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

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

(ii) WQS that apply during a variance for CWA section 402 permitting purposes [begin strikeout text] and in issuing 

certifications under section 401 of the Act [end strikeout text] : A WQS variance must specify: 

(A) The highest attainable interim use and interim numeric criterion, [begin new text] and [end new text] [begin strikeout] 

or [end strikeout] 

(B) An interim numeric effluent condition that reflects the highest attainable condition for a specific permittee(s) during 

the term of the variance. Neither (A) nor (B) of this paragraph shall result in any lowering of the currently attained water 

quality [begin new text] , including increased pollutant loading allowed by changes in mixing zones, [end new text] 

unless a time-limited lowering of water quality is necessary during the term of a variance for restoration activities, 

consistent with paragraph (b)(2)(ii) of this section. 

Response 

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

8.g.iii 

8.g.iii: Section S 

Comment ID 0268-A2.001.057 

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) Date the WQS variance will expire: States must include an expiration date for all WQS variances, consistent with 

paragraph (b)(2) of this section. WQS variances must [begin strikeout] be as short as possible but [end strikeout] expire 

no later than [begin strikeout] 10 [end strikeout] [begin new text] five [end new text] years after state adoption. 

Response 

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

8.g.iii 

08/04/2015 05:01 PM EDT 2-1182
 
Chapter 2 - Comment Documents Variances 

8.g.iii: Section A 

Comment ID 0269-A2.001.011 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

It is requested that EPA revise 131.14(b)(1)(iii) or clarify that state adoption of a variance can be based on the date a 

permit is issued. In other words, the variance "clock" does not start for a particular permittee until its permit is issued to 

contain variance-based requirements. This will allow for a variance to be in effect for up to two permit terms and will 

avoid misinterpretation and the administrative difficulty that would result if variance-based permit requirements would 

routinely expire in the middle of permit terms (if the new regulation makes it difficult to align the 10 year variance period 

and the permit periods). 

Response 

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

8.g.iii 

8.g.iii: Section F 

Comment ID 0270-A1.001.007 

Author Name: Todd Andrew 

Organization: Colorado Water Quality Control Commission 

V. Variances 

There are provisions in Colorado's water quality standards authorizing the adoption of a discharger specific variance. 

The Commission believes that a variance can be an appropriate tool in certain circumstances where it is infeasible for a 

discharger to meet the water quality based effluent limits in its permit. The Commission agrees that variances must be 

temporary and set to expire as quickly as possible; however the Commission disagrees with EPA's proposal to 

implement a maximum expiration date of 10 years after adoption. When determining the appropriate duration for a 

variance, the Commission believes it is appropriate to consider the site-specific basis for the variance and the potential 

for achieving a more protective effluent concentration or load. The Commission also believes it is appropriate to 

consider the timing of the discharge permit renewal and basin review cycle. Therefore, it may be that because of the 

specific circumstances of when a discharger can achieve a more protective effluent concentration or load, and in order 

to align the expiration date with the basin review cycle and the discharger's permit renewal cycle, a variance should 

most appropriately be set to expire in 12 years. A maximum expiration date of 10 years would arbitrarily constrain the 

term of the variance and require consideration of the variance outside of the basin review cycle without providing any 

additional environmental protection for that water body. 

08/04/2015 05:01 PM EDT 2-1183
 
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Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0271-A1.001.014 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

14. Addition of paragraph (b)(1)(iii) to § 131.14. The Pueblo of Sandia has reviewed the proposed addition and agrees 

with the proposed language. 

Response 

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

8.g.iii 

8.g.iii: Section H 

Comment ID 0272-A2.001.021 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

Variances must also be reviewed every three years in the required triennial review and the state must report to EPA on 

whether a variance is being retained and must justify its retention. Id. Variances are required to be as short as possible 

and during the course of the variance, the discharger must regularly demonstrate that reasonable progress is being 

made to attain water quality standards. Id. 

Response 

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

8.g.iii 

8.g.iii: Section T 

Comment ID 0272-A2.001.023 

08/04/2015 05:01 PM EDT 2-1184
 
Chapter 2 - Comment Documents Variances 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

EPA must be clear that variances must have a specific expiration date and that they are water quality standards and as 

such are subject to review every three years. Variances should in most instances not extend beyond three years-at 

most, they might extend for the length of a single permit term with a review at the three-year mark. [FN8] Renewal of a 

variance must be fully-justified at each three-year mark as again, they are highly contrary to Clean Water Act 

requirements and purposes and should be carefully monitored and generally disfavored. 

[FN8] Here too, the facts demonstrate that this very same thing can be readily accomplished with compliance plans in 

permits. Variances don't really make sense and are just a duplicative off-ramp from compliance. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0274-A2.001.010 

Author Name: Yeaton Violet 

Organization: Region 10 Regional Tribal Operations Committee 

The Proposed Rules should be clarified to ensure that variances have a specific expiration date and are subject to 

review every three years. In general, variances should in most instances not extend beyond three years-at most, they 

might extend for the length of a single permit term with a review at the three-year mark. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0278-A2.001.021 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

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Chapter 2 - Comment Documents Variances 

In particular, we support the concept of 10-year variances with the opportunity for renewal. 

Response 

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

8.g.iii 

8.g.iii: Section H 

Comment ID 0278-A2.001.025 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

Also, inasmuch as NACWA supports the concept of 10-year variances, we question why and how these longer 

authorizations would be reviewed on a triennial basis, as EPA proposes in the preamble at 78 Fed. Reg. 54532 col. 2. 

NACWA thinks EPA should clarify that if such a review is required, it would be limited to confirming the existence of the 

variance authorization, together with an acknowledgement of any interim requirements or milestones associated with 

that authorization. 

Response 

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

8.g.iii 

8.g.iii: Section G 

Comment ID 0279-A2.001.006 

Author Name: Coyne Kevin 

Organization: West Virginia Department of Environmental Protection 

Variances - DEP fully supports the use of variances for the temporary modification of water quality standards, and West 

Virginia has utilized this tool in the past. The current proposal sets new limits on the length a variance may be effective 

and raises questions on the process/requirements when renewing an already effective variance. DEP shares ACWA 

concerns about the new time limits and the questions concerning efforts when renewing an effective variance, and we 

request EPA fully review these comments and suggested language revisions as they pertain to variances. The current 

language in the proposal will ultimately limit the use and effectiveness of variances, and ultimately may lead to much 

more time and resource intensive efforts to meet water quality standards. 

08/04/2015 05:01 PM EDT 2-1186
 
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Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0280-A2.001.015 

Author Name: Aspatore Amanda 

Organization: National Mining Association 

Likewise, the proposed limit on variances of 10 years is arbitrary and curtails a state's ability to make a determination 

that a water quality standard has become attainable. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0282-A2.001.002 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

Of particular concern to Ecology is the newly proposed language on variances that places a ten year limit on the length 

of time a variance can be issued. Washington is currently in the process of a water quality standards rule revision to 

adopt human health criteria. We are also considering revisions to the implementation tools section to help with the 

achievement of these new human health criteria as well as other standards that require long term fixes, such as 

growing trees in riparian areas to achieve temperature criteria. The new human health criteria will present significant 

challenges to meeting numeric limits for widespread and pervasive chemicals such as mercury, arsenic and PCBs. 

Washington is exploring different ways to use variances to achieve long term compliance and progress. Variances are 

the key tool (possibly the only tool) under the Clean Water Act, short of changing designated uses and criteria, which 

can provide some regulatory certainty to facilities that will be faced with implementing pollutant reduction strategies for 

these challenging pollutants. 

Our goal is to establish rules for implementation tools that will require specific actions intended to achieve toxics 

reduction. Because of this, there will be real, substantial, long term costs to implement pollution reduction control 

strategies and new technology. Those costs will require facilities to look at long term funding, and we do not believe that 

ten years is long enough on which to base these significant business and funding decisions. 

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Chapter 2 - Comment Documents Variances 

An additional concern we have with the proposed ten-year limitation on variances is based on the significant procedures 

and requirements that Washington needs to follow and fulfill with any rule revision. These requirements are costly to the 

state and hence the public. The cost of conducting a water quality standards rule revision, with subsequent submittal to 

EPA for Clean Water Act approval, is a resource intensive process. This focus of resources will limit our ability to 

address other water quality standards work since we expect the variance work associated with new human health 

criteria to be an additional workload we have not yet realized. As part of our rule effort we will be required to look at the 

costs of this work, and we believe those costs will be significant if it is limited to a ten-year schedule. 

We believe the best approach for setting a time limit on a variance would be to do it at the time that the variance itself is 

being developed and approved. At the same time, we recognize that all variances will need measurable milestones for 

implementation actions, so we are not suggesting an open-ended process with no deliverables. We agree with the need 

to clarify process deliverables around variances and suggest that EPA focus instead on that, and refrain from setting a 

time-limited duration to be used across the nation. Other states might not be facing the same issues as Washington, but 

could have other standards issues that would also necessitate flexibility in timeframes. 

Given the pressure our state will be facing to comply with new and current water quality standards, we encourage EPA 

to seriously consider some of the regulatory situations that are playing out in the Pacific Northwest. Without the 

regulatory certainty that longer term variances can provide, Ecology may be forced prematurely to look at changes in 

designated uses as a means to provide that certainty. We would prefer to develop long-term and adaptive pollution 

control programs that could be facilitated by longer term variances. 

Comments on the draft federal water quality standards regulations are attached. 

Response 

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

8.g.iii 

8.g.iii: Section A 

12.a 

Comment ID 0282-A2.001.010 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

• Under section 131.14(b)(1)(iii), Submission requirements, new language requires that variances expire after 10 years. 

Ecology strongly opposes EPA placing an arbitrary time limit on a variance. Time limits should be a part of each 

variance that is adopted by the state and subsequently approved by EPA. Decisions on time limits should be specific to 

the variance being issued. To do otherwise would create potentially unnecessary administrative burdens on both the 

state and EPA, and not provide the needed certainty to the regulated discharger for pollutants that are legacy and/or 

pervasive. 

08/04/2015 05:01 PM EDT 2-1188
 
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• The ten-year limit for variances in the draft regulation with the allowance for renewal of the variance after ten years 

does not provide certainty for long-term financial and pollutant reduction planning, and furthermore removes any 

flexibility states currently have on specifying extended periods for variances beyond ten years. Ecology recommends 

that EPA not specify the duration of the variance and instead include language that requires interim reviews of 

variances at specific periods (e.g., every five years) during the life of a variance. 

Response 

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

8.g.iii 

8.g.iii: Section A 

Comment ID 0283-A1.001.022 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

5. Duration, Need, and Other Sources 

We support the requirement that variances be transparent in the adoption process, include an expiration date, and be 

as short as necessary. However, EPA should explicitly allow for variances to be easily extended if the justification for 

the need for the variance still exists. 

Response 

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

8.g.iii 

8.g.iii: Section C 

8.g.iii: Section H 

Comment ID 0284-A2.001.002 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

Of particular concern to Ecology is the newly proposed language on variances that places a ten year limit on the length 

of time a variance can be issued. Washington is currently in the process of a water quality standards rule revision to 

08/04/2015 05:01 PM EDT 2-1189
 
Chapter 2 - Comment Documents Variances 

adopt human health criteria. We are also considering revisions to the implementation tools section to help with the 

achievement of these new human health criteria as well as other standards that require long term fixes, such as 

growing trees in riparian areas to achieve temperature criteria. The new human health criteria will present significant 

challenges to meeting numeric limits for widespread and pervasive chemicals such as mercury, arsenic and PCBs. 

Washington is exploring different ways to use variances to achieve long term compliance and progress. Variances are 

the key tool (possibly the only tool) under the Clean Water Act, short of changing designated uses and criteria, which 

can provide some regulatory certainty to facilities that will be faced with implementing pollutant reduction strategies for 

these challenging pollutants. 

Our goal is to establish rules for implementation tools that will require specific actions intended to achieve toxics 

reduction. Because of this, there will be real, substantial, long term costs to implement pollution reduction control 

strategies and new technology. Those costs will require facilities to look at long term funding, and we do not believe that 

ten years is long enough on which to base these significant business and funding decisions. 

An additional concern we have with the proposed ten-year limitation on variances is based on the significant procedures 

and requirements that Washington needs to follow and fulfill with any rule revision. These requirements are costly to the 

state and hence the public. The cost of conducting a water quality standards rule revision, with subsequent submittal to 

EPA for Clean Water Act approval, is a resource intensive process. This focus of resources will limit our ability to 

address other water quality standards work since we expect the variance work associated with new human health 

criteria to be an additional workload we have not yet realized. As part of our rule effort we will be required to look at the 

costs of this work, and we believe those costs will be significant if it is limited to a ten-year schedule. 

We believe the best approach for setting a time limit on a variance would be to do it at the time that the variance itself is 

being developed and approved. At the same time, we recognize that all variances will need measurable milestones for 

implementation actions, so we are not suggesting an open-ended process with no deliverables. We agree with the need 

to clarify process deliverables around variances and suggest that EPA focus instead on that, and refrain from setting a 

time-limited duration to be used across the nation. Other states might not be facing the same issues as Washington, but 

could have other standards issues that would also necessitate flexibility in timeframes. 

Given the pressure our state will be facing to comply with new and current water quality standards, we encourage EPA 

to seriously consider some of the regulatory situations that are playing out in the Pacific Northwest. Without the 

regulatory certainty that longer term variances can provide, Ecology may be forced prematurely to look at changes in 

designated uses as a means to provide that certainty. We would prefer to develop long-term and adaptive pollution 

control programs that could be facilitated by longer term variances. 

Comments on the draft federal water quality standards regulations are attached. 

Response 

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

8.g.iii: Section A 

12.a 

08/04/2015 05:01 PM EDT 2-1190
 

8.g.iii 
Chapter 2 - Comment Documents Variances 

Comment ID 0284-A2.001.010 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

• Under section 131.14(b)(1)(iii), Submission requirements, new language requires that variances expire after 10 years. 

Ecology strongly opposes EPA placing an arbitrary time limit on a variance. Time limits should be a part of each 

variance that is adopted by the state and subsequently approved by EPA. Decisions on time limits should be specific to 

the variance being issued. To do otherwise would create potentially unnecessary administrative burdens on both the 

state and EPA, and not provide the needed certainty to the regulated discharger for pollutants that are legacy and/or 

pervasive. 

• The ten-year limit for variances in the draft regulation with the allowance for renewal of the variance after ten years 

does not provide certainty for long-term financial and pollutant reduction planning, and furthermore removes any 

flexibility states currently have on specifying extended periods for variances beyond ten years. Ecology recommends 

that EPA not specify the duration of the variance and instead include language that requires interim reviews of 

variances at specific periods (e.g., every five years) during the life of a variance. 

Response 

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

8.g.iii 

8.g.iii: Section A 

8.G.IV - VAR REQ - SUPP DOC 

Comment ID 0128-A1.001.011 

Author Name: Boon Richard 

Organization: California Stormwater Quality Association 

Given the short-term nature of variances, many of the requirements are onerous and likely to result in challenges to 

obtaining a variance. If USEPA wants to support the variance process, the regulations should state that the burden of 

proof to gain approval for a short term variance should be less than for approval of a permanent use modification. This 

distinction is not currently in the regulations. One clarification that could be made is that the State need only provide a 

valid explanation why the designated use and criteria are currently unattainable and provide a time frame for attaining 

the use and criteria. This explanation may include the section 131.10(g) factors, or other factors, so long as there are 

adequate findings and evidence to support the need for such a variance. For instance, California has in the past 

adopted a Drought Policy, which provided interim water quality standards applicable in drought periods for salinity 

08/04/2015 05:01 PM EDT 2-1191
 
Chapter 2 - Comment Documents Variances 

related standards. 

Response 

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

8.g.iv 

8.g.iv: Section A 

Comment ID 0131-A1.001.021 

Author Name: Rager David 

Organization: Sanitation District Number 1 of Northern Kentucky 

Comment 11 - Consideration of stream restoration activities [§ 131.14(b)(2)(ii)] is appropriate and advisable. SD1 

supports EPA's decision to acknowledge that restoration activities that are necessary to improve long-term water quality 

may result in temporary violations of the water quality standards. However, it is not clear that this provision is necessary 

as there are other permitting mechanisms available under Sections 401 and 404 of the Clean Water Act. If this section 

is to remain, given our objections to § 131.14, we request that this section be moved to § 131.10(k). 

Response 

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

8.g.iv 

8.g.iv: Section B 

Comment ID 0133-A2.001.014 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

5. WQS Variances 

a. Presented as an avenue of relief in the proposed rule clarification, LDEQ agrees that variances have been 

underutilized in the past and notes that historically it has been extremely difficult to get EPA's approval on a variance 

request. LDEQ has applied for variances in the past, but none have been approved 

b. LDEQ has concerns regarding the proposed language 

i. In order to demonstrate the need for a WQS variance, the proposed rule (Section 131.14(b)(2)(i)) requires that one of 

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the factors listed in 131.10(g) applies or that actions necessary to facilitate restoration preclude the attainment of a use. 

1. The reference to 131.10(g) provides the automatic assumption that a use attainability analysis is required and the 

designated use must be removed or lowered to the highest attainable use. This assumption severely limits the 

conditions under which states may use a variance (an already under-utilized tool). 

2. This reference should be eliminated or the proposed rule should be modified to include other factors that may not 

require a UAA. Such factors may include a natural disaster that causes significant damage to a water body or climate 

conditions that cause the impairment of a water body for a period of several years 

3. The reference may also contradict EPA's position in the preamble which states the concept of HAU should not be 

confused with "sitespecific criteria. " A site-specific criterion is designed to protect the current unchanged designated 

use, but the criterion value may be different from the statewide or otherwise applicable criterion because it is tailored to 

account for site-specific conditions that may cause a given chemical concentration to have a different effect on one site 

than on another. Based on this statement, it is unclear if a UAA is required for the development of site-specific criteria. 

A variance may be needed in order for a state agency to develop appropriate site-specific criteria without removing or 

lowering the designated use. Section 131.10(j) requires a state to conduct a use attainability analysis described in 

131.3(g) whenever ...the State wishes to remove a designated use that is specified in section 101(a)(2) of the Act or to 

adopt subcategories of uses specified in section 101(a)(2) of the Act which require less stringent criteria. If a UAA is not 

required, then the reference to 131.10(g) (describing the conditions under which a use attainability analysis may be 

conducted to remove a lower a use) in the proposed rule would preclude the availability of a variance while the state 

agency develops site-specific criteria 

Response 

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

8.g.iv 

8.g.iv: Section A 

8.g.iv: Section C 

Comment ID 0133-A2.001.016 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

d. LDEQ requests that specific procedures, effort, and time be indicated for achieving variances 

i. Several factors are listed for qualification for a variance, specifically citing six factors in Section 131.10(g). 

1. Since approval has never occurred for variance requests, the Use Attainability Analyses (UAA) procedure should 

give an approximate indication of the effort involved and time required should one be approved. The UAA process can 

extend out beyond a year or more with considerable investment of work for EPA and the State. This severely reduces 

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Chapter 2 - Comment Documents Variances 

the effectiveness of offering variances as an avenue of relief if one can be obtained at all. 

2. Recommend very specific procedural requirements beyond what is listed in 131.10(g) for the approval of a variance 

along with several examples in the pre-amble. Further, if all requirements are followed and sufficiently documented, 

then approval for that variance should be given. 

Response 

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

8.g.iv 

8.g.iv: Section D 

Comment ID 0151-A1.001.014 

Author Name: Tate Michael 

Organization: Kansas Department of Health and Environment 

Variance Factors 

The proposed rule indicates citing one of the six factors in 40 CFR 131.10(g) as justification for the variance. In fact, 

most of those factors are not applicable to the purpose of a variance. Variances are going to be granted because either 

the technology doesn't exist to get down to the stringent criteria needed to fully attain designated uses (i.e., 

131.10(g)(3)) or to treat down to those lower levels will impart a substantial and widespread social and economic impact 

(131.10(g)(6)). The other four factors (not including the suggested 7th factor of temporary geomorphologic restoration) 

are superfluous. We suggest referencing only one of the two applicable factors as justification. 

Response 

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

8.g.iv 

8.g.iv: Section E 

Comment ID 0156-A1.001.016 

Author Name: Jackie Kepke Adam Link 

Organization: California Association of Sanitation Agencies and Tri-TAC 

Finally, CASA and Tri-TAC suggest modifying the proposed language of 40 CFR 131.14(b)(ii)(B) to allow for a timelimited lowering of water quality for water conservation purposes. Specifically, section 131.14(b)(ii)(B) states that a 

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Chapter 2 - Comment Documents Variances 

WQS variance must specify "[a]n interim numeric effluent condition that reflects the highest attainable condition for a 

specific permittee(s) during the term of the variance. Neither (A) nor (B) of this paragraph shall result in any lowering of 

the currently attained water quality unless a time-limited lowering of water quality is necessary during the term of a 

variance for restoration activities, consistent with paragraph (b)(2)(ii) of this section." (Emphasis added.) However, 

water conservation activities also will necessitate a time-limited lowering of water quality and the language of this 

provision should be redrafted to encompass this circumstance as well. For example, many California cities have been 

observing an increase in pollutant concentrations entering wastewater treatment plants as flow is reduced (due in part 

to water conservation activities) but mass remains the same. 

Response 

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

8.g.iv 

8.g.iv: Section C 

Comment ID 0158-A1.001.032 

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.] 

[begin strikeout] (2) The State must submit a demonstration justifying the need for a WQS variance. For a WQS 

variance to a use specified in section 101(a)(2) of the Act or a sub-category of such a use, the State must submit a 

demonstration that attaining the designated use and criterion is not feasible during the term of the WQS variance 

because: [end strikeout] 

[begin strikeout] (i) One of the factors listed in § 131.10(g) applies, or [end strikeout] 

[begin strikeout] (ii) Actions necessary to facilitate restoration through dam removal or other significant wetland or 

stream reconfiguration activities preclude attainment of the designated use and criterion while the actions are being 

implemented. [end strikeout] 

Response 

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

8.g.iv 

8.g.iv: Section G 

8.b 

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Chapter 2 - Comment Documents Variances 

Comment ID 0166-A2.001.032 

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.] 

[begin strikeout] (2) The State must submit a demonstration justifying the need for a WQS variance. For a WQS 

variance to a use specified in section 101(a)(2) of the Act or a sub-category of such a use, the State must submit a 

demonstration that attaining the designated use and criterion is not feasible during the term of the WQS variance 

because: [end strikeout] 

[begin strikeout] (i) One of the factors listed in § 131.10(g) applies, or [end strikeout] 

[begin strikeout] (ii) Actions necessary to facilitate restoration through dam removal or other significant wetland or 

stream reconfiguration activities preclude attainment of the designated use and criterion while the actions are being 

implemented. [end strikeout] 

Response 

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

8.g.iv 

8.g.iv: Section G 

Comment ID 0175-A1.001.026 

Author Name: Canton Steven 

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

Section 131.14(b)(2) requires that the need for a WQS variance must be attributable to one of the factors used to 

modify designated uses in 131.10(g) or that significant waterbody reconfiguration activities preclude attainment of the 

criteria. 

f. The factors affecting designated uses in 131.10(g) are very specific and very stringent. Because variances do not 

change the designated use, they should not have to meet the same rigid criteria as a use reclassification. Other factors 

that would warrant a variance should be included, such as technical feasibility, competing stakeholder variances, and 

other watershed activities. The justification guidelines should contain allowances for more flexibility. 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.g.iv 

8.g.iv: Section C 

Comment ID 0186-A1.001.029 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

EPA should not require states to use its March 1995 Interim Economic Guidance for Water Quality Standards as a 

basis for determining whether an individual WQS variance has widespread "social and economic impact." 

As discussed earlier in these comments, EPA's March 1995 economic guidance makes it essentially impossible for a 

major industrial corporation to show widespread economic impacts because it requires comparison of corporate-level 

revenues and profits to the costs for a single facility to achieve local WQS. Essentially, the EPA 1995 economic 

guidance will typically show that almost any level of treatment/control is economically achievable for a large corporation, 

even if it were to make the single facility grossly unprofitable. Companies do not make major expansions of existing 

plants or construct new plants if there is no positive return on investment and use of the 1995 guidance will essentially 

make individual WQS variances impossible at facilities owned by major corporations. 

The proposed regulatory language at 40 CFR 131.14 does not reference the March 1995 economic guidance, which is 

good. However, EPA should make it clear in the preamble to the final rule that this guidance can be considered but is 

not required in the WQS variance justification for individual facility variances and should reference the factors in CWA 

304(b) that are used in determining the economic feasibility of BPT and BAT as the economic bases for justifying a 

variance. 

Response 

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

8.g.iv 

8.g.iv: Section F 

Comment ID 0189-A1.001.025 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

Variances - Demonstrating need 

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EPA proposes in its new section 40 C.F.R. 131.14 to remove the requirement for a discharger to demonstrate that 

compliance with water quality standards is not feasible pursuant to 40 C.F.R. 131.10(g) if the water quality standard has 

been promulgated in a section of state rules that does not explicitly pertain to CWA 101(a)(2) uses. This element of 

EPA's proposal is a very significant weakening of CWA requirements that will have serious impacts on fish, aquatic 

plants and wildlife. Although many states have standards in place to limit chlorides, sulfates, hardness, specific 

conductance or total dissolved salts under their rules pertaining to agriculture or industrial use classes, virtually no 

states have adopted such standards in sections of the rules that explicitly pertain to section 101(a)(2) uses. In many 

states, WQS for non-101(a)(2) designated uses may represent the only viable limitation on discharge that impacts fish, 

aquatic plants and wildlife. For example, in Minnesota, protection of wild rice is currently relegated to an agriculture use 

designation. 

EPA research in the coal mining region of Appalachia has demonstrated that concentrations of specific conductance 

and other dissolved constituents can cause severe aquatic life impairments. Recent data and water body assessments 

in the Great Lakes region also suggest that high concentrations of these ‘conventional' pollutants may contribute to 

aquatic life impairments. If EPA were to remove the 40 C.F.R. 131.10(g) feasibility factors for non-101(a)(2) designated 

uses, that would allow a state to grant a variance even for parameters known to cause toxicity and even if compliance 

with standards (i.e., wastewater treatment) is feasible. 

The Bands are concerned about the effect of removing the section 40 C.F.R. 131.10(g) factors for standards that 

protect drinking water and wild rice, which are not a 101(a)(2) uses. States would have the discretion to allow 

discharges exceeding standards which were established to protect public health and tribal subsistence, without even 

requiring proof that compliance would not be feasible. EPA should only allow states to consider variances for non101(a)(2) uses without meeting the 40 C.F.R. 131.10(g) and 40 C.F.R. 131.10(j) requirements if the discharger has 

clearly demonstrated that the release would have no effect on fish, aquatic life, wildlife or human health. 

Response 

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

8.g.iv 

8.g.iv: Section H 

Comment ID 0195-A1.001.026 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

Variances - Demonstrating need 

EPA proposes in its new section 40 C.F.R. 131.14 to remove the requirement for a discharger to demonstrate that 

compliance with water quality standards is not feasible pursuant to 40 C.F.R. 131.10(g) if the water quality standard has 

been promulgated in a section of state rules that does not explicitly pertain to CWA 101(a)(2) uses. This element of 

EPA's proposal is a very significant weakening of CWA requirements that will have serious impacts on fish, aquatic 

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Chapter 2 - Comment Documents Variances 

plants and wildlife. Although many states have standards in place to limit chlorides, sulfates, hardness, specific 

conductance or total dissolved salts under their rules pertaining to agriculture or industrial use classes, virtually no 

states have adopted such standards in sections of the rules that explicitly pertain to section 101(a) (2) uses. In many 

states, WQS for non-101(a) (2) designated uses may represent the only viable limitation on discharge that impacts fish, 

aquatic plants and wildlife. 

EPA research in the coal mining region of Appalachia has demonstrated that concentrations of specific conductance 

and other dissolved constituents can cause severe aquatic life impairments. Recent data and water body assessments 

in the Great Lakes region also suggest that high concentrations of these ‘conventional' pollutants may contribute to 

aquatic life impairments. If EPA were to remove the 40 C.F.R. 131.10(g) feasibility factors for non-101(a)(2) designated 

uses, that would allow a state to grant a variance even for parameters known to cause toxicity and even if compliance 

with standards (i.e., wastewater treatment) is feasible. 

The NTWC is also concerned about the effect of removing the section 40 C.F.R. 131.10(g) factors for standards that 

protect drinking water, which is also not a 101(a) (2) use. States would have the discretion to allow discharges 

exceeding standards which were established to protect public health, without even requiring proof that compliance 

would not be feasible. EPA should only allow states to consider variances for non-101(a)(2) uses without meeting the 

40 C.F.R. 131.10(g) and 40 C.F.R. 131.10(j) requirements if the discharger has clearly demonstrated that the release 

would have no effect on fish, aquatic life, wildlife or human health. 

Response 

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

8.g.iv 

8.g.iv: Section H 

Comment ID 0206-A1.001.021 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

C. Variances - Demonstrating Need - Proposed Section 131.12(b)(2) 

Under the Proposed Rule, only Section 101(a)(2) uses would require a demonstration that attaining the designated use 

and criterion is not feasible during the term of the water quality standard variance because one of the factors listed in 

Section 131.10(g) applies. EPA's longstanding interpretation is that variances should only be allowed if they are 

"adopted consistent with the substantive and procedural requirements for permanently downgrading a designated use," 

i.e. based on the factors in 40 C.F.R. §131.10(g). 78 Federal Register 54,531. This interpretation is repeated in the 

Water Quality Standards Handbook which states that variances will only be allowed if "the State demonstrates that 

meeting the standard is unattainable based on one or more of the grounds outlined in 40 CFR 131.10(g) for removing a 

designated use."[FN13] No standard for demonstrating need is established for issuing variances for uses not listed in 

CWA Section 101(a)(2) in the Proposed Rule. This is unreasonable and contrary to CWA Section 303(c) as it would 

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appear to authorize states to grant variance under any circumstances it so desires. EPA should modify the Proposed 

Rule to require a state to demonstrate that meeting the standard is unattainable based on one or more of the grounds 

outlined in 40 C.F.R. 13 1.10(g) for removing any designated use. The term "feasible" should not be included in the 

Proposed Rule. Establishing a feasibility requirement is contrary to CWA Section 301(b)(1)(C), which requires that 

water quality standards be met without regard to cost or feasibility when applying water quality based effluent limitations 

("WQBELs"). See, e.g., Upper Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d 9, 33 (1st Cir. 2012). 

[FN13] http://water.epa.gov/scitech/swguidance/standards/handbook/chapter05.cfm#section3 

Response 

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

8.g.iv 

8.g.iv: Section H 

8.g.iv: Section I 

Comment ID 0207-A1.001.044 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

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

(2) The State must submit a demonstration justifying the need for a WQS Variance. For a WQS variance to a use 

specified in section 101(a)(2) of the Act or a sub-category of such a use, [begin new text] the State must meet the 

requirements of §131.10(d) and (e), and must demonstrate that [end new text] 

(i) One of the factors listed in § 131.10(g) applies, or 

(ii) Actions necessary to facilitate restoration through dam removal or other significant wetland or stream reconfiguration 

activities preclude attainment of the designated use and criterion while the actions are being implemented. 

Response 

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

8.g.iv 

8.g.iv: Section J 

Comment ID 0212-A1.001.006 

08/04/2015 05:01 PM EDT 2-1200
 
Chapter 2 - Comment Documents Variances 

Author Name: Norton Kelly 

Organization: Arizona Mining Association 

• Factors that justify a variance: EPA is proposing that the same six factors listed in 40 C.F.R. § 131.10(g) that justify a 

(permanent) designated use change would also justify a (temporary) variance. Given that variances are intended to be 

temporary rather than permanent, the AMA believes that the qualifying criteria ought to be somewhat broader. For 

example, the existing, EPA-approved Arizona variance provision allows issuance of a variance where it is not 

technically feasible to achieve compliance within the potential variance time frame. See A.A.C. R18-11-122(A)(1). A 

similar concept should be included in the federal variance language 

• Proposed new "restoration" factor: EPA does identify one additional factor that would justify a variance (but not a 

designated use change): "restoration through dam removal or other significant wetland or stream reconfiguration 

activities." See proposed 40 C.F.R. § 131.14(b)(2)(ii). The AMA supports this additional factor, but believes it should be 

expanded to include other water quality improvement efforts that do not entail physical modification of a water (e.g., 

addressing a seep from historic mining activities). 

Response 

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

8.g.iv 

8.g.iv: Section B 

8.g.iv: Section C 

Comment ID 0215-A1.001.021 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

C. Variances – Demonstrating Need – Proposed Section 131.12(b)(2) 

Under the Proposed Rule, only Section 101(a)(2) uses would require a demonstration that attaining the designated use 

and criterion is not feasible during the term of the water quality standard variance because one of the factors listed in 

Section 131.10(g) applies. EPA's longstanding interpretation is that variances should only be allowed if they are 

"adopted consistent with the substantive and procedural requirements for permanently downgrading a designated use," 

i.e. based on the factors in 40 CFR §131.10(g). 78 Federal Register 54,531. This interpretation is repeated in the Water 

Quality Standards Handbook which states that variances will only be allowed if "the State demonstrates that meeting 

the standard is unattainable based on one or more of the grounds outlined in 40 CFR 131.10(g) for removing a 

designated use." [FN13] No standard for demonstrating need is established for issuing variances for uses not listed in 

CWA Section 101(a)(2) in the Proposed Rule. This is unreasonable and contrary to CWA Section 303(c) as it would 

appear to authorize states to grant variance under any circumstances it so desires. EPA should modify the Proposed 

Rule to require a state to demonstrate that meeting the standard is unattainable based on one or more of the grounds 

08/04/2015 05:01 PM EDT 2-1201
 
Chapter 2 - Comment Documents Variances 

outlined in 40 CFR 13 1.10(g) for removing any designated use. The term "feasible" should not be included in the 

Proposed Rule. Establishing a feasibility requirement is contrary to CWA Section 301(b)(1)(C), which requires that 

water quality standards be met without regard to cost or feasibility when applying water quality based effluent limitations 

("WQBELs"). See, e.g., Upper Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d 9, 33 (1st Cir. 2012). 

[FN13] http://water.epa.gov/scitech/swguidance/standards/handbook/chapter05.cfm#section3 

Response 

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

8.g.iv 

8.g.iv: Section H 

8.g.iv: Section I 

Comment ID 0227-A2.001.004 

Author Name: Williams Christopher 

Organization: AMERICAN RIVERS 

Encouraging river restoration 

We support the river, floodplain, and wetland restoration activities anticipated in the proposed rule's demonstration 

requirement at §131.14(b)(2)(ii), as well as the proposed rule's allowance at §131.14(b)(1)(ii)(B) for time-limited 

lowering of attained water quality for restoration activities. Allowing variances for "actions necessary to facilitate 

restoration through dam removal or other significant wetland or stream reconfiguration activities" that may "preclude 

attainment of the designated use and criterion while the actions are being implemented" is entirely consistent with the 

Act's restoration goal. Many restoration activities involve a short-term impairment that is far outweighed by the long-term 

improvements to water quality that will result from the activity. This clarification from EPA is a significant improvement 

over current practice, and will allow good restoration projects to move forward expeditiously. 

Response 

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

8.g.iv 

8.g.iv: Section K 

Comment ID 0229-A2.001.007 

Author Name: Tillison Naomi 

08/04/2015 05:01 PM EDT 2-1202
 
Chapter 2 - Comment Documents Variances 

Organization: Bad River Band of Lake Superior Tribe of Chippewa Indians 

Second, the proposed rule fails to protect the uses that are not specified in section 101(a)(2) of the CWA. The same 

demonstration requirements should apply for a variance to a use not specified in section 101(a)(2) of the CWA as would 

apply for a variance to a section 101(a)(2) use. For example, again, a wild rice designated use is one use that is not 

listed in section 101(a)(2); if a WQS variance to a wild rice water is proposed, a demonstration should be required 

showing that attaining the designated use and criterion is not feasible during the term of the variance because one of 

the factors listed in 40 CFR 131.10(g) applies or because restoration efforts are being implemented that will improve the 

integrity of the water body. 

Response 

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

8.g.iv 

8.g.iv: Section H 

Comment ID 0230-A1.001.026 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

Demonstrating need - Proposed 131.12(b)(2)
 

To grant a variance, this section requires a state to show that (i) one of the 40 C.F.R. 131.10(g) factors will exist during
 

the term of the variance or (ii) that a variance must be allowed during the period of stream or wetland restoration work.
 

Apart from our concerns regarding use of variances overall, we support this proposed provision. 

Response 

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

8.g.iv 

8.g.iv: Section K 

Comment ID 0231-A2.001.021 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

• Regarding: 

08/04/2015 05:01 PM EDT 2-1203
 
Chapter 2 - Comment Documents Variances 

o s. 131.14(b)(2), the factors affecting designated uses in 131.10(g) are specific and stringent. Because a variance is 

time-limited it should not have to meet the same criteria as a use reclassification. Other factors that might allow a 

variance should be considered, and the justification guidelines should contain more allowance for flexibility. 

Response 

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

8.g.iv 

8.g.iv: Section A 

8.g.iv: Section C 

08/04/2015 05:01 PM EDT 2-1204
 
Chapter 2 - Comment Documents Variances 

Comment ID 0236-A2.001.018 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

WDNR supports the following clarifications: 

•WDNR strongly supports the statement from EPA that variances may be granted based on any of the factors for 

removing/modifying a designated use as listed in §131.10(g). To date, in Wisconsin's experience, it has been rare for 

any but the socio-economic factor to be approved by EPA as a justification for a variance. 

Response 

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

8.g.iv 

8.g.iv: Section K 

Comment ID 0236-A2.001.021 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

Recommended change: 

• WDNR would like to stress that variances may be granted based on any of the factors for removing a designated use 

as listed in §131.10(g), and that §131.10(g) (6) is not necessarily the most significant factor to consider. 

Response 

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

8.g.iv 

8.g.iv: Section K 

Comment ID 0236-A2.001.032 

Author Name: Weigel Brian 

08/04/2015 05:01 PM EDT 2-1205
 
Chapter 2 - Comment Documents Variances 

Organization: Wisconsin Department of Natural Resources 

Recommended changes: 

•Current §131.10(g) factors do not accommodate situations where a variance may be necessary to facilitate short-term 

efforts to restore the natural physical features (i.e., natural geomorphology) of a system. The EPA is proposing to add a 

new factor to address the situation when a time-limited exceedence of a criterion might be expected while efforts for 

dam removal or significant wetlands or stream reconfiguration/ restoration efforts are underway to facilitate restoration 

of the natural physical features of a waterbody. Where is this referenced in the updated rule? §131.10(g) appears to still 

only contain six factors. 

• Section F.2.b.ii. lists things to be considered when making a demonstration for "Human Caused Conditions..." under 

§131.10(g)(3). WDNR would like to recommend putting those 5 considerations in the rule itself rather than just in the 

pre-amble. 

Response 

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

8.g.iv 

8.g.iv: Section J 

Comment ID 0240-A2.001.027 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

Section 131.14(b)(2) requires that the need for a WQS variance must be attributable to one of the factors used to 

modify designated uses in 131.10(g) or that significant waterbody reconfiguration activities preclude attainment of the 

criteria. 

f. The factors affecting designated uses in 131.10(g) are very specific and very stringent. Because variances do not 

change the designated use, they should not have to meet the same rigid criteria as a use reclassification. Other factors 

that would warrant a variance should be included, such as technical feasibility, competing stakeholder variances, and 

other watershed activities. The justification guidelines should contain allowances for more flexibility. 

Response 

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

8.g.iv 

8.g.iv: Section A 

8.g.iv: Section C 

08/04/2015 05:01 PM EDT 2-1206
 
Chapter 2 - Comment Documents Variances 

Comment ID 0252-A2.001.022 

Author Name: Fry Eric 

Organization: Peabody Energy 

o s. 131.14(b)(2), the factors affecting designated uses in 131.10(g) are specific and stringent. Because a variance is 

time-limited it should not have to meet the same criteria as a use reclassification. Other factors that might allow a 

variance should be considered, and the justification guidelines should contain more allowance for flexibility. 

Response 

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

8.g.iv 

8.g.iv: Section A 

8.g.iv: Section C 

Comment ID 0261-A2.001.014 

Author Name: Bartlett Drew 

Organization: Florida Department of Environmental Protection 

The Department also encourages EPA to broaden the restoration variance provision in § 131.14(b)(2)(ii). As currently 

written, the provision is limited to "restoration through dam removal or other significant wetland or stream 

reconfiguration activities ..." Restoration activities that promote the goals of the Clean Water Act are much broader than 

this short list. EPA should actively encourage restoration activities, even where those activities only improve water 

quality, but do not result in attainment of standards. The Department strongly believes that EPA should change the 

provision to authorize a restoration variance for any activity whose primary purpose is restoration of a waterbody. 

Response 

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

8.g.iv 

8.g.iv: Section C 

Comment ID 0263-A2.001.007 

Author Name: Gretchen Watkins Larry Wawronowicz 

08/04/2015 05:01 PM EDT 2-1207
 
Chapter 2 - Comment Documents Variances 

Organization: Lac du Flambeau Band of Lake Superior Tribe of Chippewa Indians 

The proposed rule fails to protect the uses that are not specified in section 101(a)(2) of the CWA. The same 

demonstration requirements should apply for a variance to a use not specified in section 101(a)(2) of the CWA as would 

apply for a variance to a section 101(a)(2) use. For example, a wild rice designated use is one use that is not listed in 

section 101(a)(2); if a WQS variance to a wild rice water is proposed, a demonstration should be required showing that 

attaining the designated use and criterion is not feasible during the term of the variance because of one of the factors 

listed in 40 CFR 131.10(g) applies or because restoration efforts are being implemented that will improve the integrity of 

the water body. 

Response 

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

8.g.iv 

8.g.iv: Section H 

Comment ID 0268-A2.001.039 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

Demonstrating the Need for a Variance – Supporting Documentation 

We support EPA's use of variances to allow for temporary exceedances during restoration or dam removal activities. 

This is a practical approach to a regulatory conundrum. Id. at 54535. 

We note that the use of modeling data "showing the associated pollutant reductions achievable within the timeframe of 

the variance," id., are useful to support a variance but fall far short of being sufficient to change water quality standards 

including use designations. Looking at Oregon's use of models in its TMDLs to identify purported natural temperatures 

has been fraught with problems because models rely on numerous untested assumptions. There, models have been 

used on mainstem rivers in basins without knowledge of the effect of widespread nonpoint source control throughout 

the basin. Put another way, model outputs are useful but not reliable. In some instances the most important aspect of a 

situation is to start nonpoint source controls and figure out how successful they will be later. Temperature is a good 

example; while it is premature to use model outputs to determine temperature criteria, models can provide useful 

information on necessary riparian buffers even if they will require modification over time (i.e., adaptive management). 

(The models do not produce information on the size of riparian buffers but can be used with a trial-and-error approach 

to determine sufficiency of proposed buffers.) 

Somewhat buried in EPA's preamble is the notion that variances can be a stepping stone to Use Attainability Analyses 

(UAA) that remove or downgrade uses. While we would anticipate this as one potential outcome, EPA appears to be 

condoning it: "A variance should be a transparent mechanism that allows a state, tribe or discharger a defined period of 

time to conduct any necessary studies so long as the state or tribe demonstrates the need for the variance[.]" Id. The 

08/04/2015 05:01 PM EDT 2-1208
 
Chapter 2 - Comment Documents Variances 

"necessary studies" in this context appear to be studies to demonstrate uses should be removed altogether. While we 

agree with EPA's point that compliance schedules cannot be used for this purpose, it is troubling that in addition to 

creating 10-year variances, EPA appears to be promoting variances as a stepping stone towards even less pollution 

control and environmental protection after the 10 years of the variance has expired. Apparently EPA is concerned about 

what this will look like since it uses the word "transparent mechanism" in this sentence but EPA does not explain how a 

variance used as a stepping stone to future lack of protection will be "transparent." What does EPA mean? 

Response 

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

8.g.iv 

8.g.iv: Section K 

Comment ID 0268-A2.001.058 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

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

(2) The State must submit a demonstration justifying the need for a WQS variance [begin new text] by showing. [end 

new text] [begin strikeout] For a WQS variance to a use specified in section 101(a)(2) of the Act or a sub-category of 

such a use, the State must submit a demonstration [end strikeout] that attaining the designated use and criterion is not 

feasible during the term of the WQS variance because: 

(i) One of the factors listed in § 131.10(g) applies, or 

(ii) Actions necessary to facilitate restoration through dam removal or other significant wetland or stream reconfiguration 

activities preclude attainment of the designated use and criterion while the actions are being implemented. 

Response 

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

8.g.iv 

8.g.iv: Section G 

5.h 

Comment ID 0271-A1.001.015 

Author Name: Montoya Victor 

08/04/2015 05:01 PM EDT 2-1209
 
Chapter 2 - Comment Documents Variances 

Organization: Pueblo of Sandia 

15. Addition of paragraph (b)(2) to § 131.14. The Pueblo of Sandia has reviewed the proposed addition and agrees with 

the proposed language. 

Response 

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

8.g.iv 

8.g.iv: Section K 

Comment ID 0283-A1.001.023 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

Similarly, the requirement to show that a variance is necessary is supportable, but the justification requirements should 

be more streamlined and involve less effort than what is required for a UAA under section 131.10(g). 

Response 

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

8.g.iv 

8.g.iv: Section A 

8.G.V - VAR REQ - NPS BMP 

Comment ID 0129-A2.001.016 

Author Name: Steidel Robert
 

Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc.
 

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

B. EPA's proposal states that for a waterbody variance the state must identify and document any cost-effective and 

reasonable BMPs for nonpoint source controls ... that could be implemented. 40 CFR § 131.14 (b)(3) (proposed). 

Although we recognize the need to take all appropriate steps for the protection of water quality during the term of a 

variance, we believe that the provision should more clearly be limited to BMPs otherwise required by law. As drafted, 

the regulation could be misinterpreted to improperly bootstrap a requirement for BMPs not otherwise required as a 

08/04/2015 05:01 PM EDT 2-1210
 
8.g.v 

Chapter 2 - Comment Documents Variances 

condition of the variance. We therefore recommend that section 131.14 (b)(3) refer to "cost-effective and reasonable 

best management practices for nonpoint source controls [begin new text] , otherwise required by law, [end new text] 

related to the pollutants and locations specified in the WQS variance ...." (new wording underlined). 

Response 

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

8.g.v: Section A 

Comment ID 0131-A1.001.019 

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 9 - Requiring identification, documentation, and implementation of best management practices (BMPs) 

greatly expands the intent and authority of EPA and the Clean Water Act and is an inappropriate interpretation of 

Congressional intent. In § 131.14(b)(3) EPA proposes that to obtain a waterbody variance, "...the state must identify 

and document any cost-effective and reasonable best management practices for nonpoint source controls related to the 

pollutant(s) and location(s) specified in the WQS variance that could be implemented to make progress towards 

attaining the designated uses and criterion." This is worrisome language, as it implies that permittees would be required 

to implement nonpoint source controls as a part of their permit conditions if the discharge is to a waterbody that has an 

approved variance. This greatly expands the intent and authority of EPA and the Clean Water Act and is an 

inappropriate interpretation of Congressional intent. If this section is not deleted in its entirety, we suggest revising 

these sections as follows: 

§ 131.14(b)(3) - "For a waterbody variance the state must identify and document [begin strikeout] any cost effective and 

reasonable best management practices for nonpoint source controls related to the pollutant(s) and location(s) specified 

in the WQS variance [end strikeout] [begin new text] an adaptive management framework [end new text] that could be 

implemented to make progress towards attaining the designated use and criterion. A State must provide public notice 

and comment for any such documentation." 

In § 131.14(d), EPA also requires the state to document "...to what extent BMPs have been implemented..." and the 

"...water quality progress achieved during the variance period..." to renew a waterbody variance. Again this is 

worrisome language, as it implies that permittees would be required to implement nonpoint source controls as a part of 

their permit conditions if the discharge is to a waterbody that has an approved variance. Further, we note that 

demonstrating "water quality progress" through implementation of non-point source controls is likely not reasonable 

over short variances periods. We suggest revising this section as follows: 

§ 131.14(d) - "...for a waterbody WQS variance renewal, the state must also provide documentation [begin new text] 

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that reasonable progress is being made [end new text] [begin strikeout] of whether and to what extent BMPs have been 

implemented [end strikeout] to address the pollutant(s) subject to the WQS variance [begin strikeout] and the water 

quality progress achieved [end strikeout] during the WQS variance period. Renewal of a WQS variance may be 

disapproved if the applicant did not comply with the conditions of the original WQS variance, or otherwise does not 

meet the requirements of this section." 

Response 

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

8.g.v 

8.g.v: Section A 

Comment ID 0133-A2.001.018 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

f. LDEQ has concern that to justify a variance, the proposed language suggests that states would have to list out best 

management practices (BMPs) for sources that LDEQ has no regulatory authority over, i.e. nonpoint source (NPS). 

Response 

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

8.g.v 

8.g.v: Section B 

Comment ID 0150-A1.001.015 

Author Name: Heisig-Mitchell Jamie 

Organization: Hampton Roads Sanitation District 

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

2. EPA's proposal states that for a waterbody variance the state must identify and document any cost-effective and 

reasonable BMPs for nonpoint source controls . . . that could be implemented. 40 CFR § 131.14 (b)(3) (proposed). 

Although HRSD recognizes the need to take all appropriate steps for the protection of water quality during the term of a 

variance, the provision should more clearly be limited to BMPs otherwise required by law. As drafted, the regulation 

could be misinterpreted to improperly bootstrap a requirement for BMPs not otherwise required as a condition of the 

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variance. Section 131.14 (b)(3) should be revised to refer to "cost-effective and reasonable best management practices 

for nonpoint source controls [begin new text], otherwise required by law, [end new text] related to the pollutants and 

locations specified in the WQS variance . . . ." (new wording underlined). 

Response 

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

8.g.v 

8.g.v: Section A 

Comment ID 0156-A1.001.015 

Author Name: Jackie Kepke Adam Link 

Organization: California Association of Sanitation Agencies and Tri-TAC 

Second, CASA and Tri-TAC are supportive of the concept related to identification and documentation of BMPs for 

nonpoint sources for waterbody variances, since this class of dischargers is important for water quality standards 

attainability. However, we are concerned that if one or more POTWs is participating with a State agency to develop the 

justification for a variance for a waterbody, the POTWs might be required to develop (or pay to develop) identification 

and documentation of BMPs for nonpoint sources. This is an inappropriate use of municipal public resources. 

Therefore, we request that if this activity is retained in the regulation, it should be specifically indicated as a 

responsibility of the State governments and not third parties that are not nonpoint source dischargers. 

Response 

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

8.g.v 

8.g.v: Section C 

Comment ID 0158-A1.001.033 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[Copied regulatory text and made no suggested edits.] 

(3) For a waterbody variance, the state must identify and document any cost-effective and reasonable best 

management practices for nonpoint source controls related to the pollutant(s) and location(s) specified in the WQS 

variance that could be implemented to make progress towards attaining the designated use and criterion. A State must 

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Chapter 2 - Comment Documents Variances 

provide public notice and comment for any such documentation. 

Response 

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

8.g.v 

8.g.v: Section D 

Comment ID 0160-A2.001.013 

Author Name: West Jeff 

Organization: Xcel Energy 

Second, EPA proposes in Section 131.14 that adoption of waterbody variances require identification and documentation 

of best management practices for nonpoint source control. Further, EPA proposes to require documentation of the 

implementation of BMPs to renew a waterbody variance. 

Response 

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

8.g.v 

8.g.v: Section D 

Comment ID 0160-A2.001.016 

Author Name: West Jeff 

Organization: Xcel Energy 

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

§ 131.14 Water quality standards variances. 

... 

Strike out all of 131.14(b)(3). 

... 

(d) WQS variance renewals: EPA may approve a WQS variance renewal if the State meets the requirements of this 

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Chapter 2 - Comment Documents Variances 

section and provides documentation of the actions taken to meet the requirements of the previous WQS variance. 

[begin strikeout] For a waterbody WQS variance renewal, the state must also provide documentation of whether and to 

what extent BMPs have been implemented to address the pollutant(s) subject to the WQS variance and the water 

quality progress achieved during the WQS variance period. [end strikeout] Renewal of a WQS variance may be 

disapproved if the applicant did not comply with the conditions of the original WQS variance, or otherwise does not 

meet the requirements of this section. 

Response 

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

8.g.v 

8.g.v: Section E 

Comment ID 0161-A2.001.009 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

7. Section §131.14(b)(3) states "For a waterbody variance, the state must identify and document any cost-effective and 

reasonable best management practices for nonpoint source controls related to the pollutant(s) and location(s) specified 

in the WQS variance that could be implemented to make progress towards attaining the designated use and criterion. A 

State must provide public notice and comment for any such documentation." 

• Nonpoint discharges do not currently require a permit pursuant to these federal provisions or Iowa law. States may 

adopt regulatory programs to address nonpoint sources of pollution. Unless Iowa imposes a regulatory framework upon 

nonpoint sources of water pollution there is no mechanism available to require or verify the nonpoint best management 

practices referenced in the proposed rule and therefore such review cannot occur. 

Response 

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

8.g.v 

8.g.v: Section A 

8.g.v: Section B 

Comment ID 0166-A2.001.033 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

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Chapter 2 - Comment Documents Variances 

[Copied regulatory text and made no suggested edits.] 

(3) For a waterbody variance, the state must identify and document any cost-effective and reasonable best 

management practices for nonpoint source controls related to the pollutant(s) and location(s) specified in the WQS 

variance that could be implemented to make progress towards attaining the designated use and criterion. A State must 

provide public notice and comment for any such documentation. 

Response 

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

8.g.v 

8.g.v: Section D 

Comment ID 0172-A2.001.007 

Author Name: Foster Tad 

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

[This excerpt contains additions to the proposed regulation text that are in all caps. Refer to the original document for 

recommended edits.] 

VARIANCES: 

At § 131.14 (b)(2)(i), the variance is justified on the basis of one of the six factors listed in 131.10(g). Again, the 

statement of basis and purpose must make clear that only one of the six is necessary and that none of the first five 

require demonstration of "widespread and substantial adverse economic or social impacts" as a condition precedent to 

finding any of the five are demonstrated. 

At § 131.14(b)(3) it should be amended to read: 

For a waterbody variance, the state must identify and document any cost-effective and reasonable best management 

practices for nonpoint source controls [begin new text] UNDER THE CONTROL OF THE DISCHARGER [end new text] 

related to the pollutant(s)specified in the WQS variance that could be implemented to make progress towards attaining 

the designated use and criterion. A state must provide public notice and comment for any such documentation. 

Various EPA Regions have accepted that limitation in approval of state antidegradation provisions. 

Response 

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

8.g.v 

08/04/2015 05:01 PM EDT 2-1216
 
Chapter 2 - Comment Documents Variances 

8.g.v: Section B 

Comment ID 0175-A1.001.027 

Author Name: Canton Steven
 

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

Section 131.14(b)(3) states that "...the state must identify and document any cost-effective and reasonable best 

management practices for nonpoint source controls related to the pollutant(s) and location(s) specified in the WQS 

variance that could be implemented...". 

g. As regulation of NPS exceeds EPA's CWA authority, and, even if allowed, would be very complicated to assess and 

control as part of the variance process, this requirement should be deleted. 

h. Additionally, use of the language "must identify", "any cost-effective" and "could be implemented" is very restrictive 

and inappropriately removes much or all of the states' discretion. 

Response 

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

8.g.v 

8.g.v: Section A 

Comment ID 0184-A2.001.025 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

Second, EPA proposes in Section 131.14 that adoption of waterbody variances require identification and documentation 

of best management practices for nonpoint source control. Further, EPA proposes to require documentation of the 

implementation of BMPs to renew a waterbody variance. 

Response 

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

8.g.v 

8.g.v: Section D 

08/04/2015 05:01 PM EDT 2-1217
 
Chapter 2 - Comment Documents Variances 

Comment ID 0184-A2.001.028 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

• § 131.14 Water quality standards variances. 

Strike out all of 131.14(b)(3). 

Response 

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

8.g.v 

8.g.v: Section E 

Comment ID 0186-A1.001.030 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

The provision for renewing water body WQS variances should include evaluation of the effectiveness of all BMPs 

identified and implemented when the variance is initially adopted by the state. 

Proposed 40 CFR 131.14(d) (78 Fed. Reg. 54545) requires states to provide documentation of whether and to what 

extent BMPs have been implemented to address the pollutant(s) subject to the previous WQS variance and the 

progress that has been made during the variance period. The proposed rule does not require that states assess the 

effectiveness of the BMPs that were implemented and whether changes or additional BMPs should be implemented by 

non-point sources that cause and/or contribute to the non-attainment in the water body. API recommends that EPA 

include a requirement that states evaluate the effectiveness of any BMPs that were implemented during the previous 

variance period and make recommendations for improvements to the BMP program that are appropriate, if any. 

Response 

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

8.g.v 

8.g.v: Section F 

Comment ID 0188-A2.001.009 

08/04/2015 05:01 PM EDT 2-1218
 
Chapter 2 - Comment Documents Variances 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

7. Section §131.14(b)(3) states "For a waterbody variance, the state must identify and document any cost-effective and 

reasonable best management practices for nonpoint source controls related to the pollutant(s) and location(s) specified 

in the WQS variance that could be implemented to make progress towards attaining the designated use and criterion. A 

State must provide public notice and comment for any such documentation." 

• Nonpoint discharges do not currently require a permit pursuant to these federal provisions or Iowa law. States may 

adopt regulatory programs to address nonpoint sources of pollution. Unless Iowa imposes a regulatory framework upon 

nonpoint sources of water pollution there is no mechanism available to require or verify the nonpoint best management 

practices referenced in the proposed rule and therefore such review cannot occur. 

Response 

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

8.g.v 

8.g.v: Section B 

Comment ID 0194-A1.001.019 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

2. Other proposed subsections that likewise seem to add to or significantly amend existing requirements in ways that go 

beyond existing law or understandings, with no apparent purpose other than to add complexity and burdens, include: 

• Mandating that the state agency assess and report on reasonable best management practices for nonpoint sources 

related to the pollutant(s) and location(s) specified in the WQS variance, including providing "public notice and comment 

for any such documentation." (131.14(b)(3)). This presents the possibility of penalizing a permittee for the failure of a 

state agency to address or document its nonpoint source control program, and could lengthen the process for obtaining 

a variance for reasons unrelated to and beyond the control of the discharger seeking it. 

Response 

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

8.g.v 

8.g.v: Section A 

8.g.v: Section B 

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Chapter 2 - Comment Documents Variances 

Comment ID 0196-A1.001.021 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

Finally the proposal inappropriately requires states to "identify and document any cost-effective and reasonable best 

management practices for non-point source controls related to the pollutants and locations specified in the WQS 

variance that could be implemented to make progress towards attaining the designated use and criterion." EPA cannot 

base variances for point source dischargers on conditions concerning the implementation of nonpoint source controls. 

Response 

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

8.g.v 

8.g.v: Section A 

8.g.v: Section B 

Comment ID 0201-A1.001.028 

Author Name: Godfrey Mike 

Organization: Alabama Power 

And, for the renewal of water body variances, EPA should eliminate its proposed requirement that States must submit 

adequate proof regarding use of best management practices for nonpoint source controls to address pollutants subject 

to the variance, as well as the water quality progress achieved during the variance period. The level of proof required is 

not adequately defined or explained and will likely be interpreted inconsistently among EPA's regions. Moreover, such a 

burden will undoubtedly force States to dedicate significant resources to conduct engineering and scientific studies, as 

well as regulatory negotiation and even litigation, all to justify the continuance of a variance the State-the entity 

Congress tabbed as the one with primary responsibility for establishing and implementing WQS-deems necessary. 

Response 

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

8.g.v 

8.g.v: Section G 

Comment ID 0203-A1.001.025 

Author Name: Christman Jim 

08/04/2015 05:01 PM EDT 2-1220
 
Chapter 2 - Comment Documents Variances 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

To renew a waterbody variance, the state would have to document "whether and to what extent BMPs have been 

implemented" and the "water quality progress achieved" during the variance. Proposed § 131.14(d). This would, in 

effect, federalize state BMPs for nonpoint sources, heretofore recognized by everybody as a state responsibility. 

Response 

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

8.g.v 

8.g.v: Section A 

Comment ID 0207-A1.001.015 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

•Nonpoint source BMPs - The requirements relating to nonpoint source controls encroach on state primacy and exceed 

EPA's CWA authority. 

Response 

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

8.g.v 

8.g.v: Section A 

Comment ID 0207-A1.001.035 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

EPA proposes to require states to "identify and document any cost-effective and reasonable best management 

practices for nonpoint source controls related to the pollutants and locations specified in the WQS variance that could 

be implemented to make progress towards attaining the designated use and criterion" and provide public notice and 

comment for such documentation. Proposed § 131.14(b)(3). State adoption of nonpoint source best management 

practices (BMPs) is solely a matter of state law and a mandate to list BMPs that "could be implemented" is not 

authorized under § 303 of the CWA. EPA's sole authority relating to the identification of nonpoint source controls is in § 

319 of the Act and the mandates in § 319 can only be enforced by making or withholding grants under § 313(h), not by 

attaching conditions to variances. [FN5] Thus, EPA must eliminate the proposal to list nonpoint source BMPs as a 

08/04/2015 05:01 PM EDT 2-1221
 
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condition of variance approval. 

[FN5] EPA has no authority to identity nonpoint source BMPs for a State. Section 319(e) provides for local, not federal 

nonpoint source management programs in the event that a State declines to develop a program. 

Response 

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

8.g.v 

8.g.v: Section A 

Comment ID 0207-A1.001.037 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

Further, a variance renewal also must "provide documentation of whether and to what extent BMPs have been 

implemented to address the pollutant(s) subject to the WQS variance." Proposed §131.14(d). 

Response 

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

8.g.v 

8.g.v: Section D 

Comment ID 0208-A1.001.017 

Author Name: Foster Wade 

Organization: The Fertilizer Institute 

VII. Nonpoint Source Control: WQS Variances & Antidegradation Policy Amendments 

The Proposed Rule should not require state and tribal entities to impose "any" and "all" controls and best management 

practices for nonpoint sources: the CWA vests that authority exclusively in states and tribes. As noted above, while the 

Proposed Rule's clarifications acknowledge state and tribal authority and "discretion,"[FN31] the operative provisions 

thereof would unlawfully interfere with their exclusive administrative authorities under the CWA, especially with respect 

to nonpoint sources. Specifically, under the proposed antidegradation and variance regulations for 40 C.F.R. §§ 131.12 

and 131.14, the Proposed Rule purports to create mandatory duties for states and tribes to identify, weigh, and 

undertake nonpoint source controls and related best management practices for activities far beyond EPA's jurisdiction, 

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as follows: 

§ 131.12 Antidegradation Policy and Implementation Methods. (a) The State shall develop and adopt a statewide 

antidegradation policy. The antidegradation policy shall, at a minimum, be consistent with the following: 

. . . 

(2) Where the quality of the waters exceed levels necessary to support the protection and propagation of fish, shellfish, 

and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds . . . 

that allowing lower water quality is necessary to accommodate important economic or social development in the area in 

which the waters are located. In allowing such degradation or lower water quality, the State shall ensure water quality 

adequate to protect existing uses fully. Further, the state shall ensure that there shall be achieved the 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. 

. . . 

(b) . . . (2) The State will only make a finding that lowering high water quality is necessary pursuant to paragraph (a)(2) 

of this section after conducting an alternatives analysis that evaluates a range of non-degrading and minimally 

degrading practicable alternatives that have the potential to prevent or minimize the degradation associated with the 

proposed activity. If the State can identify any-practicable [sic] alternatives, the State must choose one of those 

alternatives to implement when authorizing a lowering of high water quality. 

. . . 

§ 131.14 Water quality standards variances. 

. . . 

(b) Submission Requirements: (3) For a waterbody variance, the state must identify and document any cost-effective 

and reasonable best management practices for nonpoint source controls related to the pollutant(s) and location(s) 

specified in the WQS variance that could be implemented to make progress towards attaining the designated use and 

criterion. A State must provide public notice and comment for any such documentation.[FN32] 

Both of these rule amendments, on their face, attempt to exert authority over nonpoint sources. The Proposed Rule's 

new paragraph 131.12(b)(2) anti-degradation provision would require states to demonstrate that it had considered and 

rejected "any practicable alternative" before allowing a lowering of water quality in Tier 2 waters, and these "practicable 

alternatives" explicitly include "best management practices for non-point sources." The Proposed Rule's explanation for 

the variance provision elaborates that "states and tribes should consider the impacts from implementing any costeffective and reasonable BMPs [n.29: (i.e., not just those that may already be required by state regulations)] for 

nonpoint source controls water body wide."[FN33] This apparently seeks to refer state and tribal regulators to 

extraneous standards to "guide" implementation of the new mandatory duties related to nonpoint sources that would be 

created by the operative provisions of the Proposed Rule. 

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[FN31] See, e.g., 78 Fed. Reg. at 54,522-23, 54,530-532 ("[S]tates and tribes have broad discretion to determine the 

appropriate level of specificity to use in identifying and defining designated uses, and nothing in this proposal is 

intended to narrow that discretion. . . . States and tribes have considerable discretion in how they address each of the 

elements of antidegradation implementation specified in the regulation. . . . States and tribes retain discretion as to 

whether, when, and where to adopt variances."). 

[FN32] Id. at 54,544-545 (emphasis added). 

[FN33] Id. at 54,535-536 & n.29 (emphasis added). 

Response 

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

8.g.v 

8.g.v: Section A 

7.l 

Comment ID 0208-A1.001.019 

Author Name: Foster Wade 

Organization: The Fertilizer Institute 

EPA should remove any procedural or substantive requirements relating to nonpoint sources or state and tribal purview 

over those sources from the Proposed Rule, and clarify (as it has in the past) that intervening in state and tribal 

decisions regarding nonpoint sources would go beyond EPA's authority under the CWA.[FN41] 

[FN41] See EPA, Memorandum re: "Interpretation of Federal Antidegradation Regulatory Requirement," at 2-4, cited 

and quoted supra. 

Response 

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

8.g.v 

8.g.v: Section A 

8.g.v: Section E 

7.f.ii 

7.l 

8.m 

Comment ID 0212-A1.001.007 

08/04/2015 05:01 PM EDT 2-1224
 
Chapter 2 - Comment Documents Variances 

Author Name: Norton Kelly 

Organization: Arizona Mining Association 

• Public process related to documentation of nonpoint source BMPs that "could be implemented" (waterbody variance 

only): (a) For a waterbody variance only (as opposed to a discharger-specific variance), a state must "identify and 

document any cost-effective and reasonable best management practices for nonpoint source controls related to the 

pollutant(s) and location(s) specified in the WQS variance that could be implemented to make progress towards 

attaining the designated use and criterion." See proposed 40 C.F.R. § 131.14(b)(3). The preamble makes clear that it is 

not necessary to implement these measures, but merely to identify them and inform the public of them. See 78 Fed. 

Reg. at 54535-56. The AMA supports this limited use of any such information, but believes it should be stated more 

clearly in the rule text (e.g., by adding "for information purposes only" after "identify and document" in the first paragraph 

of proposed 40 C.F.R. § 131.14(b)(3)). The AMA also supports requiring this sort of information only in the context of a 

waterbody variance. 

(b) However, the proposal further requires that the state must provide public notice and comment for this 

documentation. Given that the variance itself is subject to public participation requirements (as specified in the first 

sentence of 40 C.F.R. § 131.14), and that the BMPs are being identified for information purposes only, it is not clear 

why a separate public process is required. The AMA questions the need for this additional process. 

Response 

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

8.g.v 

8.g.v: Section H 

8.g.v: Section I 

Comment ID 0218-A1.001.008 

Author Name: Elardo Pam 

Organization: King County Department of Natural Resources and Parks 

• Retain and strengthen the inclusion of non-point source pollution reduction in variance requirements 

Response 

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

8.g.v 

8.g.v: Section D 

08/04/2015 05:01 PM EDT 2-1225
 
Chapter 2 - Comment Documents Variances 

Comment ID 0218-A1.001.016 

Author Name: Elardo Pam 

Organization: King County Department of Natural Resources and Parks 

King County requests the EPA to retain and strengthen the inclusion of non-point source pollution reduction in variance 

requirements. 

We support the EPA's clarification to water body variances, in that a state must include "... an identification and 

documentation of any cost-effective and reasonable BMPs for non-point sources related to the pollutant(s) and 

locations(s) specified in the variance that could be implemented water body-wide to make progress towards attaining 

the designated use and criterion." As noted above, such measures requiring state-level commitments must be moving 

forward, while each individual permit does its part. 

Response 

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

8.g.v 

8.g.v: Section D 

Comment ID 0222-A1.001.005 

Author Name: Modeer David 

Organization: Western Urban Water Coalition 

Clarification of Best Management Practices and Variances. There exists uncertainty and confusion surrounding EPA's 

reference in the proposal to the achievement of "all cost-effective and reasonable best management practices [BMPs] 

for nonpoint sources." See Preamble at E.4(c)(iv). [FN1] The "variance" section of the proposal, where EPA refers to 

the implementation of "cost-effective and reasonable BMPs," presents the same issue. See Preamble at F.2.B.III. 

Clarity should be added to these provisions by cross-referencing the language contained in Chapter 4 of the Water 

Quality Standards Handbook, i.e., BMPs are not required where such requirements have not been adopted by the state. 

The current BMP references in the Proposed Rule should not have the effect of indirectly establishing mandatory 

requirements under the section 319 nonpoint source program. In other words, EPA should not through the Proposed 

Rule regulate nonpoint sources through BMPs when BMP requirements have not been imposed by states. Clarification 

on this point should be provided in the final rule. 

[FN1] For purposes of greater specificity, we cite to sections of the Preamble and to specific proposed rules rather than 

to Federal Register pages on which the cited language appears. 

Response 

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

8.g.v 

8.g.v: Section A 

Comment ID 0222-A1.001.019 

Author Name: Modeer David 

Organization: Western Urban Water Coalition 

WQS Variances. EPA has encouraged states and tribes to utilize WQS variances, where appropriate, as an important 

tool that provides states and tribes with time to make progress towards attaining a designated use and criteria. EPA has 

interpreted the CWA to allow for a variance if the state or authorized tribe demonstrates that the variance meets the 

same requirements as a permanent designated use change, even though the WQS regulation lacks explicit provisions 

for this purpose. The lack of specific regulations regarding variances has led to confusion, inconsistency, and mixed 

interpretations about how, when, and where variances may be used appropriately. WUWC therefore has the following 

specific comments on the variance provision: 

1. Under the proposed language for section 131.14(b)(3), the state must identify best management practices (BMPs) 

that could be implemented. Please explain what happens in the event that BMPs are not implemented. WUWC 

assumes that the variance will still be approved, as the point source seeking the same may have no jurisdiction or 

control over the nonpoint contribution. 

Response 

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

8.g.v 

8.g.v: Section J 

Comment ID 0225-A1.001.011 

Author Name: Blackham Leonard 

Organization: Utah Department of Agriculture and Food 

(3) 

The EPA is attempting to regulate in areas over which it has no authority. This section would require the state to 

"identify and document any cost-effective and reasonable best management practices for nonpoint source controls!' 

The EPA has no authority to regulate nonpoint source. Nonpoint sources were given to the states to regulate under the 

Clean Water Act. EPA is attempting to use the implementation of variances to spread its authority into nonpoint source 

areas. This is in opposition to the purpose and goals of the Clean Water Act as well as the principle of federalism 

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codified in the act. The EPA could request and suggest that the states evaluate non-point sources but they cannot 

require it. 

(d) 

The idea of documenting of BMP implementation is a valid request and the states should be keeping records of the 

implementations, but it should not and cannot be required by the EPA as they have no authority. Therefore, it cannot be 

a requirement for variance approval. This would be a violation of the principle of federalism the Clean Water Act 

codifies. 

Response 

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

8.g.v 

8.g.v: Section A 

8.m 

Comment ID 0231-A2.001.022 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

o s. 131,14(b)(3), review of BMPs and NPS should not be included in the rule, as this is outside EPA's CWA authority. 

Also, such review would be complicated to assess or control as part of the WQS variance process. 

Response 

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

8.g.v 

8.g.v: Section A 

Comment ID 0234-A2.001.030 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

EPA should not attempt to attach WQS variance conditions that relate to State implementation of WQS programs. For 

example, for a variance applicable to a water-body, EPA is proposing to require States to "identify and document any 

cost-effective and reasonable best management practices for nonpoint source controls related to the pollutants and 

08/04/2015 05:01 PM EDT 2-1228
 
Chapter 2 - Comment Documents Variances 

locations specified in the WQS variance that could be implemented to make progress towards attaining the designated 

use and criterion" and provide public notice and comment for such documentation. Proposed § 131.14(b)(3). This 

language could be construed as an invitation to include conditions in a variance related to nonpoint sources. EPA 

should not create barriers to regulatory relief for point source dischargers by imposing conditions on the implementation 

of activities, such as nonpoint source controls, that are out of the control of point source dischargers. 

Response 

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

8.g.v 

8.g.v: Section B 

8.g.v: Section C 

Comment ID 0236-A2.001.029 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

WDNR supports the following clarifications: 

• Waterbody variances (as opposed to facility-specific variances) require identification and documentation of any costeffective and reasonable BMPs for nonpoint sources related to the pollutant(s) and location(s) specified in the variance 

that could be implemented waterbody-wide to make progress towards attaining the designated use and criterion and 

this identification and documentation should be noticed for public comment. 

• The EPA does not expect states or tribes to evaluate nonpoint source controls for non-anthropogenic factors, as 

controlling nonpoint sources would not lead to attainment. 

Response 

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

8.g.v 

8.g.v: Section D 

Comment ID 0240-A2.001.028 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

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Chapter 2 - Comment Documents Variances 

Section 131.14(b)(3) states that "...the state must identify and document any cost-effective and reasonable best 

management practices for nonpoint source controls related to the pollutant(s) and location(s) specified in the WQS 

variance that could be implemented...". 

g. As regulation of NPS exceeds EPA's CWA authority, and, even if allowed, would be very complicated to assess and 

control as part of the variance process, this requirement should be deleted. 

h. Additionally, use of the language "must identify", "any cost-effective" and "could be implemented" is very restrictive 

and inappropriately removes much or all of the states' discretion. 

Response 

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

8.g.v 

8.g.v: Section A 

Comment ID 0244-A2.001.013 

Author Name: Loomis Marion 

Organization: Wyoming Mining Association 

3. Review of best management practices (BMPs) and non-point sources (NPS) should not be included in this rule. WMA 

believes that basing variances for point sources on conditions for non-point source control is outside of EPA's authority. 

Response 

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

8.g.v 

8.g.v: Section A 

Comment ID 0248-A2.001.020 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

Fourth, the proposed variance provision requires states to "identify and document any cost effective and reasonable 

best management practices ["BMPs"] for non point source controls related to the pollutant(s) and location(s) specified in 

the WQS variance that could be implemented to make progress towards attaining the designated use and criterion." 

See Proposed § 131.14(b)(3). 

08/04/2015 05:01 PM EDT 2-1230
 
Chapter 2 - Comment Documents Variances 

Response 

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

8.g.v 

8.g.v: Section D 

Comment ID 0248-A2.001.022 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

Moreover, as drafted the provision again will invite wasteful and time consuming litigation in connection with any 

variance request or approval because what constitutes a "reasonable" method to address non-point sources is a highly 

subjective policy matter. 

Response 

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

8.g.v 

8.g.v: Section G 

Comment ID 0249-A2.001.016 

Author Name: Calamita F. Paul 

Organization: General Counsel on behalf of The Wet Weather Partnership et al. 

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

B. EPA's proposal states that for a waterbody variance the state must identify and document any cost-effective and 

reasonable BMPs for nonpoint source controls . . . that could be implemented. 40 CFR § 131.14 (b)(3) (proposed). 

Although we recognize the need to take all appropriate steps for the protection of water quality during the term of a 

variance, we believe that the provision should more clearly be limited to BMPs otherwise required by law. As drafted, 

the regulation could be misinterpreted to improperly bootstrap a requirement for BMPs not otherwise required as a 

condition of the variance. We therefore recommend that section 131.14 (b)(3) refer to "cost-effective and reasonable 

best management practices for nonpoint source controls, [begin new text] otherwise required by law, [end new text] 

related to the pollutants and locations specified in the WQS variance . . . ." (new wording underlined). 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.g.v 

8.g.v: Section A 

Comment ID 0251-A2.001.018 

Author Name: Wigal Jennifer 

Organization: Oregon Department of Environmental Quality 

Waterbody Variances 40 CFR §131.14(b)(3) 

EPA's proposed prerequisite requirements for a waterbody variance are overly burdensome and provide a disincentive 

to its use. 

As part of its description of needed analyses to obtain a waterbody variance, EPA proposes to require states to identify 

and document any cost-effective and reasonable best management practices for nonpoint source controls related to the 

pollutant for which a variance is requested. Further, in order to renew a waterbody variance (40 CFR §131.14(a)), the 

state must provide documentation to what extent BMPs have been implemented. The proposed rules preamble 

indicates that this requirement extends beyond those BMPs that may already be required by state regulations. While 

DEQ does not disagree that all sources of a pollutant should be evaluated to address relevant reductions to an entire or 

large portion of a waterbody, this type of data collection and analysis is better suited to the development of a Total 

Maximum Daily Load. As a result, DEQ does not see the benefit to using this type of variance, and it is unlikely Oregon 

would pursue this kind of variance. 

Response 

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

8.g.v 

8.g.v: Section K 

Comment ID 0268-A2.001.040 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

Identifying and Documenting the Controls for Other Sources Related to the Pollutant(s) and Location(s) Specified in a 

Waterbody Variance That Could be Implemented 

We support EPA's proposed rule that would require states to identify and document any cost effective and reasonable 

best management practices (BMP) for nonpoint sources related to the pollutant(s) and location(s) specified in a 

08/04/2015 05:01 PM EDT 2-1232
 
Chapter 2 - Comment Documents Variances 

variance. It is unclear why EPA restricts this requirement to waterbody variances and we strongly urge that any such 

provisions apply to all variances. The same need as EPA establishes in the preamble for water body variances is 

needed for variances issued to individual dischargers in any situation where nonpoint sources are a primary or even 

major contributor to impairment. 

EPA completely skirts the question of how this information it proposes be derived on BMPs will be used. Despite EPA's 

repeated suggestions that variances will be used to move waters towards full attainment, EPA does not require that 

these identified BMPs be used as part of the variance nor that failure to use them over the course of the variance can 

and will be considered in whether the variance will be reissued. Instead, the proposed rule merely states that a state 

"must also provide documentation of whether and to what extent BMPs have been implemented." Proposed 40 C.F.R. § 

131.14(d). This relegates the BMPs to a status of being interesting but unhelpful in improving water quality. In addition, 

to the extent that EPA believes that the mere identification of BMPs will assist in their being implemented, a position 

that we support as a first but inadequate step, it does that goal a disservice by not specifying what EPA will accept as 

BMPs that are "cost-effective and reasonable." Id. As discussed below, EPA's proposed rule language undermines this 

effort. In addition, EPA must ensure that the BMPs are clear, numeric, easy to determine if they are in effect or not, 

sufficient in number (i.e., more than one BMP may be required in tandem), and not, as footnote 29 mentions, just the 

BMPs that are already required by law. There is every reason to expect states to simply refer to existing BMPs and 

perhaps not even explicitly but just by sister state agency. There is every reason to expect states to point to NRCS Field 

Office Technical Guides ("FOTG") as what is "cost-effective and reasonable" even though the FOTGs are not clear and 

measurable and they were not developed to protect water quality. Also likely are references to various plans, none of 

which contain measurable BMPs. Without more detail in what EPA expects to see spelled out in the rule, EPA should 

expect the most vague, least protective, and least readily measured BMPs to be "identified and documented" by the 

states. 

Response 

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

8.g.v 

8.g.v: Section G 

8.g.v: Section L 

8.g.v: Section M 

Comment ID 0268-A2.001.059 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

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

(3) [begin strikeout] For a waterbody variance,[end strikeout] The state must identify and document [begin strikeout] any 

[end strikeout] [begin new text] all [end new text] cost-effective and reasonable best management practices for nonpoint 

source controls related to the pollutant(s) and location(s) specified in the WQS variance that could be implemented to 

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Chapter 2 - Comment Documents Variances 

make progress towards attaining the designated use and criterion. [begin strikeout] A State must provide public notice 

and comment for any such documentation. [end strikeout] [begin new text] The BMPs identified must be readily 

measurable. The state must provide a plan for achieving implementation of the identified BMPs including timeframes for 

their achievement, methods of assuring their implementation, and a monitoring plan to evaluate implementation. This 

plan will constitute conditions of the variance that apply to the state. [end new text] 

Response 

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

8.g.v 

8.g.v: Section L 

8.g.v: Section M 

Comment ID 0271-A1.001.016 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

16. Addition of paragraph (b)(3) to § 131.14. The Pueblo of Sandia has reviewed the proposed addition and agrees with 

the proposed language. 

Response 

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

8.g.v 

8.g.v: Section D 

Comment ID 0275-A2.001.006 

Author Name: Reeves Sarah 

Organization: Colorado Monitoring Framework 

Water Quality Variance Renewals - § 131.14(d). 

This section states, in part that "for a waterbody WQS variance renewal, the state must also provide documentation of 

whether and to what extent BMPs have been implemented to address the pollutant(s) subject to the WQS variance and 

the water quality progress achieved during the WQS variance period." The CMF is concerned that this language will 

result in point sources being required to accomplish nonpoint source control in order to extend a variance. This concept 

seems more applicable in a TMDL context rather than a variance, point sources generally do not have the ability to 

08/04/2015 05:01 PM EDT 2-1234
 
Chapter 2 - Comment Documents Variances 

implement controls on others' land, and the states should have flexibility to deal with identified sources on a timeline 

that considers the site-specific issues in that watershed. To that end, CMF believes that variance implementation and 

renewal should be left to the states. 

Response 

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

8.g.v 

8.g.v: Section B 

8.g.v: Section C 

8.i 

Comment ID 0280-A2.001.016 

Author Name: Aspatore Amanda 

Organization: National Mining Association 

Finally the proposal inappropriately requires states to "identify and document any cost-effective and reasonable best 

management practices for non-point source controls related to the pollutants and locations specified in the WQS 

variance that could be implemented to make progress towards attaining the designated use and criterion." EPA cannot 

base variances for point source dischargers on conditions concerning the implementation of nonpoint source controls. 

Response 

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

8.g.v 

8.g.v: Section A 

Comment ID 0283-A1.001.024 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

It is not clear why there needs to be identification and documentation of any cost-effective and reasonable BMPs for 

non-point sources during the variance unless those sources are discharges subject to the variance. If the variance is 

waterbody-wide and necessary to provide regulatory relief for a short period for point sources, it is not clear why this 

additional work needs to be done to address non-point sources. 

08/04/2015 05:01 PM EDT 2-1235
 
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Response 

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

8.g.v 

8.g.v: Section B 

8.g.v: Section K 

8.G.VI - VAR REQ - OTHER SUGG 

Comment ID 0130-A1.001.005 

Author Name: Schregardus Donald 

Organization: Department of Defense, Office of the Assistant Secretary (Energy, Installations and Environment) 

1. Water Quality Standards (WQS) Variances- Background 

Proposed Requirement or Section Addressed: In section III.F.1. of the preamble, EPA states, "Variances can be 

appropriate to address situations where it is known that the designated use and criterion are unattainable today (or for a 

limited period of time) but feasible progress could be made toward attaining the designated use and criterion." 

Comment: In regard to a Use Attainability Analysis (UAA), it is not clear what a "structured scientific assessment" 

requires, e.g., discharge monthly report (DMR) data or official scientific study by outside agencies. It is also not clear 

what objective quality evidence (OQE) is required to claim that the "designated use and criterion are unattainable." 

Discussion: To state that a "criterion is unattainable" does the intermittent monthly DMR data that shows exceedances 

suffice as QOE? Or will an official study be required? 

Recommendation: EPA should allow the use of NPDES Permit DMR data as evidence to support a claim that a criterion 

is "unattainable" and thus request a WQS variance. 

Response 

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

8.g.vi 

5.g 

Comment ID 0211-A1.001.010 

Author Name: Lane David 

08/04/2015 05:01 PM EDT 2-1236
 
Chapter 2 - Comment Documents Variances 

Organization: Minnesota Environmental Science and Economic Review Board 

With regard to the documentation required from states for a variance, the proposal is excessive and looks very close to 

what would otherwise be required for a use attainability analysis (UAA). As EPA itself notes throughout the proposal, a 

variance is time-limited and "lies on top of" the otherwise applicable water quality standard for the water body in 

question. A variance is not a petition to change the designated use of a water body; therefore, the EPA should reexamine the criteria for a state to grant a variance, and refine the scope of documentation needed to reflect a variance's 

true purpose. 

Response 

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

8.g.vi 

8.H - VAR - IMPLEMENTATION 

Comment ID 0158-A1.001.034 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[Copied regulatory text and made no suggested edits.] 

(c) Implementing variances in NPDES permits: Consistent with paragraph (a)(2)(ii) of this section, a WQS variance 

serves as the basis of a water quality-based effluent limit included in a NPDES permit for the period the variance is in 

effect. Any limitations required to implement the WQS variance shall be included as conditions of the NPDES permit for 

the permittee(s) subject to the WQS variance. 

Response 

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

8.h 

8.h: Section A 

Comment ID 0166-A2.001.034 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

08/04/2015 05:01 PM EDT 2-1237
 
Chapter 2 - Comment Documents Variances 

[Copied regulatory text and made no suggested edits.] 

(c) Implementing variances in NPDES permits: Consistent with paragraph (a)(2)(ii) of this section, a WQS variance 

serves as the basis of a water quality-based effluent limit included in a NPDES permit for the period the variance is in 

effect. Any limitations required to implement the WQS variance shall be included as conditions of the NPDES permit for 

the permittee(s) subject to the WQS variance. 

Response 

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

8.h 

8.h: Section A 

Comment ID 0176-A2.001.014 

Author Name: Lazarus Jay
 

Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM)
 

DPNM supports appropriate, consistent, and effective implementation of all variances. 

Response 

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

8.h 

8.h: Section A 

Comment ID 0189-A1.001.028 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

Implementing variance conditions 

This section states that variance conditions should be made NPDES permit conditions under the proposed rule at 

131.14(c). The Bands agree. 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.h 

8.h: Section A 

Comment ID 0195-A1.001.029 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

Implementing variance conditions 

This section states that variance conditions should be made NPDES permit conditions under the proposed rule at 

131.14(c). The NTWC agrees. 

Response 

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

8.h 

8.h: Section A 

Comment ID 0207-A1.001.045 

Author Name: Bodine Susan
 

Organization: American Farm Bureau Federation et al.
 

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

(c) Implementing variances in NPDES permits: Consistent with paragraph (a)(2)(ii) of this section, a WQS variance 

serves as the basis of a water quality-based effluent limit included in a NPDES permit for the period the variance is in 

effect. Any [begin new text] effluent [end new text] limitations required to implement the WQS variance shall be included 

in the NPDES permit for the permittee(s) subject to the WQS variance. 

Response 

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

8.h 

8.h: Section A 

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Chapter 2 - Comment Documents Variances 

Comment ID 0230-A1.001.028 

Author Name: Ettinger Albert
 

Organization: One of the counsel for the Environmental Law and Policy Center et al.
 

Implementing variance conditions (78 FR at 54336)
 

This section states that variance conditions should be made NPDES permit conditions under the proposed rule at
 

131.14(c). We agree.
 

Response 

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

8.h 

8.h: Section A 

Comment ID 0231-A2.001.023 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

o s. 131.14(c), the discussion of implementation of variances in NPDES permits leaves more questions than answers, 

and does not clarify this aspect of variances beyond that already in place in various states. 

Response 

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

8.h 

8.h: Section B 

8.g.iii 

Comment ID 0236-A2.001.035 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

Implementing Variances 

WDNR supports the following clarifications: 

08/04/2015 05:01 PM EDT 2-1240
 
Chapter 2 - Comment Documents Variances 

• Any activities required to implement the variance shall be included as conditions of the NPDES permit for the 

permittee(s) subject to the variance. 

Recommended change: 

• WDNR requests clarification regarding variance conditions to be included in NPDES permits. It is often the case that 

facilities do not know how source reduction will occur at the time of permit reissuance. Facilities are comfortable listing 

sources they will investigate, but follow-up action is dependent on the identified source of the pollutant. Guidance on 

developing PMPs would be helpful. 

Response 

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

8.h 

8.h: Section A 

8.h: Section B 

8.h: Section C 

Comment ID 0252-A2.001.023 

Author Name: Fry Eric 

Organization: Peabody Energy 

o s. 131.14(b)(3), review of BMPs and NPS should not be included in the rule, as this is outside EPA's CWA authority. 

Also, such review would be complicated to assess or control as part of the WQS variance process. Furthermore, using 

the following terms or phrases in the language of the proposed regulation is unnecessarily restrictive and would 

eliminate all of the States' discretionary authority in approving variances: ""must identify," "any cost-effective," and 

"could be implemented." 

o s. 131.14(c), the discussion of implementation of variances in NPDES permits leaves more questions than answers, 

and does not clarify this aspect of variances beyond that already in place in various states. 

Response 

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

8.h 

8.h: Section B 

8.h: Section C 

8.h: Section D 

8.g.v 

08/04/2015 05:01 PM EDT 2-1241
 
Chapter 2 - Comment Documents Variances 

Comment ID 0268-A2.001.041 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

Implementing Variances 

We agree that all specific actions necessary to implement the variance must be enforceable requirements of NPDES 

permits. The problem is that EPA has not established that variances must include any actions or conditions. Without a 

requirement for there to be conditions, yet other requirements that conditions be enforceable, and a requirement that 

conditions have been met in order to merit a renewal of a variance, EPA's assurances of water quality improvements 

ring hollow. 

Response 

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

8.h 

8.h: Section C 

Comment ID 0268-A2.001.060 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

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

(c) Implementing variances in NPDES permits: Consistent with paragraph (a)(2)(ii) of this section, a WQS variance 

serves as the basis of a water quality-based effluent limit included in a NPDES permit for the period the variance is in 

effect. Any limitations required to implement the WQS variance shall be included as conditions of the NPDES permit for 

the permittee(s) subject to the WQS variance. [begin new text] Any BMPs identified in paragraph (b)(3) of this section 

that are within the scope of the permittee's authority shall be included as conditions of its NPDES permits. [end new 

text] 

Response 

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

8.h 

8.h: Section C 

08/04/2015 05:01 PM EDT 2-1242
 
8.g.v 

Chapter 2 - Comment Documents Variances 

Comment ID 0271-A1.001.017 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

17. Addition of paragraph (c) to § 131.14. The Pueblo of Sandia has reviewed the proposed addition and agrees with 

the proposed language. 

Response 

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

8.h 

8.h: Section A 

Comment ID 0283-A1.001.025 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

Similarly, it is not clear why variances would need to be included as part of an NPDES permit if the variance was solely 

related to non-point source discharges or other reasons unrelated to point source discharges. These additional interim 

requirements should be removed and the NPDES permit requirements should just be required to be consistent with the 

variance while it is in place. 

Response 

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

8.h 

8.h: Section D 

8.I - VAR - RENEWAL 

Comment ID 0151-A1.001.011 

Author Name: Tate Michael 

08/04/2015 05:01 PM EDT 2-1243
 
Chapter 2 - Comment Documents Variances 

Organization: Kansas Department of Health and Environment 

Variance Renewal 

The original premise of a variance was it granted time for either new technologies to come online or for the permittee to 

accumulate the necessary capital to invest in the appropriate upgrades in treatment. That purpose remains valid, but 

new water quality issues have since emerged that will be achieved only in the long term, longer than the proposed 10 

year term for variances. Nutrients, legacy pollutants such as PCBs, or multimedia impairments such as mercury are 

examples where attainment of effluent limits tied to stringent criteria will not occur in the next ten years. In Kansas, we 

believe that the lagoon systems referenced above will have difficulty with the new ammonia criteria and that resolution 

of those issues will not be forthcoming within two permit cycles. Renewal is almost the default reality for variances 

covering these types of pollutants and the proposed rule should ensure that a streamlined renewal process can be 

accommodated for these situations. On a side note, because of the high probability of consistent renewal over time, the 

terminology of a variance "expiring" is problematic. Alternative language such as that suggested by ACWA ("length of 

term") would be more accurate. 

Response 

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

8.i 

8.i: Section A 

Comment ID 0153-A2.001.020 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

E. WQS variances renewals. 

EPA also proposes at section 131.14(d) to allow renewal of variances so long as the state meets the requirements of 

section 131.14. (78 Fed. Reg. 54545, col. 2.). The State Water Board supports the proposed requirements for renewing 

a variance. However, for the same reasons discussed above, the renewal should not be treated as a standards action 

except to the extent the extension requires modification of an existing variance policy. 

Response 

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

8.i 

8.i: Section B 

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Chapter 2 - Comment Documents Variances 

Comment ID 0158-A1.001.035 

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.] 

(d) WQS variance renewals: [begin new text] The State must document whether and to what extent BMPs have been 

implemented to address the pollutant(s) subject to the WQS variance and the water quality progress achieved during 

the WQS variance period. [end new text] [begin strikeout] EPA may approve a WQS variance renewal if the State 

meets the requirements of this section and provides documentation of the actions taken to meet the requirements of the 

previous WQS variance. For a waterbody WQS variance renewal, the state must also provide documentation of 

whether and to what extent BMPs have been implemented to address the pollutant(s) subject to the WQS variance and 

the water quality progress achieved during the WQS variance period. Renewal of a WQS variance may be disapproved 

if the applicant did not comply with the conditions of the original WQS variance, or otherwise does not meet the 

requirements of this section. [end strikeout] 

Response 

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

8.i 

8.i: Section C 

8.f.i 

Comment ID 0161-A2.001.010 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

8. §131.14(d) WQS variance renewals states "For a waterbody WQS variance renewal, the state must also provide 

documentation of whether and to what extent BMPs have been implemented to address the pollutant(s) subject to the 

WQS variance and the water quality progress achieved during the WQS variance period." 

• Nonpoint discharges do not currently require a permit pursuant to these federal provision or Iowa law. States may 

adopt regulatory programs to address nonpoint sources of pollution. Unless Iowa imposes a regulatory framework upon 

nonpoint sources of water pollution there is no mechanism available to require or verify the nonpoint best management 

practices referenced in the proposed rule and therefore such review cannot occur. 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.i 

8.i: Section D 

8.g.v 

Comment ID 0166-A2.001.035 

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.] 

(d) WQS variance renewals: [begin new text] The State must document whether and to what extent BMPs have been 

implemented to address the pollutant(s) subject to the WQS variance and the water quality progress achieved during 

the WQS variance period. [end new text] [begin strikeout] EPA may approve a WQS variance renewal if the State 

meets the requirements of this section and provides documentation of the actions taken to meet the requirements of the 

previous WQS variance. For a waterbody WQS variance renewal, the state must also provide documentation of 

whether and to what extent BMPs have been implemented to address the pollutant(s) subject to the WQS variance and 

the water quality progress achieved during the WQS variance period. Renewal of a WQS variance may be disapproved 

if the applicant did not comply with the conditions of the original WQS variance, or otherwise does not meet the 

requirements of this section. [end strikeout] 

Response 

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

8.i 

8.i: Section C 

Comment ID 0175-A1.001.029 

Author Name: Canton Steven 

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

Section 131.14(d) describes variance renewals. The preamble states the renewal of a variance may be an appropriate 

option if "...the applicant complied with the conditions of the original variance (e.g., feasible progress has been made), 

but the designated use and criterion remain unattainable..." 

j. How would ‘feasible progress' be defined, and would progress be determined by the states or EPA? Would ‘feasible 

progress' have to include NPS controls, as implied in the rule? If progress was unable to be achieved due to conditions 

beyond the reasonable control of the permittee - such as technological, regulatory, or other limitations - would a 

08/04/2015 05:01 PM EDT 2-1246
 
Chapter 2 - Comment Documents Variances 

discharger lose the variance? 

Response 

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

8.i 

8.i: Section E 

Comment ID 0180-A2.001.019 

Author Name: Hobson Chris 

Organization: Southern Company 

First, recognizing that legitimate factors may prevent EPA or a state from acting on a renewal application before the 

expiration of the original variance term, we recommend that EPA add an administrative continuance mechanism similar 

to the one for expiring, administratively continued NPDES permits under 40 CFR §122.6. As long as a renewal 

application is timely and complete, then the discharger should continue to enjoy the protections of the variance pending 

agency action on the renewal application. 

Response 

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

8.i 

8.i: Section F 

8.g.iii 

08/04/2015 05:01 PM EDT 2-1247
 
Chapter 2 - Comment Documents Variances 

Comment ID 0182-A2.001.012 

Author Name: Hahn Martha 

Organization: The Colorado Wastewater Utility Council 

Water Quality Variance Renewals - § 131.14(d): This section states, in part that "[f]or a waterbody WQS variance 

renewal, the state must also provide documentation of whether and to what extent BMPs have been implemented to 

address the pollutant(s) subject to the WQS variance and the water quality progress achieved during the WQS variance 

period." 

This requirement is not appropriate for the following reasons: (1) such activities are more applicable to a TMDL process; 

(2) regulated point sources generally do not have the authority to implement BMPS on property belonging to others; and 

(3) there is likely to be uncertainty about the attainability of the underlying water quality standards. 

As such, we believe specific variance implementation and renewal requirements, if any, should be left to individual 

states to determine. 

Response 

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

8.i 

8.i: Section D 

8.g.v 

Comment ID 0186-A1.001.012 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

• API supports the proposed provision that allows renewal of WQS variances upon demonstration that the condition(s) 

preventing full attainment of the WQS continue to be applicable. 

Response 

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

8.i 

8.i: Section G 

Comment ID 0186-A1.001.028 

08/04/2015 05:01 PM EDT 2-1248
 
Chapter 2 - Comment Documents Variances 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

API supports the proposed provision that allows renewal of WQS variances upon demonstration that the condition(s) 

preventing full attainment of the WQS continue to be applicable. 

The proposed rule at 40 CFR 131.14(d) provides for renewal of a WQS variance if a state has met the requirements of 

the preceding variance and provides documentation of the actions taken to meet the requirements. EPA has indicated 

in the preamble to the proposed rule that it understands that it may take many years to achieve applicable WQS in 

some water bodies and indeed, it may be impossible to predict when the WQS will be achieved but that feasible 

progress toward the objective may possible (78 Fed. Reg. 54532). API agrees with EPA's assessment and strongly 

supports the WQS variance renewal provision that is proposed. 

EPA has also stated that it would approve WQS variances lasting 10 years, with the ability to renew the variance if a 

state demonstrates that the basis for the variance remains applicable (78 Fed. Reg. 54534). API supports this proposal 

because, for reasons identified earlier, there will be WQS for nutrients, mercury, and other constituents in some 

watersheds that cannot be achieved in the absence of major technology breakthroughs or changes in socio-economic 

conditions. 

Response 

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

8.i 

8.i: Section G 

Comment ID 0188-A2.001.010 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

8. §131.14(d) WQS variance renewals states "For a waterbody WQS variance renewal, the state must also provide 

documentation of whether and to what extent BMPs have been implemented to address the pollutant(s) subject to the 

WQS variance and the water quality progress achieved during the WQS variance period." 

• Nonpoint discharges do not currently require a permit pursuant to these federal provision or Iowa law. States may 

adopt regulatory programs to address nonpoint sources of pollution. Unless Iowa imposes a regulatory framework upon 

nonpoint sources of water pollution there is no mechanism available to require or verify the nonpoint best management 

practices referenced in the proposed rule and therefore such review cannot occur. 

Response 

08/04/2015 05:01 PM EDT 2-1249
 
Chapter 2 - Comment Documents Variances 

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

8.i 

8.i: Section D 

8.g.v 

Comment ID 0189-A1.001.029 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

Variances - Renewals 

Proposed 131.14(d) allows for renewals. The Bands believe there are very few legitimate circumstances under which a 

variance should be renewed. There are far too many examples whereby permitted facilities receive approvals for 

multiple variance renewals, spanning decades of noncompliance, essentially resulting in unpromulgated site-specific 

WQS that are not and never will be protective of water resources. 

Variances are WQS in their own right and therefore must be approved by EPA. Variances must also be reviewed every 

three years in the required triennial review, and the state must report to EPA on whether a variance is being retained 

and must justify its retention. 

Response 

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

8.i 

8.i: Section H 

8.b 

8.d 

8.f.i 

Comment ID 0193-A2.001.010 

Author Name: Biggs Barbara 

Organization: Metro Wastewater Reclamation District 

Water Quality Variance Renewals – § 131.14(d): This section states, in part, that "[f]or a waterbody WQS variance 

renewal, the state must also provide documentation of whether and to what extent BMPs have been implemented to 

address the pollutant(s) subject to the WQS variance and the water quality progress achieved during the WQS variance 

08/04/2015 05:01 PM EDT 2-1250
 
Chapter 2 - Comment Documents Variances 

period." 

This requirement is not appropriate for the following reasons: (1) such activities are more applicable to a TMDL process; 

(2) regulated point sources generally do not have the authority to implement BMPS on property belonging to others; and 

(3) there is likely to be uncertainty about the attainability of the underlying water quality standards. 

As such, we believe specific variance implementation and renewal requirements, if any, should be left to individual 

states to determine. 

Response 

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

8.i 

8.i: Section D 

Comment ID 0194-A1.001.020 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

2. Other proposed subsections that likewise seem to add to or significantly amend existing requirements in ways that go 

beyond existing law or understandings, with no apparent purpose other than to add complexity and burdens, include: 

• Requiring that the state provide documentation as to the extent to which BMPs have been imposed on nonpoint 

sources in the area as a prerequisite to renewal of variances (131.14(d)). (Same concern.) 

Response 

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

8.i 

8.i: Section I 

Comment ID 0195-A1.001.030 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

Variances - Renewals 

08/04/2015 05:01 PM EDT 2-1251
 
Chapter 2 - Comment Documents Variances 

Proposed 131.14(d) allows for renewals. The NTWC believes there are few legitimate circumstances under which a 

variance should be renewed. There are far too many examples in certain regions and within certain regulated sectors 

whereby the permitted facilities receive approvals for multiple variance renewals, spanning decades of noncompliance 

and essentially resulting in unpromulgated site-specific WQS that are not protective of water resources. 

Variances are WQS in their own right and therefore must be approved by EPA. Variances must also be reviewed every 

three years in the required triennial review, and the state must report to EPA on whether a variance is being retained 

and must justify its retention. 

Response 

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

8.i 

8.i: Section H 

Comment ID 0198-A1.001.011 

Author Name: Card Bethany 

Organization: Massachusetts Department of Environmental Protection 

EPA's proposed language does provide that WQS variances adopted after the effective date of the final rule must be 

consistent with the new requirements. It is important for the rule also to explain how the new requirements would apply 

to renewals of variances that initially were issued prior to the effective date of the rules. In this regard, the rule clearly 

should state that such renewals similarly would not be subject to the new requirements. In light of how far down the 

road MassDEP, MWRA and EPA Region 1 are with the MWRA variance program, to change the applicable 

requirements now would be counterproductive at best. MassDEP, accordingly, at minimum urges EPA to exempt such 

renewals from the new requirements. 

Response 

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

8.i 

8.i: Section J 

Comment ID 0198-A1.001.012 

Author Name: Card Bethany 

Organization: Massachusetts Department of Environmental Protection 

08/04/2015 05:01 PM EDT 2-1252
 
Chapter 2 - Comment Documents Variances 

As mentioned, the proposed rule allows for variance renewals. But how would the renewal provision dovetail with the 

ten year variance limitation? Do the provisions, read together, mean that a ten year variance may be renewed for 

another ten years or would the total duration of the initial variance, combined with any renewals, be limited to ten years? 

The rules must be clearer relative to such important issues. 

Response 

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

8.i 

8.i: Section A 

8.g.iii 

Comment ID 0203-A1.001.021 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

Accordingly, UWAG supports EPA's proposal to allow variances, even if only up to 10 years, and to allow them to be 

renewed when they expire. 

Response 

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

8.i 

8.i: Section G 

8.g.iii 

Comment ID 0207-A1.001.046 

Author Name: Bodine Susan
 

Organization: American Farm Bureau Federation et al.
 

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

(d) WQS variance renewals: [begin new text] A variance may be renewed subject to the demonstration under (b)(2) 

above. [end new text] 

Response 

08/04/2015 05:01 PM EDT 2-1253
 
Chapter 2 - Comment Documents Variances 

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

8.i 

8.i: Section C 

Comment ID 0218-A1.001.007 

Author Name: Elardo Pam 

Organization: King County Department of Natural Resources and Parks 

• Affirm that variances can be renewed multiple times after appropriate reevaluation 

Response 

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

8.i 

8.i: Section G 

Comment ID 0218-A1.001.015 

Author Name: Elardo Pam 

Organization: King County Department of Natural Resources and Parks 

King County requests the EPA to affirm that variances can be renewed multiple times after appropriate re-evaluation. 

Again, it is important for the EPA to acknowledge some ubiquitous contamination issues (e.g. mercury, arsenic, PCBs, 

etc.) present an unprecedented challenge in many water bodies. Therefore, while permittees undertake their part in 

reducing their source contributions to a water body, there are legacy loads of these chemicals, requiring efforts over 

and above individual Permittees' actions. Consequently, the periods required for water body-specific or dischargerspecific variances are going to be longer than 10 years. We advocate for the EPA to affirmatively acknowledge that 

variances can be renewed multiple times after appropriate re-evaluation. It may not be unreasonable to expect that it 

could take 40 or more years before an urban water body is achieving its water quality goal. It also would be appropriate 

for a variance, implemented through a permit, to have an end date coincident with the expiration of that permit rather 

than a specific variance term. 

Response 

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

8.i 

8.i: Section A 

08/04/2015 05:01 PM EDT 2-1254
 
Chapter 2 - Comment Documents Variances 

8.i: Section F 

8.g.iii 

Comment ID 0230-A1.001.029 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

Renewals (78 FR at 54337)
 

The proposed language in 131.14(d) allows variances to be renewed. We hope that in practice there will be few
 

renewals but recognize that there may be circumstances in which they are necessary. The renewal process must
 

explicitly include a requirement for a clear showing of need for the renewal and a public review process. 

Response 

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

8.i 

8.i: Section H 

8.b 

8.d 

8.f.i 

Comment ID 0231-A2.001.024 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

o s. 131.14(d), EPA should clarify that any conditions in a WQS variance be limited to the alternative criteria a permittee 

must meet. Further, the proposed rule's preamble states the renewal of a variance may be an appropriate option if 

"...the applicant complied with the conditions of the original variance (e.g., feasible progress has been made), but the 

designated use and criterion remain unattainable..." It is not clear how "feasible progress" would be defined. If there 

were technological or regulatory constraints, could a discharger lose the variance? 

Response 

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

8.i 

8.i: Section E 

08/04/2015 05:01 PM EDT 2-1255
 
Chapter 2 - Comment Documents Variances 

Comment ID 0234-A2.001.029 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

Fourth, EPA also proposes to require a State to specify the interim conditions that must be met during the term of the 

variance. A variance renewal will be denied "if the applicant did not comply with the conditions of the original WQS 

variance." Proposed §131.14(d). We recommend that EPA clarify that any conditions in a WQS variance be limited to 

the alternative criteria that a permittee must meet. 

Response 

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

8.i 

8.i: Section E 

Comment ID 0236-A2.001.036 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

How to Renew a Variance 

WDNR supports the following clarifications: 

• For renewal of a waterbody variance, the state or tribe must also include documentation of whether, and to what 

extent, cost-effective and reasonable BMPs have been implemented to address the pollutant(s) subject to the variance 

and the water quality progress achieved during the variance period. 

• If a variance term will expire and the applicant complied with the conditions of the original variance (e.g., feasible 

progress has been made), but the designated use and criterion remain unattainable, then renewal of a variance may be 

an appropriate option for the state or tribe. 

Recommended change: 

• Section F.2.d. states that "The EPA recognizes that circumstances out of the permittee's, state's, or tribe's control may 

impact the ability to meet the specific conditions and requirements of the variance, even if all required actions to 

implement the variance were completed. The proposed regulatory language allows the EPA to consider these factors 

when determining whether to grant a WQS variance renewal." WDNR would appreciate clarification, or examples, of 

when circumstances out of the permittee's, state's, or tribe's control would lead to denial of a variance. 

08/04/2015 05:01 PM EDT 2-1256
 
Chapter 2 - Comment Documents Variances 

Response 

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

8.i 

8.i: Section E 

Comment ID 0240-A2.001.030 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

Section 131.14(d) describes variance renewals. The preamble states the renewal of a variance may be an appropriate 

option if "...the applicant complied with the conditions of the original variance (e.g., feasible progress has been made), 

but the designated use and criterion remain unattainable..." 

j. How would 'feasible progress' be defined, and would progress be determined by the states or EPA? Would 'feasible 

progress' have to include NPS controls, as implied in the rule? If progress was unable to be achieved due to conditions 

beyond the reasonable control of the permittee – such as technological, regulatory, or other limitations – would a 

discharger lose the variance? 

Response 

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

8.i 

8.i: Section E 

Comment ID 0252-A2.001.024 

Author Name: Fry Eric 

Organization: Peabody Energy 

o s. 131.14(d), EPA should clarify that any conditions in a WQS variance be limited to the alternative criteria a 

permittee must meet. Further, the proposed rule's preamble states the renewal of a variance may be an appropriate 

option if "...the applicant complied with the conditions of the original variance (e.g., feasible progress has been made), 

but the designated use and criterion remain unattainable..." It is not clear how "feasible progress" would be defined. If 

there were technological or regulatory constraints, could a discharger lose the variance? 

Response 

08/04/2015 05:01 PM EDT 2-1257
 
Chapter 2 - Comment Documents Variances 

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

8.i 

8.i: Section E 

Comment ID 0262-A2.001.017 

Author Name: Rawlings Laurent 

Organization: Home Builders Association of Kentucky 

Also, under this proposal, it is unclear whether the renewal of a variance that lasted ten years would be allowable. 

Response 

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

8.i 

8.i: Section A 

Comment ID 0264-A2.001.018 

Author Name: Chard-McClary Shellie 

Organization: Association of Clean Water Administrators 

2) 10 year variance term necessitates streamlined renewal process 

The original concept of variances is that they are for a short period of time while new technology is developed or a 

permittee accumulates enough capital to be able to implement appropriate technology. While these types of variances 

still have utility, new issues have emerged that will necessarily require longer term variances - longer than the 10 years 

in the proposed rule. Examples include restoration variances, TMDLs for persistent pollutants like PCBs or mercury, or 

strict nutrient criteria that drive extremely low permit limits for small and low income communities. Therefore, a 

streamlined renewal process needs to be embraced in the final rule if the term is limited to 10 years. See also, 4, below 

regarding 10 year variance term. [0264-A2.001.019] 

Response 

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

8.i 

8.i: Section A 

08/04/2015 05:01 PM EDT 2-1258
 
Chapter 2 - Comment Documents Variances 

Comment ID 0268-A2.001.042 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

How to Renew a Variance 

We support EPA's proposal that renewal of a variance requires the same documentation as a first variance along with 

demonstration that the steps taken to meet the requirements of the first variance were taken. The problem is that EPA 

says a state "must also include documentation of whether and to what extent cost-effective and reasonable BMPs have 

been implemented[.]" Id. at 53536. As stated above, the ability to measure whether and to what extent BMPs have been 

implemented depends greatly on the clarity of the BMPs themselves. If they are not easily documented the entire 

process will achieve nothing but more of what we already get: lots of pages of documents claiming that things are being 

done. Moreover, without requiring the implementation of BMPs, there is no pressure on the state save possible 

embarrassment, if no BMPs are actually implemented by the time the variance is up for renewal. There is no incentive 

for point sources to seek better nonpoint source control from state legislative bodies because EPA's proposed rules 

require nobody to do anything. There is no incentive for point and nonpoint sources to work together. There is no 

incentive for state legislatures to provide point sources with a more level playing field by increasing nonpoint source 

controls both through mandatory requirements and inducements. There is no incentive for state agencies to do a better 

job promoting voluntary or requiring mandatory BMPs. The variance is simply a situation in which the point sources get 

off the hook and the nonpoint sources stay off the hook. If EPA is going to dabble in this area of encouraging urgently 

needed nonpoint source controls, it should set up the variances to succeed, not to fail. 

While regulatory authority varies from one state to another, many state agencies that issue NPDES permits also have 

some authority over nonpoint sources. EPA has set the bar at the lowest common denominator, as if state permitting 

agencies have no nonpoint source authority. As such, no permitting agency will be held to implementing BMPs because 

implementing BMPs is never a required "condition" of variances according to EPA's rules. The BMPs are more like 

window decoration and the states and EPA will treat them as if they are window shopping. 

Response 

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

8.i 

8.i: Section K 

8.g.v 

Comment ID 0268-A2.001.061 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

08/04/2015 05:01 PM EDT 2-1259
 
Chapter 2 - Comment Documents Variances 

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

(d) WQS variance renewals: EPA may approve a WQS variance renewal if the State meets the requirements of this 

section and provides documentation of the actions taken to meet the requirements of the previous WQS variance,[begin 

new text] including [end new text] [begin strikeout] . For a waterbody WQS variance renewal, the state must also 

provide [end strikeout] documentation of whether and to what extent BMPs [begin new text] identified in paragraph 

(b)(3) [end new text] have been implemented to address the pollutant(s) subject to the WQS variance and the water 

quality progress achieved during the WQS variance period. Renewal of a WQS variance may be disapproved if the 

applicant [begin new text] or state [end new text] did not comply with the conditions of the original WQS variance, or 

otherwise does not meet the requirements of this section. 

Response 

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

8.i 

8.i: Section K 

Comment ID 0271-A1.001.018 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

18. Addition of paragraph (d) to § 131.14. The Pueblo of Sandia has reviewed the proposed addition and agrees with 

the proposed language. 

19. Addition of paragraph (d) to § 131.14. The Pueblo of Sandia has reviewed the proposed addition. The Pueblo of 

Sandia is of the opinion that a maximum single variance term of no more than 10 years, as proposed, should also be 

the only term. There should be no extensions. If a variance cannot be corrected to comply with water quality conditions 

within 10 years other options need to be sought. 

Response 

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

8.i 

8.i: Section H 

8.I.I - VAR RENEW - WATER BODY 

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

08/04/2015 05:01 PM EDT 2-1260
 
Chapter 2 - Comment Documents Variances 

8.J - VAR - EPA DUS 

Comment ID 0151-A1.001.016 

Author Name: Tate Michael 

Organization: Kansas Department of Health and Environment 

Kansas-Specific Variance Procedures 

EPA proposes to delete the variance procedures attached to the federally promulgated uses on Kansas waters in 40 

CFR 131.34(c) so that any variances on those waters are consistent with the proposed rulemaking. Kansas suggests 

EPA instead begin to initiate the withdrawal of that promulgated regulation since the Use Attainability Analyses are 

complete, appropriate adjustments to aquatic life and recreation uses have been made to the Kansas Surface Water 

Register for all but a few waters, their uses have been adopted into the Kansas Water Quality Standards, and the 

standards are approved by USEPA Region 7. Therefore, the proposed rulemaking presents a fine opportunity to retire 

the existing promulgation as opposed to establishing a new variance procedure for waters that have since been 

addressed by Kansas and approved by EPA in response to the 2003 rulemaking by EPA. 

Response 

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

8.j 

Comment ID 0236-A2.001.037 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

Variances for the EPA-Promulgated Designated Uses 

Wisconsin is not impacted by this subsection. 

Response 

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

8.j 

08/04/2015 05:01 PM EDT 2-1261
 
Chapter 2 - Comment Documents Variances 

Comment ID 0271-A1.001.019 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

20. Deletion of language in § 131.34 (c) and § 131.40 (c). The Pueblo of Sandia has reviewed the proposed addition 

and has no comment. 

Response 

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

8.j 

8.K - VAR - LINKAGES W/ GLI 

Comment ID 0177-A2.001.010 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

EPA's proposal will create overlapping requirements in the Great Lakes. NYSDEC recommends that EPA should 

harmonize these regulations, including making changes to 40 CFR Part 132, to eliminate inconsistent requirements. For 

example, New York recommends that the 5 year maximum timeframe in 40 CFR 132 be revised to 10 years consistent 

with EPA's 40 CFR 131 proposal. 

Response 

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

8.k 

8.k: Section A 

8.k: Section B 

8.g.iii 

Comment ID 0268-A2.001.031 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

08/04/2015 05:01 PM EDT 2-1262
 
Chapter 2 - Comment Documents Variances 

EPA runs the risk of undermining the entire water quality-based aspect of the Clean Water Act in encouraging the use 

of waterbody variances. EPA's preamble starts by citing to the Great Lakes Initiative (GLI) but it fails to either explain 

the context of the GLI or to replicate that context in its proposed rules. Where EPA has previously allowed longer and 

more broad variances in the GLI, EPA also explicitly required a three year review, consistent with 40 C.F.R. § 

131.20(a). 40 C.F.R. § 131.20(a); GLI Pt. 132, App F, Procedure 2 §B; see also GLI Supplementary Information 

Document ("SID"), EPA-820-B-95-001, March 1995 Sec. VIII.B.2.c. In addition, EPA required a re-opener clause in 

associated NPDES permits to ensure that the triennial review process was meaningful. GLI Pt. 132, App F, Procedure 2 

§F.4, GLI SID Sec. VIII.B.2.c. And EPA ensured that a renewal of a variance was subject to all the same findings and 

procedures as the original variance. GLI Pt. 132, App F, Procedure 2 §H. The GLI has many other protections built in to 

prevent abuse of variances. The GLI contains a requirement that the permittee characterize the extent of any increased 

risk to human health and the environment from granting the variance compared to the underlying water quality 

standards. GLI Pt. 132, App F, Procedure 2 §C.2.b.. It contains a requirement that the State conclude that such an 

increased risk is consistent with protection of public health, safety, and welfare. Id. It requires reasonable progress 

towards attaining standards. GLI Pt. 132, App F, Procedure 2 §F.2. It makes an explicit reference to meeting the 

antidegradation policy. GLI Pt. 132, App F, Procedure 2 §C.2.a. And, finally, it contains a clear prohibition against the 

use of variances for new or recommencing dischargers. GLI Pt. 132, App F, Procedure 2 §A.1. In these ways, the GLI 

rules ensure that more, rather than less, information is the basis upon which any extensions to variances will be 

allowed. The proposed rules for longer and broader variances now set out by EPA do not included these protections 

and contain nothing to ensure that variances lead to any reductions in pollution over their 10-year term. 

In addition, the context of the GLI is one of more stringent criteria and rules. For example, under the GLI, point sources 

face a host of restrictions that are a backdrop to the GLI variance procedures. The GLI limits the expected load 

reductions from nonpoint sources that states can assume in issuing TMDLs. The GLI requires that these nonpoint load 

allocations be set at existing pollutant loadings if changes, i.e. reductions, are not expected to occur. GLI Pt. 132, App 

F, Procedure 3 §B.3.b.i & ii. In other words, TMDLs issued under the GLI are not allowed to factor unrealistic and 

unexpected pollutant load reductions from nonpoint sources, thereby increasing expected load reductions from point 

sources. In contrast, TMDLs issued in other states routinely assume significant and unwarranted reductions by nonpoint 

sources in establishing waste load allocations, reductions that have no basis in reality. Similarly, TMDLs in GLI states 

must account for accumulation of toxics in sediments, GLI Pt. 132, App F, Procedure 3 §B.7, and there are severe 

restrictions on mixing zones for bioaccumulative chemicals of concern, GLI Pt. 132, App F, Procedure 3 §C.1, among 

other stringent provisions that apply to NPDES dischargers. In EPA's proposed rules for variances across the country, 

none of these protections exist. 

Response 

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

8.k 

8.k: Section A 

8.k: Section B 

7.k 

08/04/2015 05:01 PM EDT 2-1263
 

8.f.i 
Chapter 2 - Comment Documents Variances 

Comment ID 0269-A2.001.010 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

EPA's proposal will create overlapping requirements in the Great Lakes. NYSDEC recommends that EPA should 

harmonize these regulations, including making changes to 40 CFR Part 132, to eliminate inconsistent requirements. For 

example, New York recommends that the 5 year maximum timeframe in 40 CFR 132 be revised to 10 years consistent 

with EPA's 40 CFR 131 proposal. 

Response 

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

8.k 

8.k: Section A 

8.k: Section B 

8.g.iii 

8.L - VAR - OTHER GENERAL 

Comment ID 0123-A1.001.021 

Author Name: Chin Ryan 

Organization: NA 

Further, I suggest the EPA establish a rebuttal presumption that a variance is no longer justified upon the expiration of 

the first period granting the variance, to ensure that during the time period reasonable (not feasible) progress is being 

made toward the designated use. The presumption can be rebutted to request an extension only if it satisfies all of the 

three steps above. Specifically, to rebut the presumption, it has to be established that conditions have not changed so 

that the designated use or criterion are now attainable (and not due to the fault of the party being granted the variance), 

no new or additional information is available to indicate that the designated use and criterion are not attainable in the 

future, and that reasonable progress is being made toward the designated use and criterion and that additional time is 

needed to make further reasonable progress. 

Response 

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

8.l 

8.l: Section A 

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Chapter 2 - Comment Documents Variances 

8.g.iii 

Comment ID 0133-A2.001.015 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

c. LDEQ would be amenable to utilizing the variance route if EPA would provide guidance on what types of requests 

would be granted, what information would be required, and if EPA were to offer some assurance that the process would 

be reviewed differently than it has been in the past. 

Response 

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

8.l 

8.l: Section B 

Comment ID 0134-A1.001.018 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

Variances 

EPA is proposing to add a new section 131.14 to regulate state adoption and use of variances. We are concerned that 

the proposed regulations will discourage, not encourage variances, contrary to EPA's stated goal. We recommend 

addressing variances with more flexibility than EPA has proposed, and doing so in guidance rather than by regulation, 

to ensure water quality standards implementation decisions are left with States. 

Response 

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

8.l 

8.l: Section C 

8.b 

Comment ID 0145-A2.001.018 

Author Name: Shea III Quinlan 

08/04/2015 05:01 PM EDT 2-1265
 
Chapter 2 - Comment Documents Variances 

Organization: Edison Electric Institute 

Variances 

EPA is proposing to add a new section 131.14 to regulate state adoption and use of variances. We are concerned that 

the proposed regulations will discourage, not encourage variances, contrary to EPA's stated goal. We recommend 

addressing variances with more flexibility than EPA has proposed, and doing so in guidance rather than by regulation, 

to ensure water quality standards implementation decisions are left with States. 

Response 

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

8.l 

8.l: Section C 

8.b 

Comment ID 0149-A2.001.005 

Author Name: Michael Gene 

Organization: City of Pueblo Wastewater Department 

c. Temporary modifications and ambient-based criteria. 

The State of Colorado has been successfully implementing temporary modifications and ambient-based criteria for 

many years. These are two alternatives to variances or permanent use downgrades that were recognized in EPA's 

Advance Notice of Proposed Rulemaking, 63 Fed. Reg. 36742 (July 7, 1998). The Proposed Rule does not include 

clarifications regarding either temporary modifications or ambient-based criteria. Pueblo supports EPA's decision not to 

include temporary modifications or ambientbased criteria, since clarification of these regulatory options is not necessary 

to facilitate their continued use. 

Response 

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

8.l 

8.l: Section C 

8.a 

Comment ID 0153-A2.001.017 

08/04/2015 05:01 PM EDT 2-1266
 
Chapter 2 - Comment Documents Variances 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

ii. Clarify that conditional discharge prohibitions are not variances. 

States may adopt discharge prohibitions and associated exemptions to such discharge prohibitions in a water quality 

control plan which should not be construed as a variance at all. EPA has not previously taken the position that a 

discharge prohibition is equivalent to a water quality criterion of "zero," and should not do so now. For example, 

California law provides for prohibitions or conditional prohibitions of certain discharges. (See, Cal. Wat. Code § 13243.) 

Thus, a water quality control plan may, among other things, prohibit all waste discharges to a specified water body, all 

waste discharges to a specified water body during certain times of the year or under certain conditions, or all discharges 

of specific pollutants unless the discharger meets certain conditions. Such discharge prohibitions are not WQS. The 

WQS include the designated uses and the numeric or narrative criteria to achieve those uses. Discharge prohibitions, 

on the other hand, are implementation tools to achieve the standards. A conditional discharge prohibition is a permitting 

tool that allows the state to specify the discharge conditions that will ensure an authorized discharge meets applicable 

WQS without the need for a variance to allow a limited-term exceedence of such WQS. The preamble accompanying 

the final rule should clarify this point. 

Response 

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

8.l 

8.l: Section C 

Comment ID 0160-A2.001.004 

Author Name: West Jeff 

Organization: Xcel Energy 

1. Variances. 

Xcel Energy appreciates the EPA's intent to reduce barriers to states' use of variances as an alternative to permanent 

use downgrades. However, the promulgation of a rule may unintentionally limit the ability of states to use variances. 

Several states, including the State of Colorado, have recently developed variance guidance, which could be called into 

question or limited by the Proposed Rule. Therefore, instead of promulgating a rule, Xcel Energy believes that the EPA 

should consider providing guidance on the use of variances to preserve flexibility for states to address site-specific 

issues. 

If EPA moves forward with variance provisions in the final rule, Xcel Energy offers several comments on the specific 

variance language included in EPA's Proposed Rule. 

08/04/2015 05:01 PM EDT 2-1267
 
Chapter 2 - Comment Documents Variances 

Response 

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

8.l 

8.l: Section C 

8.a 

8.b 

Comment ID 0160-A2.001.006 

Author Name: West Jeff 

Organization: Xcel Energy 

b. Temporary modifications and ambient-based criteria. 

The State of Colorado has been successfully implementing temporary modifications and ambient-based criteria for 

many years. These are two alternatives to variances or permanent use downgrades that were recognized in EPA's 

Advance Notice of Proposed Rulemaking, 63 Fed. Reg. 36742 (July 7, 1998). The Proposed Rule does not include 

clarifications regarding either temporary modifications or ambient-based criteria. Xcel Energy supports EPA's decision 

not to include temporary modifications or ambient-based criteria, since clarification of these regulatory options is not 

necessary to facilitate their continued use. 

Response 

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

8.l 

8.l: Section C 

8.a 

Comment ID 0161-A2.001.007 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

• An option should be available for States to develop a variance rule and to adopt it into their State rule with EPA 

approval. If the variance rule has been approved by EPA, each specific variance should not then require EPA approval 

as long as the variance rule is followed. 

Response 

08/04/2015 05:01 PM EDT 2-1268
 
Chapter 2 - Comment Documents Variances 

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

8.l 

8.l: Section C 

8.b 

Comment ID 0170-A1.001.004 

Author Name: Faggert Pamela 

Organization: Dominion Resources Services, Inc. 

Water Quality Standard Variances 

The proposed regulatory changes include a new section, Section §131.14, which imposes new requirements on the 

adoption of variances. In general we recommend that variances be addressed in EPA guidance as opposed to 

regulations and therefore suggest that Section §131.14 be removed. 

Response 

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

8.l 

8.l: Section C 

8.b 

8.c 

Comment ID 0170-A1.001.006 

Author Name: Faggert Pamela 

Organization: Dominion Resources Services, Inc. 

However, to the extent that Section 131.14 is included in the proposed revisions, we have specific suggestions. Section 

III.F of the preamble states that "variances described in the EPA's permitting regulation at §§ 122.2 and 125.3" are not 

subject to the proposed rulemaking. Both of the referenced provisions address variances issued in accordance with 

Section 316(a) of the Clean Water Act (CWA), however, clear language is lacking in the preamble or the rule 

addressing these particular variances. We interpret and support this language to exclude thermal variances adopted in 

accordance with Section 316(a) of the CWA from the proposed new variance requirements. We operate under 316(a) 

variances at four of our power generating stations. Thermal variances adopted through Section 316(a) are granted only 

after the successful completion of robust and prescribed demonstrations and are re-evaluated during each permit 

reissuance. Thermal variances are unique variances and should not be included with those that are subject to the 

proposed requirements. We request that language be added to both the preamble and the proposed regulations, 

clarifying that thermal variances issued in accordance with Section 316(a) of the CWA are not subject to the proposed 

08/04/2015 05:01 PM EDT 2-1269
 
Chapter 2 - Comment Documents Variances 

rulemaking regarding variance procedures. 

Response 

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

8.l 

8.l: Section C 

8.c 

Comment ID 0171-A2.001.013 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

Variances 

EPA is now proposing an approach to regulating the use of variances that the agency specifically rejected in its 1983 

rulemaking. [FN7] Variances are currently referenced at 42 C.F.R. § 131.13 as one of several policies generally 

affecting the application and implementation of state water quality standards and which the states may "at their 

discretion" include in their respective standards. 

In 1983 EPA proposed but then eliminated a detailed statement regarding variances in § 131.13, because variances, 

like mixing zones and low flow exemptions, were not "regulatory in nature." As explained in the 1983 preamble: 

Except for a general statement that States may adopt policies affecting the application and implementation of standards 

and that such policies are subject to EPA review and approval, all other elements of proposed Section 131.13 have 

been deleted, including the detailed statement on mixing zones, low flow exemptions and variances. 

Specific subsections on mixing zones, low flow exemptions and variances were deleted because, as the public 

comments suggested, they were not regulatory in nature and therefore were more appropriately addressed in guidance. 

(Emphasis added). 

Directly contrary to EPA's prior characterization of variances as not regulatory in nature, the recently proposed rule 

(although referred to as a regulatory clarification) establishes a complex and highly proscriptive set of regulations 

related to variances while asserting several times in the preamble that the intent of the proposed language is to 

encourage the use of variances. 

[FN7] 48 FR 51400, 1983 WL 121071 (F.R.) 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.l 

8.l: Section C 

2.e 

8.b 

Comment ID 0171-A2.001.015 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

From a brief mention in § 131.13, as a policy, states may include in their standards at their discretion, variances have 

been elevated to full stature as a mandated standard, reviewable under § 303(c), and comparable to a designated use 

change-contrary to longstanding EPA policy to address variances through guidance because they are not regulatory in 

nature. 

Response 

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

8.l 

8.l: Section C 

8.b 

Comment ID 0173-A1.001.013 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

Variances 

EPA is now proposing an approach to regulating the use of variances that the agency specifically rejected in its 1983 

rulemaking. [FN7] Variances are currently referenced at 42 C.F.R. § 131.13 as one of several policies generally 

affecting the application and implementation of state water quality standards and which the states may "at their 

discretion" include in their respective standards. 

In 1983 EPA proposed but then eliminated a detailed statement regarding variances in § 131.13, because variances, 

like mixing zones and low flow exemptions, were not "regulatory in nature." As explained in the 1983 preamble: 

Except for a general statement that States may adopt policies affecting the application and implementation of standards 

and that such policies are subject to EPA review and approval, all other elements of proposed Section 131.13 have 

08/04/2015 05:01 PM EDT 2-1271
 
Chapter 2 - Comment Documents Variances 

been deleted, including the detailed statement on mixing zones, low flow exemptions and variances. 

Specific subsections on mixing zones, low flow exemptions and variances were deleted because, as the public 

comments suggested, they were not regulatory in nature and therefore were more appropriately addressed in guidance. 

(Emphasis added). 

Directly contrary to EPA's prior characterization of variances as not regulatory in nature, the recently proposed rule 

(although referred to as a regulatory clarification) establishes a complex and highly proscriptive set of regulations 

related to variances while asserting several times in the preamble that the intent of the proposed language is to 

encourage the use of variances. 

[FN7] 48 FR 51400, 1983 WL 121071 (F.R.) 

Response 

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

8.l 

8.l: Section C 

2.e 

8.b 

Comment ID 0173-A1.001.015 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

From a brief mention in § 131.13, as a policy, states may include in their standards at their discretion, variances have 

been elevated to full stature as a mandated standard, reviewable under § 303(c), and comparable to a designated use 

change-contrary to longstanding EPA policy to address variances through guidance because they are not regulatory in 

nature. 

Response 

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

8.l 

8.l: Section C 

8.b 

Comment ID 0177-A2.001.009 

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Chapter 2 - Comment Documents Variances 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

(5) WQS Variances 

EPA proposes to add more specificity in regulation regarding variances by addressing variance applicability, submission 

requirements, implementation, duration, and renewal. 

The proposed regulation indicates that "WQS variances are water quality standards subject to EPA review and 

approval". NYSDEC requests clarification of this review and approval process. Will EPA conduct this process as part of 

its review of draft permits? Will the EPA review process differ depending on the pollutant(s), number or character of 

permittees, and/or water body(ies) affected? 

Unlike 40 CFR 132, the proposed changes to 40 CFR 131 do not appear to establish clear responsibilities for individual 

permittees that may wish to obtain a variance. Not establishing such responsibilities, or removing them relative to 40 

CFR 132, may invite casual variance requests from permittees that impose a substantial burden on the states and EPA. 

Generally, NYSDEC supports EPA's proposal to develop a variance regulation. However, NYSDEC supports changes 

to the proposed regulation to allow for New York's variance regulation at 6 NYCRR 702.17. Specifically, instead of a 

variance from water quality standards, New York's regulation provides for a variance from water quality-based effluent 

limitations (WQBELs). If the proposed regulations were to establish variances to WQBELs instead of standards, this 

may result in simpler regulations and implementation. 

Response 

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

8.l 

8.l: Section C 

8.g.iv 

Comment ID 0182-A2.001.004 

Author Name: Hahn Martha 

Organization: The Colorado Wastewater Utility Council 

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

Attainability: The Advanced Notice of Proposed Rulemaking (ANPRM) for the Water Quality Standards Regulation, 63 

Fed. Reg. 36,742 (July 7, 1998), acknowledged that some states (including Colorado) have in place approved water 

quality regulatory tools to address areas "where the problems in a water body are significant and widespread, involving 

08/04/2015 05:01 PM EDT 2-1273
 
Chapter 2 - Comment Documents Variances 

point and nonpoint sources of pollution and their impacts on water quality and habitat, that is waters significantly
 

impaired by multiple sources and not just one or a few point sources" (page 36,760).
 

Two of the tools discussed in the ANPRM include temporary standards (also known as temporary modifications) and
 

ambient-based criteria. Colorado currently has EPA-approved regulatory provisions for each of these tools.
 

Temporary modifications are preferred over a more permanent downgrading of a present classified use where
 

conditions causing water quality problems might be temporary within a twenty year timeframe. [FN1] Temporary
 

modifications have been – and continue to be – useful tools in that they: (1) maintain current water quality conditions
 

while studies are conducted to identify point and nonpoint sources of the pollutant of concern, and (2) provide time for
 

either the State or an interested permittee(s) to collect and assess pertinent water quality data to determine an
 

appropriate and attainable water quality condition for a waterbody, e.g., through development of a Use Attainability
 

Analysis (UAA).
 

In Colorado, ambient quality-based standards may be adopted where the natural or irreversible maninduced ambient
 

water quality levels are higher than those required to protect § 101(a)(2) uses. As such, they are feasibility-based. [FN2
 

]
 

The proposed water quality standards rule is silent on such options, which have a long track record in Colorado of
 

providing needed flexibility to set attainable and defensible uses and associated water quality standards. Although the
 

proposed rule includes much discussion regarding variances as an interim option (discussed in more detail below), we
 

strongly encourage EPA to include preamble language stating that currently approved state regulatory tools will
 

continue to be valid once the proposed rule is finalized.
 

For example, the following language should be added to § C.2 (Designated Uses, Background, page 54522) (additional
 

language is shown as underlined):
 

States and tribes have broad discretion to determine the appropriate level of specificity to use in identifying and defining
 

designated uses, and nothing in this proposal is intended to narrow that discretion. [Begin new text] To that end,
 

existing state regulatory tools that address alternatives to "downgrading" of a designated use, including temporary
 

standards and ambient-based criteria, will continue to be considered part of such discretion. [end new text]
 

[FN1] Section 31.7(3)(a) of Regulation No. 31, The Basic Standards and Methodologies for Surface Water (5 CCR
 

1002-31) sets forth the requirements for granting a temporary modification:
 

The Colorado Water Quality Control Commission may grant a temporary modification if:
 

(i) an existing permitted discharge has a demonstrated or predicted water quality-based effluent limit compliance 

problem, and 

(ii) one of the following is shown to exist: 

(A) there is significant uncertainty regarding the water quality standard necessary to protect current and/or future uses. 

(B) there is significant uncertainty regarding the extent to which existing quality is the result of natural or irreversible 

human-induced conditions (emphasis added). 

[FN2] This provision, found at 31.7(1)(b)(ii) in Regulation No. 31 (5 CCR 1002-31), is similar to the factor found at 40 

CFR 131.10(g)(3): "Human caused conditions or sources of pollution prevent the attainment of the use and cannot be 

remedied or would cause more environmental damage to correct than to leave in place." 

08/04/2015 05:01 PM EDT 2-1274
 
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Response 

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

8.l 

8.l: Section C 

8.a 

8.b 

Comment ID 0183-A1.001.007 

Author Name: Rich Eric 

Organization: Navajo Nation Environmental Protection Agency 

WQS Variances 

Presently the only nationally applicable WQS regulation mentioning variances is in 40 CFR 131.13. This proposes to 

add a new regulatory definition for WQS variances at 40 CFR 131.14. 

NNEPA Water Quality/NPDES Program Comment: 

The proposed USEPA language for variances is already contained in Navajo Nation Surface Water Quality Standards 

Section 208 - Variances. Minor modifications may have to be made to Navajo Nation Surface Water Quality Standards 

Section 208 once the USEPA rules on variances are finalized. 

Response 

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

8.l 

8.l: Section D 

Comment ID 0185-A1.001.012 

Author Name: Poltak Ronald 

Organization: New England Interstate Water Pollution Control Commission 

Variances 

EPA is proposing to add more specificity in regulation regarding variances by addressing variance applicability, 

08/04/2015 05:01 PM EDT 2-1275
 
Chapter 2 - Comment Documents Variances 

submission requirements, implementation, duration, and renewal. First, the NEIWPCC states are requesting that EPA 

provide clarification regarding the state authorization for variances. Specifically, will states need to add authorizing 

language for variances into their state water quality standards? If so, the NEIWPCC states oppose this revision, as this 

measure would add significant complexity to obtaining variances and prevent states from acquiring variances through 

the permitting process. Also, while EPA has expressed that variances are being underutilized, there is some concern on 

the part of the NEIWPCC states that EPA's proposed changes will lead to permittees wanting to over-utilize this 

approach. In these times of strained resources, it may be challenging for states to respond to these increased requests. 

Response 

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

8.l 

8.l: Section C 

8.l: Section E 

8.a 

12.c 

Comment ID 0188-A2.001.007 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

• An option should be available for States to develop a variance rule and to adopt it into their State rule with EPA 

approval. If the variance rule has been approved by EPA, each specific variance should not then require EPA approval 

as long as the variance rule is followed. 

Response 

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

8.l 

8.l: Section C 

8.f.i 

Comment ID 0189-A1.001.027 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

08/04/2015 05:01 PM EDT 2-1276
 
Chapter 2 - Comment Documents Variances 

Additionally, the Bands recommend language ensuring that either the state or the discharger(s) concerned must 

properly fund and promptly undertake the necessary studies and complete them as quickly as possible. 

Response 

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

8.l 

8.l: Section C 

8.e 

Comment ID 0190-A1.001.015 

Author Name: Wagener Fritz 

Organization: NA 

However, nothing gives EPA new authority to mandate that an EPA-approved standard, i.e., designated use and criteria 

that must apply to a water body or a portion of a water body - as specified in the regulatory definition of "water quality 

standard" – can be used for some purposes of the Act, but not others. 

Response 

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

8.l 

8.l: Section C 

8.f.ii 

Comment ID 0193-A2.001.004 

Author Name: Biggs Barbara 

Organization: Metro Wastewater Reclamation District 

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

Attainability: The Advanced Notice of Proposed Rulemaking (ANPRM) for the Water Quality Standards Regulation, 63 

Fed. Reg. 36,742 (July 7, 1998), acknowledged that some states (including Colorado) have in place approved water 

quality regulatory tools to address areas "where the problems in a water body are significant and widespread, involving 

point and nonpoint sources of pollution and their impacts on water quality and habitat, that is waters significantly 

impaired by multiple sources and not just one or a few point sources" (page 36,760). 

08/04/2015 05:01 PM EDT 2-1277
 
Chapter 2 - Comment Documents Variances 

Two of the tools discussed in the ANPRM include temporary standards (also known as temporary modifications) and
 

ambient-based criteria. Colorado currently has EPA-approved regulatory provisions for each of these tools.
 

Temporary modifications are preferred over a more permanent downgrading of a present classified use where
 

conditions causing water quality problems might be temporary within a twenty year timeframe. [FN1] Temporary
 

modifications have been – and continue to be – useful tools in that they: (1) maintain current water quality conditions
 

while studies are conducted to identify point and nonpoint sources of the pollutant of concern, and (2) provide time for
 

either the State or an interested permittee(s) to collect and assess pertinent water quality data to determine an
 

appropriate and attainable water quality condition for a waterbody, e.g., through development of a Use Attainability
 

Analysis (UAA).
 

In Colorado, ambient quality-based standards may be adopted where the natural or irreversible man-induced ambient
 

water quality levels are higher than those required to protect § 101(a)(2) uses. As such, they are feasibility-based. [FN2]
 

The proposed water quality standards rule is silent on such options, which have a long track record in Colorado of
 

providing needed flexibility to set attainable and defensible uses and associated water quality standards. Although the
 

proposed rule includes much discussion regarding variances as an interim option (discussed in more detail below), we
 

strongly encourage EPA to include preamble language stating that currently approved state regulatory tools will
 

continue to be valid once the proposed rule is finalized.
 

For example, the following language should be added to § C.2 (Designated Uses, Background, page 54522) (additional
 

language is shown as underlined):
 

States and tribes have broad discretion to determine the appropriate level of specificity to use in identifying and defining
 

designated uses, and nothing in this proposal is intended to narrow that discretion. [begin new text] To that end, existing
 

state regulatory tools that address alternatives to "downgrading" of a designated use, including temporary standards
 

and ambient-based criteria, will continue to be considered part of such discretion. [end new text]
 

[FN1] Section 31.7(3)(a) of Regulation No. 31, The Basic Standards and Methodologies for Surface Water (5 CCR
 

1002-31) sets forth the requirements for granting a temporary modification:
 

The Colorado Water Quality Control Commission may grant a temporary modification if:
 

(i) an existing permitted discharge has a demonstrated or predicted water quality-based effluent limit compliance 

problem, and 

(ii) one of the following is shown to exist: 

(A) there is significant uncertainty regarding the water quality standard necessary to protect current and/or future uses. 

(B) there is significant uncertainty regarding the extent to which existing quality is the result of natural or irreversible 

human-induced conditions (emphasis added). 

[FN2] This provision, found at 31.7(1)(b)(ii) in Regulation No. 31 (5 CCR 1002-31), is similar to the factor found at 40 

CFR 131.10(g)(3): "Human caused conditions or sources of pollution prevent the attainment of the use and cannot be 

remedied or would cause more environmental damage to correct than to leave in place." 

08/04/2015 05:01 PM EDT 2-1278
 
Chapter 2 - Comment Documents Variances 

Response 

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

8.l 

8.l: Section C 

5.j 

8.a 

8.b 

Comment ID 0195-A1.001.028 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

Additionally, the NTWC recommends language ensuring that either the state or the discharger(s) concerned must 

properly fund and promptly undertake the necessary studies and complete them as quickly as possible. 

Response 

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

8.l 

8.l: Section C 

8.e 

Comment ID 0199-A1.001.017 

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 

Additionally, EPA should require states to provide an opportunity for public review and demonstrate a clear showing of 

need prior to renewing a variance. 

Response 

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

8.l 

8.l: Section C 

8.i 

08/04/2015 05:01 PM EDT 2-1279
 
Chapter 2 - Comment Documents Variances 

Comment ID 0201-A1.001.026 

Author Name: Godfrey Mike 

Organization: Alabama Power 

V. Water Quality Standard Variances 

EPA is proposing to add 40 C.F.R. § 131.14 to Subpart B of its existing water quality regulations to enumerate 

standards for obtaining WQS variances. For decades, WQS variances have been a reasonable, useful, and valuable, 

yet underutilized, regulatory tool for States to effectively implement the CWA and have been the focus of agency 

guidance, memoranda and legal decisions. The continued availability of WQS variances going forward is imperative as 

States and EPA continue to impose more stringent water quality-based effluent limits in NPDES permits, some of which 

dischargers will undoubtedly be unable to obtain. Alabama Power questions whether the standards set out in proposed 

§ 131.14 will increase the level of effort required to obtain a WQS variance and/or make variances much more difficult 

to obtain. Perhaps Alabama Power's concerns would be curbed if § 131.14 more clearly delineated the procedural 

process for obtaining a variance, each element or factor of EPA's variance review process, and the anticipated timeline 

associated with obtaining a variance. Greater transparency about the process will allow States and the regulated 

community, to be better informed about the overall variance process, as well as permit these entities to submit any 

variance request well in advance of the time the actual variance is necessary for the regulated discharge(s). 

Response 

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

8.l 

8.l: Section C 

8.a 

8.g.iv 

12.c 

Comment ID 0202-A2.001.015 

Author Name: Frederick Kevin 

Organization: Wyoming Department of Environmental Quality/Water Quality Division 

Variances to WQS 

Although Wyoming statutes currently do not allow for water variances, the WDEQ/WQD sees variances as an important 

option for adopting and implementing water quality criteria in the future. Therefore, the WDEQ/WQD is pleased that the 

EPA has provided additional clarification on the use of variances within the federal regulations. That said, the 

WDEQ/WQD is also interested in maintaining as much flexibility as possible within the regulations so that we can utilize 

and implement variances effectively and efficiently. WDEQ/WQD therefore requests that the EPA ensure that states be 

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Chapter 2 - Comment Documents Variances 

allowed to utilize a streamlined variance procedure, as long as the process meets all the requirements outlined in the 

regulations. Streamlined procedures for adoption of variances have been utilized in other states. These procedures 

recognize that the analysis required, and timing of a variance and NPDES permit may not always coincide with triennial 

reviews and rulemaking procedures. 

Response 

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

8.l 

8.l: Section C 

8.a 

Comment ID 0206-A1.001.016 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

If EPA intends to adopt this proposal, it should provide justification for why variances are necessary in light of the CWA 

requirements, and should include provisions that prevent use of variances to delay implementation of water quality 

standards due to political concerns or an unwillingness to enforce the standards. The justification provided in the 

rulemaking notice, that variances are necessary to "provide states and tribes time to make progress towards attaining a 

designated use and criteria" or to "help improve water quality by allowing states and tribes time to work with 

stakeholders", or to "provide[] states and tribes with time to implement adaptive management approaches" are simply 

not persuasive. See 78 Federal Register 54,531-32. EPA's additional justification that "WQS variances are consistent 

with the ‘restore' aspect of the goal since variances are intended to allow incremental environmental progress in 

achieving designated uses" is unfounded. 78 Federal Register 54,532. There is no support for the proposition that the 

adoption of less protective water quality standards assists states in restoring the chemical, physical and biological 

integrity of the Nation's waters. 

EPA should specifically identify how variances improve water quality and why the CWA approaches are not adequate to 

allow states to work with stakeholders or apply adaptive management approaches. EPA provides instruction to states 

on how to apply adaptive management approaches in implementing the CWA as part of its Watershed Academy 

program.[FN11] Variances to water quality standards are not mentioned as one of the tools to be used in adaptive 

management and thus, it is unclear how this Proposed Rule is even related to adaptive management approaches. 

[FN11] http://water.epa.gov/learn/training/wacademy/upload/2005_02_18_watershed_wacademy_wam2003_2fadapmanage.pdf 

Response 

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

08/04/2015 05:01 PM EDT 2-1281
 
Chapter 2 - Comment Documents Variances 

8.l 

8.l: Section C 

8.b 

Comment ID 0206-A1.001.022 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

D. Other Provisions that Must be Included. 

If EPA proceeds with formalizing a variance rule, it should amend the Proposed Rule to make it consistent with its longstanding practice for issuing variances by including the following: 

• Each individual variance is included as part of the water quality standard; 

• The justification submitted by the State includes documentation that treatment more advanced than that required by 

sections 303(c)(2)(A) and (B) has been carefully considered, and that alternative effluent control strategies have been 

evaluated; 

• The more stringent State criterion is maintained and is binding upon all other dischargers on the stream or stream 

segment; 

• The discharger who is given a variance for one particular constituent is required to meet the applicable criteria for 

other constituents; 

• The discharger either must meet the standard upon the expiration of this time period or must make a new 

demonstration of "unattainability"; 

• Reasonable progress is being made toward meeting the standards; and 

• The variance was subjected to public notice, opportunity for comment, and public hearing. (See section 303(c)(l) and 

40 CFR 131.20.) The public notice should contain a clear description of the impact of the variance upon achieving water 

quality standards in the affected stream segment. 

Response 

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

8.l 

8.l: Section F 

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Chapter 2 - Comment Documents Variances 

Comment ID 0207-A1.001.039 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

In lieu of these proposals, EPA should continue to rely on its current regulation embracing variances and its guidance in 

its WQS Handbook. Thus, to the extent additional clarification regarding the use of variances is needed, we recommend 

addressing it in guidance, rather than by regulation, to ensure water quality standards implementation decisions are left 

with states. 

Response 

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

8.l 

8.l: Section C 

8.b 

Comment ID 0214.001.002 

Author Name: Welcker Zach 

Organization: Kalispel Tribe of Indians 

If EPA insists on including variances in its proposed revisions, it should modify the language in accordance with the 

following suggestions: 

1. Only allow variances on waters where a TMDL has been approved and identifies interim actions with enforceable 

milestones as part of the variance. 

2. Do not allow variances to delay implementation of all known and achievable methods of toxic pollution elimination 

from point source discharges. 

3. Do not allow variances to cause delays in establishment of final water quality-based effluent limits ("WQBELs") in 

NPDES permits for protection of all beneficial uses. 

4. Expressly state that dischargers will be required to implement pollutant control strategies and end-of-pipe treatment 

well beyond "technology-based" considerations including, but not limited to, raw-product replacement, source reduction 

through protective municipal pretreatment programs, specific storm water toxics reduction strategy, and complete 

elimination of the toxic discharge using zero-discharge technologies (i.e., flow reduction and water reclamation). 

Response 

08/04/2015 05:01 PM EDT 2-1283
 
Chapter 2 - Comment Documents Variances 

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

8.l 

8.l: Section F 

Comment ID 0215-A1.001.016 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

If EPA intends to adopt this proposal, it should provide justification for why variances are necessary in light of the CWA 

requirements, and should include provisions that prevent use of variances to delay implementation of water quality 

standards due to political concerns or an unwillingness to enforce the standards. The justification provided in the 

rulemaking notice, that variances are necessary to "provide states and tribes time to make progress towards attaining a 

designated use and criteria" or to "help improve water quality by allowing states and tribes time to work with 

stakeholders", or to "provide[] states and tribes with time to implement adaptive management approaches" are simply 

not persuasive. See 78 Federal Register 54,531-32. EPA's additional justification that "WQS variances are consistent 

with the ‘restore' aspect of the goal since variances are intended to allow incremental environmental progress in 

achieving designated uses" is unfounded. 78 Federal Register 54,532. There is no support for the proposition that the 

adoption of less protective water quality standards assists states in restoring the chemical, physical and biological 

integrity of the Nation's waters. 

EPA should specifically identify how variances improve water quality and why the CWA approaches are not adequate to 

allow states to work with stakeholders or apply adaptive management approaches. EPA provides instruction to states 

on how to apply adaptive management approaches in implementing the CWA as part of its Watershed Academy 

program. [FN11] Variances to water quality standards are not mentioned as one of the tools to be used in adaptive 

management and thus, it is unclear how this Proposed Rule is even related to adaptive management approaches. 

[FN11] 

http://water.epa.gov/learn/training/wacademy/upload/2005_02_18_watershed_wacademy_wam2003_2fadapmanage.p 

df 

Response 

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

8.l 

8.l: Section C 

8.b 

Comment ID 0215-A1.001.022 

08/04/2015 05:01 PM EDT 2-1284
 
Chapter 2 - Comment Documents Variances 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

D. Other Provisions that Must be Included. 

If EPA proceeds with formalizing a variance rule, it should amend the Proposed Rule to make it consistent with its longstanding practice for issuing variances by including the following: 

• Each individual variance is included as part of the water quality standard; 

• The justification submitted by the State includes documentation that treatment more advanced than that required by 

sections 303(c)(2)(A) and (B) has been carefully considered, and that alternative effluent control strategies have been 

evaluated; 

• The more stringent State criterion is maintained and is binding upon all other dischargers on the stream or stream 

segment; 

• The discharger who is given a variance for one particular constituent is required to meet the applicable criteria for 

other constituents; 

• The discharger either must meet the standard upon the expiration of this time period or must make a new 

demonstration of "unattainability"; 

• Reasonable progress is being made toward meeting the standards; and 

• The variance was subjected to public notice, opportunity for comment, and public hearing. (See section 303(c)(1) and 

40 CFR 131.20.) The public notice should contain a clear description of the impact of the variance upon achieving water 

quality standards in the affected stream segment. 

Response 

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

8.l 

8.l: Section F 

Comment ID 0217-A2.001.020 

Author Name: Hale Michelle 

Organization: Alaska Department of Environmental Conservation 

Approval of a variance should also not preclude states from subsequently initiating (and completing) procedures to 

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Chapter 2 - Comment Documents Variances 

remove or modify the affected use(s) with supporting UAA, if such an action is deemed to be appropriate at some point 

in the future. The variance process considers uncertainties such as development of future treatment technology 

required to attain the full designated use the variance applies to. After further evaluation, it may become apparent that 

full use attainment is infeasible at which point the receiving water may need to be reclassified on a more permanent 

basis. 

Response 

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

8.l 

8.l: Section F 

Comment ID 0227-A2.001.003 

Author Name: Williams Christopher 

Organization: AMERICAN RIVERS 

We recommend that EPA modify 131.14(b)(2) as follows to ensure that any variance will ultimately lead to attainment of 

designated uses: First, the State/Tribe should analyze how the "highest attainable condition" during the term of a 

variance (131.14(b)(1)(ii)(B)) would relate to actual attainment of the designated use. Since the purpose of a WQS 

variance is " incremental environmental progress" towards such ultimate attainment (see proposed rule, p. 58), this 

analysis would help the State/Tribe and EPA to determine what additional progress would be necessary to achieve 

attainment once the variance expires. Second, the State/Tribe should include alternatives in its analysis, in order to 

demonstrate that the proposed WQS variance requires the most expeditious feasible progress towards attainment. 

Response 

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

8.l 

8.l: Section F 

Comment ID 0231-A2.001.017 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

WQS Variances (s. 131.14) 

EPA proposes to add a new section to the WQS Regulation to regulate State adoption of variances. As a threshold 

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matter, variances should be addressed in guidance rather than regulation, to ensure WQS implementation decisions 

are left with States and Tribes. Guidance could encourage the issuance of variances in certain situations when 

requested by the permittee, and provide basic elements of how variances should be issued, without mandating 

specifics. States and Tribes should be allowed to dictate specifics for themselves. 

Response 

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

8.l 

8.l: Section C 

8.b 

Comment ID 0232-A2.001.008 

Author Name: Grayum Mike 

Organization: Northwest Indian Fisheries Commission 

Additionally, variances are required to be set at the highest attainable condition as opposed to the highest attainable 

use - a term of art previously defined in the proposed regulations. We commend EPA for encouraging temporary 

standards that are as protective as possible, but fear that that "highest attainable condition" currently lacks clarity, 

because it introduces a new undefined term and raises questions how this should be defined vis-à-vis the newly 

proposed definition of highest attainable use. Moreover, what is "attainable" is highly subjective, and authorizes 

applicants to determine the fate of WQS and ultimately the level of resource protection. Given that a variance effectively 

re-writes a state WQS for a specific place or permit, EPA needs to clarify how those standards will be developed, and 

how they will protect uses and meet the goals of the Act. At a minimum, in order to provide clear direction to states, 

variance justifications, should have to follow same process as UAA, and scientific and economic analysis must be 

equally rigorous. 

Another significant problem with the proposed language is the lack of provisions which will provide assurances that 

variances or compliance schedules will result in eventual attainment of WQS. For example, proposed rules for 

variances require that reasonable BMPS that "could be implemented," get documented. This provision merely requires 

the documentation of a scant possibility, and requires no reasonable assurances that implementation will occur. 

Moreover, EPA provides that the variances can be renewed, largely indefinitely, even in the face of continued variance 

noncompliance. These provisions fail to provide the necessary assurances of CWA compliance and the protection of 

treaty reserved resources. 

To rectify this, EPA should explicate how these processes, if used at all, will provide clear-cut assurances that WQS 

can be attained in a timely manner. This should include clear direction that nonpoint source controls are not only 

identified, but are in fact are clearly prescribed to be consistent with achieving WQS, and implemented in a timely 

manner to ensure that standards are attained as fast as possible. It should also prevent lengthy excursions from state 

standards when non-compliance remains the modus operandi. Absent such assurances, variances and compliance 

schedules will be nothing more than exemptions from the CWA. 

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Response 

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

8.l 

8.l: Section F 

8.b 

8.c 

8.e 

8.g.ii 

8.g.v 

8.i 

Comment ID 0234-A2.001.025 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

We recommend addressing variances in guidance, rather than by regulation, to ensure water quality standards 

implementation decisions are left with States. Such guidance should encourage the issuance of variances in those 

situations when requested by the permittee, and provide basic elements of how variances should be issued, without 

dictating the specifics that States can develop for themselves. 

Response 

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

8.l 

8.l: Section C 

8.b 

Comment ID 0234-A2.001.031 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

To address these issues, federal regulations, if adopted, should allow States to continue rely on the demonstration 

under § 131.10(g) to justify a variance, without going through additional regulatory hoops. 

08/04/2015 05:01 PM EDT 2-1288
 
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Response 

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

8.l 

8.l: Section C 

8.a 

8.b 

8.c 

8.d 

8.f 

8.f.i 

8.f.ii 

8.g 

8.g.ii 

8.g.iii 

8.g.iv 

8.g.v 

8.g.vi 

8.h 

8.i 

Comment ID 0235-A2.001.008 

Author Name: Lumley Babtist 

Organization: Columbia River Inter-Tribal Fish Commission 

Variances should include some type of schedule for compliance including verifiable actions leading to water quality 

standards attainment and protection of uses. EPA should strengthen the requirements for maintaining a variance so 

that this tool is used as a method of achieving water quality standards through responsive and verifiable actions. 

CRITFC appreciates the opportunity to provide these comments and is available for any questions. Please contact our 

staff, Dianne Barton or Julie Carter at 503-238-0667. 

Response 

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

8.l 

8.l: Section C 

8.b 

8.d 

08/04/2015 05:01 PM EDT 2-1289
 
Chapter 2 - Comment Documents Variances 

8.e 

8.f.i 

8.f.ii 

8.g.iii 

8.g.iv 

8.h 

Comment ID 0236-A2.001.026 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

Recommended changes: 

•Section F.2.a.i. states that "A waterbody variance provides time for the state or tribe to work with both point and 

nonpoint sources to determine and implement adaptive management approaches on a waterbody/watershed scale to 

achieve pollutant reductions and strive toward attaining the waterbody's designated use and associated criteria. This 

requires clarification for Wisconsin, as we both encourage adaptive management plans for phosphorus, and allow 

facility-specific variances for phosphorus. 

o Does EPA intend to imply that all adaptive management plans for phosphorus in Wisconsin must be approved by 

EPA? 

o How might adaptive management apply to standard (in WI) variance pollutants such as chloride, mercury, and 

copper? 

Response 

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

8.l 

8.l: Section C 

Comment ID 0236-A2.001.034 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

Recommended changes: 

• Please clarify the use of the word remove in Section F.2.b.ii "The EPA's current position is that before removing a 

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Chapter 2 - Comment Documents Variances 

designated use states and tribes must first evaluate the impact that point and nonpoint source controls might have on 

water quality." Perhaps this should be amended to say "The EPA's current position is that before removing or modifying 

a designated use or applying a variance-modified use..." 

Response 

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

8.l 

8.l: Section C 

Comment ID 0244-A2.001.010 

Author Name: Loomis Marion 

Organization: Wyoming Mining Association 

Variances 

EPA is proposing to regulate State adoption of variances. WMA believes that in general, variances should be 

addressed in guidance to leave WQS implementation decisions with the State. Guidance could also encourage the 

issuance of variances in situations when requested by the permittee, and could provide basic elements of how 

variances should be issued. This will allow the State to develop the details of implementation on their own. 

Response 

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

8.l 

8.l: Section C 

8.b 

Comment ID 0245-A2.001.003 

Author Name: Krapas Douglas 

Organization: Inland Empire Paper Company 

2. Water Quality Standard Variances 

Inland supports the inclusion of more specific guidance and standards as to when variances are available to individual 

and multiple discharges and on a watershed basis. We urge the EPA to consider the variance rule in light of the policy 

direction of Region 10 on human water quality criteria. The rule should allow enough flexibility to address the long-term 

08/04/2015 05:01 PM EDT 2-1291
 
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needs for compliance tools with very stringent criteria. 

Response 

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

8.l 

8.l: Section C 

8.b 

8.c 

8.d 

8.f.i 

8.f.ii 

8.g.ii 

8.g.iii 

8.g.iv 

8.g.v 

8.g.vi 

8.i 

Comment ID 0251-A2.001.014 

Author Name: Wigal Jennifer 

Organization: Oregon Department of Environmental Quality 

Endangered Species Act considerations 

EPA should clarify in the preamble the relationship of Endangered Species Act (ESA) requirements to its approval of 

state adoption of state variance procedures and subsequent individual state-issued variances. 

The proposed rule and preamble discussion do not address the requirements for states and EPA with regard to 

evaluating potential effects to threatened and endangered species in the vicinity of a discharge with a variance. 

Generally, the EPA and state must ensure that granting the variance is not likely to jeopardize the continued existence 

of any threatened or endangered species listed under the ESA, or result in the destruction or adverse modification of 

such species' critical habitat. EPA should discuss these requirements in the preamble relative to the role states are 

expected to assume and the documentation states are expected to provide to EPA in any such consultation. 

Effective date of final rule 

EPA's proposed requirement that variances issued by states comply with the federal rule immediately following the final 

rule adoption date is unreasonable. EPA should include either a delayed effective date or a future date for state rules to 

comply. 

08/04/2015 05:01 PM EDT 2-1292
 
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The proposed rule states that any variance adopted after the effective date of the final rule must be consistent with the 

new rule. EPA stated on the Oct. 31, 2013 ACWA call is that any currently effective variance would remain effective. 

However, the proposed rule fails to account for the fact that many states, including Oregon, currently have existing 

variance rules in place. In issuing variances, states must comply with both state and federal rules. Requiring states to 

comply immediately upon finalization of these rules is unreasonable. As a practical matter, states will be unable to 

evaluate the extent to which their current rules are in conflict with the federal rules until the final rules are published. In 

addition, as EPA knows, rule revisions and subsequent EPA approval can take a considerable amount of time. At a 

minimum, EPA should include either a delayed effective date of these rule provisions or a reasonable future date by 

which state rules are expected to comply. In addition, EPA should address how it expects states to address variance 

renewals during this period of transition (i.e., variances issued under existing state and federal regulations that seek 

renewal after EPA's final rules are adopted). 

Response 

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

8.l 

8.l: Section C 

8.l: Section G 

Comment ID 0252-A2.001.017 

Author Name: Fry Eric 

Organization: Peabody Energy 

WQS Variances (s. 131.14) 

EPA proposes to add a new section to the WQS Regulation to regulate State adoption of variances. As a threshold 

matter, variances should be addressed in guidance rather than regulation, to ensure WQS implementation decisions 

are left with States and Tribes. Guidance could encourage the issuance of variances in certain situations when 

requested by the permittee, and provide basic elements of how variances should be issued, without mandating 

specifics. States and Tribes should be allowed to dictate specifics for themselves. 

Response 

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

8.l 

8.l: Section C 

8.b 

08/04/2015 05:01 PM EDT 2-1293
 
Chapter 2 - Comment Documents Variances 

Comment ID 0252-A2.001.021 

Author Name: Fry Eric 

Organization: Peabody Energy 

Regarding: 

o the preamble, EPA should clarify how "adaptive management approaches" are defined. 

Response 

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

8.l 

8.l: Section C 

8.c 

Comment ID 0259-A2.001.007 

Author Name: Naylor Char 

Organization: Puyallup Tribe of Indians 

At issue in Washington State is the prospective wide use of variances by individual and multiple dischargers as well as 

those that will apply statewide for so-called problem chemicals like mercury and PCBs. Without strict guidelines on 

variances, including mandating development and implementation of pollution minimization plans, as well as highest 

achievable water quality limits, they are likely to serve solely as unfettered licenses to pollute. With the prospective 

near-term promulgation of new human health criteria in Washington State, compliance tools like variances are a key 

element the state is offering to give dischargers "flexibility" and "certainty". Yet, little substance has been offered to 

provide clarity, effective implementation and assurances that such tools meet the requirements of the CWA and lead to 

improvements in water quality. 

Response 

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

8.l 

8.l: Section C 

8.b 

Comment ID 0268-A2.001.028 

08/04/2015 05:01 PM EDT 2-1294
 
Chapter 2 - Comment Documents Variances 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

EPA's reference to using "adapative management," id. at 54531, in the context of variances is really inappropriate. 

There is nothing in the proposed rule that suggests that EPA is correct about its idea that variances will lead to 

attainment and if adapative management is a serious consideration in this context, it will have to be included in the rule. 

Saying the phrase "adapative management" in the preamble does not ensure that sufficient monitoring and evaluation 

will take place to even form the basis of next steps in an adaptive management scheme. And adapative management 

requires triggers to make sure parties take those next steps. Without a reason, agencies do not engage in adapative 

management. Without a clear process with information and deadlines they do not implement it. 

The issue of EPA's broad assertions comes up again a few paragraphs later, when EPA says "when properly applied, a 

variance can lead to improved water quality over time, and in some cases full attainment[.]" Id. What does EPA mean 

by "when properly applied"? If EPA has some ideas of what constitutes proper application, it must include them in the 

rule but at a minimum it should not keep the states and public guessing. What is the "proper application" EPA has in 

mind? All EPA hints at is that there might be advances in treatment technologies, control practices, or changes in 

circumstances none of which appear to be related to "proper application." How specifically will a variance take 

advantage of any advances in treatment technologies that occur? There is nothing in the rule that requires on-going 

evaluation of what technologies might be developed over a 10-year period. More likely a variance will lock in a lower 

level of treatment because it has changed the goal to accept more pollution. If EPA wants something better, it must 

build it in to the definition of a variance. In addition, the phrase "control practices" is exceedingly vague. It's unclear 

whether it pertains to point, nonpoint, or both types of sources. Control practices for nonpoint sources are not rocket 

science, waiting to be developed as can be the case with point source treatment technologies. More often than not, 

nonpoint source control practices are known now but not yet required, practices that could be phased in or practices 

that being started at the outset could pay off over a 10-year time frame (or less). Finally, what changes in circumstances 

is EPA discussing? In thinking about how a "circumstance" can improve water quality one tends to think of significant 

restoration activities, significant nonpoint source controls, or the closure of a point source (presumably the variance 

protects the facility from having to add significant control technologies). These are interesting scenarios and EPA does 

not suggest what a state should be required to do if in the middle of a 10-year variance there are such circumstances 

that would warrant the removal of the variance because, essentially, its assumptions were proven to be incorrect. 

Likewise, EPA does not discuss the best outcome of a variance which is that it is not renewed but instead point sources 

previously covered by a variance are able to switch to a compliance schedule to meet the underlying water quality 

standards. We understand that in Idaho this has or is about to occur for three municipalities that have been covered by 

a variance. This is the strongest indication that the objectives of the CWA will in fact be met rather than dodged for 

many years to come. 

EPA goes on in this theme at some length, invoking the goal that variances "are intended to allow incremental 

environmental progress in achieving designated uses," "variances will allow for environmental progress towards 

achieving the goals of the CWA," and "[the proposed] revisions will also provide assurance that further feasible 

progress towards the designated use and criterion will be made during the variance period." Id. at 54532. Yet there is 

very little in the proposed rules that would result in this outcome other than, perhaps, the proposed 40 C.F.R. § 

131.14(d) regarding renewals of variances. This, of course, would only come after a 10-year period, or some increment 

of 10 years. As between, for example, (1) a state ensuring that significant nonpoint source controls are implemented in 

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Chapter 2 - Comment Documents Variances 

the first 10 years of a variance and (2) an NPDES source betting it could count on EPA to approve a renewed variance 

in the absence of any nonpoint source controls instead of vetoing a permit and denying a variance renewal, thereby 

requiring expensive treatment technology, we would bet on the latter and win every time. That's why the rules need to 

be very clear about the expectations and why it is not sufficient to simply repeat numerous times what the goal is, and 

what EPA hopes will happen. Very little that involves spending money to achieve pollution reductions takes place on the 

basis of hope. 

We also caution EPA against using the phrase "legacy pollutants" as it does in the discussion of when variances might 

be useful. Id. at 54532 ("challenges involving legacy pollutants"). While we agree that a variance is preferable to a 

permanent downgrade in designated uses where a state and the public do not know whether a use can be attained, the 

word "legacy" is meaningless. It is often used to mean now-banned toxic pollutants but in reality it can be extended to 

mean nearly any impaired waterbody including those with impairments that have developed since 1975. It's certainly 

true of the Oregon Department of Agriculture which considers nearly any riparian impairment to be "legacy." Even 

people who might disagree with that outlook might view widespread overgrazing that has removed riparian vegetation 

and affected the temperature regime of streams in the West as a "legacy" condition. Since it is ill-defined and not 

susceptible to definition EPA should avoid using it and use examples instead. 

Response 

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

8.l 

8.l: Section C 

8.b 

8.c 

8.d 

8.e 

8.f 

8.f.i 

8.f.ii 

8.g.iii 

8.g.v 

8.i 

08/04/2015 05:01 PM EDT 2-1296
 
Chapter 2 - Comment Documents Variances 

Comment ID 0268-A2.001.036 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

Full transparency requires, at a minimum, that once approved by EPA a state provide the information on its website. We 

recommend that states be required to post with their water quality standards some method by which the public is 

alerted to the fact that variances exist and that they change over time. If variances are merely buried in standards, they 

will be a lot less obvious. Moreover, to ensure consistency with the findings and rationale EPA used to approve a 

variance, states should be required to post EPA's decision document for the duration of the variance. As EPA likely 

knows, its regions handle standards issues inconsistently with regard to providing information to the public; some 

regions post standards information for long periods of time, some for short periods of time, and some do not even 

recognize that water quality standards have been issued and approved by EPA in their states. Posting the rationale will 

help members of the public comment on other regulatory documents that are linked in some fashion to the variance or 

its rationale including but not limited to NPDES permits, 401 certifications, TMDLs, 303(d) lists, and nonpoint source 

plans and practices. We urge EPA to include this requirement in rules because we have seen states repeatedly promise 

EPA to post information on their websites with no subsequent action from states. EPA must do more than invoke 

"transparency," it must ensure it. 

As for public participation, we urge EPA to include in the preamble its view that states may not hide variance requests in 

NPDES permit commenting opportunities. In other words, states must specifically request public comment on variances 

just as they do for other water quality standards. While we think the rules are clear on this because they cite to 40 

C.F.R. § 131.20(b), some states believe they can merge the public process for a permit renewal with a variance. 

Members of the public who might not comment on a permit renewal might be interested in commenting on a 10-year 

variance. This is not transparent. 

Response 

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

8.l 

8.l: Section C 

Comment ID 0268-A2.001.052 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

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

[begin new text] (4) A WQS variance shall not be granted if the designated use and criterion remove necessary 

protections from existing uses. [end new text] 

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[begin new text] (5) A WQS variance shall not be granted if the designated use and criterion addressed by the proposed 

WQS variance can be achieved through implementation of cost-effective and reasonable best management practices 

for point or nonpoint source controls related to the pollutant(s) and location(s) in the variance and are within the 

authority of the permittee to control. [end new text] 

Response 

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

8.l 

8.l: Section C 

8.f 

8.g.v 

Comment ID 0268-A2.001.062 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

Added in redline edits above are: (1) protection of existing uses in the issuance of variances; (2) a requirement that the 

variance state both the effluent condition and the replacement criterion; (3) a five year limit on variances; (4) a plan for 

achieving implementation of BMPs including timeframes, methods of assuring implementation, and a monitoring plan; 

(5) a requirement that the permittee implement any BMPs within its authority to do so; (6) a restriction on lowering water 

quality through changes in mixing zones; and (7) a requirement that the state implement the plan to ensure BMPs. 

Removed in redline edits above are: (1) waterbody variances; (2) applicability of variances to 401 certifications except 

401 certifications related to NPDES permits; (3) 10-year variances; and (4) limitation on uses established in CWA 

section 101(a)(2). 

Response 

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

8.l 

8.l: Section C 

8.b 

8.c 

8.f 

8.f.i 

8.f.ii 

8.g.ii 

8.g.iii 

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Chapter 2 - Comment Documents Variances 

8.g.iv 

8.g.v 

Comment ID 0269-A2.001.009 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

(5) WQS Variances 

EPA proposes to add more specificity in regulation regarding variances by addressing variance applicability, submission 

requirements, implementation, duration, and renewal. 

The proposed regulation indicates that "WQS variances are water quality standards subject to EPA review and 

approval". NYSDEC requests clarification of this review and approval process. Will EPA conduct this process as part of 

its review of draft permits? Will the EPA review process differ depending on the pollutant(s), number or character of 

permittees, and/or water body(ies) affected? 

Unlike 40 CFR 132, the proposed changes to 40 CFR 131 do not appear to establish clear responsibilities for individual 

permittees that may wish to obtain a variance. Not establishing such responsibilities, or removing them relative to 40 

CFR 132, may invite casual variance requests from permittees that impose a substantial burden on the states and EPA. 

Generally, NYSDEC supports EPA's proposal to develop a variance regulation. However, NYSDEC supports changes 

to the proposed regulation to allow for New York's variance regulation at 6 NYCRR 702.17. Specifically, instead of a 

variance from water quality standards, New York's regulation provides for a variance from water quality-based effluent 

limitations (WQBELs). If the proposed regulations were to establish variances to WQBELs instead of standards, this 

may result in simpler regulations and implementation. 

Response 

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

8.l 

8.l: Section C 

8.g.iv 

Comment ID 0272-A2.001.026 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

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The Water Protection Groups strongly agree that variances can never be an option for new or expanding discharges as 

such a concept is completely contrary to the requirements of the Clean Water Act and existing EPA regulation. 

EPA's proposal that a state must demonstrate that attaining the designated use and criteria is not "feasible" during the 

term of the variance is confusing. "Feasible" is a term that is often subject to much controversy and should be better 

defined. The Water Protection Groups submit that EPA should not allow "feasible" to be defined in strictly monetary 

terms, but should limit it to whether a technology or practice is actually available to address a water quality issue. If 

there is truly no available method, then perhaps attaining a water quality standard in three years is not "feasible." 

(Although again, there is nothing in the Clean Water Act that allows for a variance in that instance-it will simply take 

longer for a water body to come off the impaired waters list.) 

Finally, some of the same concerns with vague loopholes expressed above in the section regarding UAAs would apply 

here and the Water Protection Groups urge EPA to tighten those requirements. 

Response 

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

8.l 

8.l: Section C 

8.f.ii 

8.g.iv 

Comment ID 0276-A2.001.008 

Author Name: Alves James 

Organization: Hopping Green & Sams on behalf of Florida Electric Power Coordinating Group, Inc. 

Variances 

EPA in now proposing an approach to regulating the use of variances that the agency specifically rejected in its 1983 

rulemaking. Variances are currently referenced at 40 C.F.R. § 131.13 as one of several policies generally affecting the 

application and implementation of state water quality standards and which the states may, "at their discretion" include in 

their respective standards. 

In 1983, EPA proposed but then eliminated a detailed statement regarding variances in § 131.13 because variances, 

like mixing zones and low flow exemptions, were not "regulatory in nature." 

Except for a general statement that states may adopt policies affecting the application and implementation of standards 

and that such policies are subject to EPA review and approval, all other elements of proposed Section 131.13 have 

been deleted, including the detailed statement on mixing zones, low flow exemptions and variances. 

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Specific subsections on mixing zones, low flow exemptions and variances were deleted because, as the public 

comments suggested, they were not regulatory in nature and therefore were more appropriately addressed in guidance. 

Contrary to EPA's prior characterization of variances as not regulatory in nature, the recently proposed rule (although 

referred to as a regulatory clarification) establishes a complex and highly proscriptive set of regulations related to 

variances while asserting several times in the preamble that the intent of the proposed language is to encourage the 

use of variances. 

Response 

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

8.l 

8.l: Section C 

2.e 

8.b 

Comment ID 0277-A2.001.003 

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation 

2) Proposed revision of adding Sec. 131.14 establishing guidelines for Water Quality Standard (WQS) variances. 

Comment: According to EPA's fact sheet guidance related to this proposed rule change, it appears that the intent of this 

regulation change is to allow permittees to propose a "time-limited use and/or criterion for a specific pollutant, water 

body and/or segments of a water body that reflect(s) the highest attainable condition that can be achieved during a 

specific time period." In other words, the proposed WQS variance would seem to allow states and/or permittees to be 

granted an interim grace period to implement measures or adopt long-term strategies to improve water quality 

conditions in situations where the WQS cannot be met based on current practices or conditions. 

MassDOT suggests that public safety be included in determining whether a water quality variance is appropriate for a 

water body as part of Section 131.14.b.3, particularly with respect to meeting water quality standards for chloride in 

relation to deicing material usage. MassDOT constantly strives to balance the public safety needs during winter storm 

conditions and minimizing the potential environmental impacts. Utilization of a water quality variance may likely be an 

appropriate regulatory mechanism to allow time to deploy additional technology and equipment that may be needed in 

pursuit of meeting aquatic life water quality standards for chloride in the smallest of streams with limited dilution. 

Reducing deicer material usage (if possible) requires time to achieve iterative steps and measured progress to allow 

operators and the traveling public to adjust to incremental changes while maintaining safe driving conditions. 

Response 

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

8.l 

8.l: Section C 

8.g.iv 

Comment ID 0278-A2.001.022 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

However, recognizing that legitimate factors may prevent EPA or a state from acting on a renewal application before the 

expiration of the original variance term, we urge EPA to add an "administrative continuance" mechanism similar to the 

one for expiring, administratively continued NPDES permits under 40 CFR §122.6. As long as a renewal application is 

timely and complete, then the discharger should continue to enjoy the protections of the variance pending a state's or 

EPA's action on the application. 

Response 

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

8.l 

8.l: Section C 

8.g.iii 

Comment ID 0282-A2.001.011 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

• EPA should consider allowing states the authority to issue variances programmatically. EPA could approve a state 

variance development and approval process described in state standards and allow the state, under clear conditions, to 

issue a variance through rulemaking, without discrete EPA approval. For example, if a state were to adopt procedures 

and requirements for issuing waterbody-specific or mulit-discharger variances in their water quality standards and 

obtained EPA approval, then subsequent individual variances could be issued by the state under the framework of the 

approved water quality standards without having to obtain individual EPA approval. The state could use its NPDES 

delegated authority to issue and manage the individual variances, including the public processes that are built into that 

program. This would allow administrative efficiencies for both the state and EPA while at the same time providing a fully 

transparent public process through the NPDES program. 

Response 

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Chapter 2 - Comment Documents Variances 

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

8.l 

8.l: Section C 

8.a 

8.c 

Comment ID 0283-A1.001.021 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

While U.S. EPA suggests that variances can create a framework to provide States and tribes with time to implement 

adaptive management approaches, the prescriptive requirements and oversight of the minutiae make this process 

unattractive. If a State is going to undertake the task of performing the assessment in section 131.10(g), it might as well 

remove the use instead of having to deal with a short-term variance process that may need to be repeated one or more 

times. EPA should make the variance process much more streamlined since it is only applicable for a relatively short 

duration. 

Response 

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

8.l 

8.l: Section C 

8.a 

8.b 

8.d 

8.f.i 

8.f.ii 

Comment ID 0284-A2.001.011 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

• EPA should consider allowing states the authority to issue variances programmatically. EPA could approve a state 

variance development and approval process described in state standards and allow the state, under clear conditions, to 

issue a variance through rulemaking, without discrete EPA approval. For example, if a state were to adopt procedures 

and requirements for issuing waterbody-specific or mulit-discharger variances in their water quality standards and 

obtained EPA approval, then subsequent individual variances could be issued by the state under the framework of the 

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Chapter 2 - Comment Documents Variances 

approved water quality standards without having to obtain individual EPA approval. The state could use its NPDES 

delegated authority to issue and manage the individual variances, including the public processes that are built into that 

program. This would allow administrative efficiencies for both the state and EPA while at the same time providing a fully 

transparent public process through the NPDES program. 

Response 

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

8.l 

8.l: Section C 

8.a 

8.c 

8.M - VAR - LEGAL 

Comment ID 0170-A1.001.005 

Author Name: Faggert Pamela 

Organization: Dominion Resources Services, Inc. 

States have primacy in implementing WQS and details regarding implementation of variances should be addressed 

through state implementation procedures. 

Response 

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

8.m 

3.a 

8.b 

8.l 

Comment ID 0182-A2.001.010 

Author Name: Hahn Martha 

Organization: The Colorado Wastewater Utility Council 

V. Water Quality Standards Variances 

Overall Variance Provisions - § 131.14: The state of Colorado recently adopted discharger-specific variance regulatory 

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Chapter 2 - Comment Documents Variances 

provisions, along with associated guidance. In certain circumstances, a dischargerspecific variance may be an 

appropriate temporary water quality tool, especially in circumstances where it is evident that underlying uses and 

associated standards may be attainable through reasonable point and nonpoint source controls over time. 

This is a good example of how an individual state has utilized existing Clean Water Act statutory and its own regulatory 

authority to move forward to implement variance provisions. As such, we believe that variance adoption and 

implementation should be left to the states since they are in a better position to address specific concerns and needs. 

Response 

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

8.m 

8.a 

Comment ID 0196-A1.001.018 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

Variances 

EPA proposes to add requirements to ensure "proper" use of variances by states. However, states regularly adopt 

variances as a means to implement water quality standards due to the wide variety of discharges under the state 

programs. As such, variances are an important mechanism for water quality standard implementation. States are clearly 

the most knowledgeable authority to determine which actions are appropriate and how variances should be 

implemented given the totality of the local circumstances. This flexibility is especially important as effluent limitations 

and long-term goals become more stringent. EPA fails to identify any justification for interfering with the states' authority 

to make assessments based on local conditions in the manner proposed. 

Response 

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

8.m 

3.a 

8.b 

8.l 

Comment ID 0207-A1.001.038 

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Chapter 2 - Comment Documents Variances 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

These requirements could be read to authorize EPA to condition a variance approval on matters that go beyond what 

interim criteria a discharger must meet. Such a condition would exceed EPA's authority under the Act, particularly if the 

condition was related to nonpoint source BMPs. Nothing in the CWA gives EPA the authority to use its water quality 

standards regulations to compel state regulatory action. In fact, such authority would violate the 10th Amendment to the 

U.S. Constitution. In New York v. United States, 505 U.S. 144 (1992), the Supreme Court struck down a provision of 

federal law that required states to provide for the disposal of radioactive wastes. The Court held that Congress may not 

"commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal 

regulatory program. Id. at 161. In other words: "While Congress has substantial power to govern the Nation 

directly,...the Constitution has never been understood to confer upon Congress the ability to require the States to 

govern according to Congress' instruction." Id. at 162. 

Response 

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

8.m 

7.f.ii 

8.g.v 

Comment ID 0208-A1.001.018 

Author Name: Foster Wade 

Organization: The Fertilizer Institute 

These nonpoint source provisions plainly would usurp authorities that Congress reserved to states and tribes under the 

CWA,[FN34] violate longstanding EPA policy acknowledging that reservation, [FN35] and interfere with exclusive state 

control (rather than mere regulatory primacy) over controls and methods related to nonpoint sources, as established by 

Congress and confirmed by federal courts.[FN36] For instance, under section 303 of the CWA, the states are required 

to set WQS for all waters within their boundaries, regardless of the sources of the pollution entering the waters. In turn, 

pursuant to section 303(d)(1),[FN37] each state is required to identify those waters that do not meet the relevant WQS. 

For impaired waters identified via section 303(d)(1), the states must establish a TMDL for pollutants. Each state is 

required to submit its section 303(d)(1) list and its TMDL to the EPA for its approval or disapproval, and EPA can 

become responsible for preparing the TMDL document if it disapproves of the state's document. Next, the state 

incorporates its § 303(d)(1) list and its TMDL (or, the EPA's approved document) into its own continuing planning 

process as required by § 303(e).[FN38] 

None of these provisions contemplate that EPA can require a state to develop and implement controls after it finalizes 

its planning process for impaired waters, or require states to take particular approaches to evaluating trade-offs 

between point and nonpoint sources within their jurisdiction. Similarly, nowhere does the CWA authorize EPA to subject 

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state and tribal processes for regulating nonpoint sources to specific administrative procedures that may trigger public 

participation, litigation, or administrative reconsideration regarding state and tribal decisions governing nonpoint 

sources. Instead, the CWA vests authority to regulate nonpoint sources, and trade-offs between point and nonpoint 

sources that may become necessary with respect to TMDLs and impaired waters, in states and tribes - not EPA. In 

contrast, the authorities that the CWA grants EPA regarding nonpoint sources are informational,[FN39] or relate to 

substituting documents to be incorporated into states' and tribes own ongoing "plans."[FN40] As such, it would be 

arbitrary and capricious and contrary to law for EPA to coerce states into taking particular courses of action that EPA 

itself has no regulatory authority to pursue, and which Congress expressly reserved to states and tribes. 

[FN34] See, e.g., 33 U.S.C. §§ 1251(b), 1251(g), 1288, 1313(d) & 1329. 

[FN35] See, e.g., EPA, Memorandum to Water Management Division Directors Regions I-X re: "Interpretation of 

Federal Antidegradation Regulatory Requirement," at 2-4 (Feb. 22, 1994) ("Section 131.112(a)(2) does not REQUIRE a 

State to establish BMPs for nonpoint sources where such BMP requirements do not exist . . . . The [CWA] Act leaves it 

to the States to determine what, if any, controls on nonpoint sources are needed to provide for attainment of State water 

quality standards. States may adopt enforceable requirements, or voluntary programs to address nonpoint source 

pollution . . . . The State antidegradation policy may be used to support State efforts for obtaining additional authority to 

control nonpoint sources . . . . We recommend that States explain in their antidegradation polices or procedures how, 

and to what extent, the State will require implementation of otherwise non-enforceable (voluntary) BMPs before allowing 

point source degradation of high quality waters. EPA understands this recommendation exceeds the Federal 

requirements discussed in this guidance. . . . The state should consider how these provisions will be implemented in 

conjunction with the water quality standards program.") (internal citations omitted; emphasis added). 

[FN36] See, e.g., S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 106-07 (2004) (noting the division 

between point and nonpoint sources); Pronsolino v. Nastri, 291 F.3d 1123, 1126-28 (9th Cir. 2002) (explaining that "the 

CWA uses distinctly different methods to control pollution released from point sources and that [are] traceable to 

nonpoint sources . . . . [It] ‘provides no direct mechanism to control nonpoint source pollution but rather uses the ‘threat 

and promise' of federal grants to the states to accomplish this task,' . . . thereby ‘recogniz[ing], preserv[ing], and 

protect[ing] the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the 

development and use . . . of land and water resources' . . . . The upshot of this intricate scheme is that the CWA leaves 

to the states the responsibility of developing plans to achieve water quality standards if the statutorily-mandated point 

source controls will not alone suffice, while providing federal funding to aid in the implementation of the state plans.") 

(citing the CWA, Or. Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1096 (9th Cir. 1998) ("Nonpoint source pollution 

is not regulated directly by the Act, but rather through federal grants for state wastewater treatment plans."); Or. Natural 

Res. Council v. US Forest Serv., 834 F.2d 842, 849 (9th Cir. 1987) ("[W]e do not believe that the Act allows for the 

enforcement of state water quality standards, as affected by nonpoint sources, under the citizen suit provision. . . . Point 

sources are subject to direct federal regulation . . . . Nonpoint sources, because of their very nature, are not regulated 

under the NPDES. Instead, Congress addressed nonpoint sources of pollution in a separate portion of the Act which 

encourages states to develop areawide waste treatment management plans. . . ."). 

[FN37] See 33 U.S.C. § 1313(d)(1). 

[FN38] See id. § 1313(e). 

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[FN39] See, e.g., id. § 1314(f)(2)(F) (directing EPA to issue "information" on methods for controlling nonpoint source 

pollution, which hypothetically could be considered or rejected by states or tribes). 

[FN40] See id. § 1313(d)(2). 

Response 

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

8.m 

3.a 

7.f.ii 

7.l 

8.g.v 

Comment ID 0210-A1.001.007 

Author Name: Connelly Kent 

Organization: Coalition of Local Governments 

Later, in Section 131.14, the EPA states that waterbody variances may be adopted if identification and documentation 

of best management practices for nonpoint source control have been provided. Once again, the EPA lacks the authority 

to propose such a regulation. 

Response 

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

8.m 

8.g.v 

Comment ID 0248-A2.001.021 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

As with EPA's anti-degradation proposals discussed above, Mosaic submits respectfully that this language on BMPs 

and non-point source controls extends EPA authority beyond the confines of the CWA; the Agency lacks a basis and 

need to do that. 

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Response 

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

8.m 

8.g.v 

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