Tri-TAC

Jointly Sponsored by:

League of California Cities

California Association of Sanitation Agencies

California Water Environment Association

September 10, 2010 Reply to: 500 Capitol Mall, Suite 1000

Sacramento, CA 95814

(916) 446-7979

blarson@somachlaw.com

Office of Science and Technology

Mail Code 4305T

Office of Water

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

ATTN: Thomas Gardner

Docket No. EPA-HQ-OW-2010-0606 – Stakeholder Input,

Revisions to Water Quality Standards Regulation

Dear Mr. Gardner:

Tri-TAC and the California Association of Sanitation Agencies (CASA) are 

pleased to submit comments to the U.S. Environmental Protection Agency (USEPA) in 

accordance with the July 30, 2010 Federal Register Notice (Notice) requesting 

stakeholder input in relation to potential revisions to the Water Quality Standards 

regulations ((WQS regulations). Tri-TAC and CASA represent municipal wastewater 

collection, treatment, and water recycling agencies that serve most of the sewered 

population in California. By way of background, Tri-TAC is a technical advisory group 

for publicly owned treatment works (POTWs) in California jointly sponsored by CASA, 

the California Water Environment Association (CWEA), and the League of California 

Cities. CASA is a statewide organization representing over 110 local public agencies 

providing wastewater services. 
Thomas Gardner

Re: Docket No. EPA-HQ-OW-2010-0606

September 10, 2010

Page 2

In the Notice, USEPA posed a list of six topics within the current WQS 

regulations for which changes are being considered. Tri-TAC and CASA believe the 

existing regulations provide an overall framework that, in general, worked fairly well at 

first, but has gradually become overly rigid and difficult to use. Therefore, we agree that 

certain aspects of WQS regulations could benefit from an update, though in our view 

most of the changes needed differ from those outlined in the Notice. Overall, we believe 

more flexibility is needed to adapt water quality standards to conditions that are 

applicable today, rather than keeping them frozen in time from when they were originally 

established, which often dates back to the 1970s. In recent times, state water quality 

programs have been dominated by complex requirements to produce state Section 303(d) 

lists on a frequent basis, and Total Maximum Daily Loads (TMDLs) at an accelerated 

rate, and this can be expected to continue for the foreseeable future. During the listing 

and/or TMDL development process, issues relating to standard-setting often arise. 

Sometimes these can be addressed using existing tools under the current regulatory 

framework. In many cases, however, it is very difficult to make changes to designated 

beneficial uses or water quality criteria due to the very limited circumstances under 

which standards can be modified. The reason for this problem is a “disconnect” between 

conditions in the 1970s, when uses first were designated, and current conditions. For 

example, in a watershed that has transitioned from agricultural to suburban or urban 

development, the “existing” agricultural beneficial use designation may no longer be 

valid or necessary, yet it may be impossible to remove the use because it has been 

deemed to be an “existing” use. Another issue is the very conservative approach to 

granting variances, even though variances are temporary in nature and do not involve a 

change to water quality standards, such as removal or downgrading of uses. USEPA 

should develop a separate set of guidelines for granting variances, while also allowing 

states to adopt their own approaches and rules in accordance with state needs.

Regarding the six topics identified in the Notice, this letter provides Tri-TAC and 

CASA’s input regarding the following topics: A. Antidegradation Implementation

Methods, C. Designated Uses, D. Variances, and E. Triennial Reviews.

Antidegradation Implementation Methods

The current WQS regulation specifies that states and tribes must identify the 

methods to implement the antidegradation policies that they are required to adopt in their 

water quality standards. The regulation, however, does not specify what implementation 

methods must be included in the policies. The Notice indicates that USEPA is 

considering modifying the WQS regulations to specify that antidegradation 

implementation plans must meet specific minimum requirements and must be adopted 

into state and tribal water quality standards, which would require USEPA review and 

approval. There is no demonstrated need to establish prescriptive minimum federal 

antidegradation implementation requirements. As with other aspects of the WQS 
Thomas Gardner

Re: Docket No. EPA-HQ-OW-2010-0606

September 10, 2010

Page 3

regulations, the federal rules set forth the required elements of antidegradation policies 

and leave implementation to the states and tribes, which should continue to have 

discretion over implementation methods. Setting minimum antidegradation 

implementation requirements is unnecessary and would reduce local flexibility needed to 

address unique watershed conditions. The State of California, for instance, has had an 

antidegradation policy in place since before the passage of the Clean Water Act (CWA). 

The policy, and the associated implementation guidance, have functioned well and are 

not in need of change. The USEPA can best assist states and tribes by providing 

guidance in this area.

Although Tri-TAC and CASA oppose modification of current WQS regulations 

to incorporate prescriptive implementation methods for antidegradation policies, if 

USEPA elects to do so, allowing states and tribes to set de minimus levels and allowing

the use of variances are two necessary elements of any implementation plan. The 

regulation should explicitly require states and tribes to assess and apply de minimus

levels to exempt insignificant new or increased discharges from antidegradation review. 

This is particularly crucial given the time-consuming, resource-intensive nature of the 

technical and economic analysis involved in a full antidegradation review. Moreover, 

variances are essential tools that allow states and tribes to properly and effectively apply 

their WQS, and must also be included in the revised regulation.

Designated Uses

Appropriate designated use classification remains a critical issue for municipal 

wastewater treatment plants. Section 101(a)(2) of the CWA establishes a goal, wherever 

attainable, of water quality that provides for the protection and propagation of fish, 

shellfish, wildlife, and recreation in and on the water (i.e., “fishable/swimmable” 

designated uses). The Notice indicates that USEPA may clarify the WQS regulations to 

presume that these CWA goal uses are attainable unless otherwise demonstrated. 

Tri-TAC and CASA believe that USEPA should clarify that the rebuttable presumption 

of fishable/swimmable designated uses does not restrict the discretion that states have to 

determine that fishable/swimmable uses are not, in fact, attainable in a particular case. 

While fishable/swimmable uses are goals of the CWA, the CWA explicitly states that this 

goal applies “whenever attainable,” not that it is necessarily applied everywhere. 

Currently, states often require permit-holders requesting modifications to beneficial use 

designations to overcome the presumptive applicability of uses with an overwhelmingly 

large amount of scientific evidence “proving” that there will never be an impact due to a 

single parameter in a complex, dynamic system or that future attainment of an assumed 

use is not possible. Tri-TAC and CASA request that the WQS regulations be modified to 

state that designated uses in all waters, including main stem rivers and their tributaries, 

are to be based on sound science, not generic presumptions, and must recognize that the 

resources of all stakeholders are limited. The burden of proof must be commensurate 
Thomas Gardner

Re: Docket No. EPA-HQ-OW-2010-0606

September 10, 2010

Page 4

with the reality of use and should be shared more equally among USEPA, the states and 

tribes, and permit-holders. 

Additionally, although not acknowledged in the Notice, the process to redefine or 

subcategorize beneficial uses needs improvement. Specifically, general use categories 

such as aquatic life or agriculture are often overly broad as compared to the real uses for 

specific water bodies. At a minimum the USEPA should derive alternative criteria for 

water body types such as open conveyance channels, stormwater channels, effluent 

dependent water bodies, intermittent streams, and highly ionic streams. In addition, the 

current regulatory language in 40 Code of Federal Regulations (C.F.R.) section 131.10(c)

provides authorization for the adoption of subcategories and appropriate criteria to reflect 

those refined uses. The adoption of subcategories should not require a full use 

attainability analysis (UAA) and should not require a demonstration of one of the factors 

required for downgrading a use, but should be allowed as a clarification to reflect the 

actual uses of the waterbody. Even though refined designated uses may be less inclusive 

than broad use designations, USEPA should not consider the adoption of more refined 

use descriptions to be a change in use subject to the use attainability requirements. We 

believe that this approach is consistent with previous and existing USEPA policy. This is 

an integral measure to ensure that the WQS regulations are interpreted properly, 

especially given that numerous states have inappropriately designated all unassessed 

waters as fishable/swimmable or municipal and domestic drinking water supply, and then 

requires a UAA to later remove these broad designations. Therefore, we recommend that 

the language of 40 C.F.R. sections 131.10(g) and (j) be modified to remove references to 

the need for a UAA prior to the establishment of refined use subcategories. 

Lastly, the Notice indicates that USEPA is considering clarifying that the highest 

attainable use(s) closest to a section 101(a)(2) goal use must be adopted if a CWA 

section 101(a)(2) goal use is unattainable. If USEPA were to mandate national 

consistency for designated use determinations, individual state’s decision-making 

authority would be compromised. This is contrary to the original Congressional intent of 

this CWA. See accord Miss. Comm’n on Nat’l Res. V. Costle, 625 F.2d 1269, 1272 

(5th Cir. 1980) citing H.Rep. 215, 89 th cong., 1st Sess., USCCAN 3313, 3320-23

(“Concerned that federal promulgation would discourage state plans for water quality and 

‘would place in the hands of a single Federal official the power to establish zoning 

measures over to [stet] control the use of land within watershed areas’ throughout the 

nation, Congress gave states primary authority to set water quality standards.”). 

Furthermore, it is not always clear what the “highest attainable use” would be, so it is 

imperative that this concept be clarified. For example, sometimes water quality data are 

insufficient to derive criteria for an alternative use. For these reasons, Tri-TAC and 

CASA recommend that individual states continue to be provided the authority to 

determine the appropriate alternative use designations, since they are most familiar with 

local situations and this will allow for the flexibility necessary to appropriately define a 
Thomas Gardner

Re: Docket No. EPA-HQ-OW-2010-0606

September 10, 2010

Page 5

use for a waterbody. See id. at 1275 (“The varied topographies and climates in the 

country call for varied water quality solutions.”).

Variances

The current WQS regulations allow states and tribes to adopt variances as policies 

for implementing their water quality standards. The Notice states that USEPA may 

establish regulatory requirements for variances to ensure their proper use. Tri-TAC and 

CASA are not aware of abuses in the variance process that would necessitate additional 

regulation; indeed, in California, variances have very rarely been allowed or used. 

Instead of proposing additional requirements regarding variances, USEPA should 

consider ways to streamline the process for obtaining variances, while ensuring that water 

quality protection safeguards remain in place. For example, USEPA should reduce the 

level of information that must be provided to demonstrate the need for a variance. 

USEPA should also consider allowing states flexibility in determining the length of time 

variances can apply, since this might range from as little as one year to as much as 10 to 

15 years, depending on the reason for the variance and steps identified to bring the water 

body into compliance with water quality standards. USEPA should encourage the use of 

multiple discharger variances, such as have been used in Ohio to address mercury 

discharges. 

Triennial Reviews

Under current federal regulation, states and tribes are required to review their 

water quality standards at least every three years, and modify standards or adopt new 

standards as appropriate. Tri-TAC and CASA agree with USEPA’s proposal to clarify 

that states and tribes must solicit and consider public comments in determining the scope 

of each triennial review. Furthermore, Tri-TAC and CASA believe that it is appropriate 

during the triennial reviews to evaluate whether existing water quality criteria continue to 

be protective of or are more stringent than necessary to protect designated and existing 

uses. This evaluation should be conducted as part of a comprehensive review that 

carefully examines, based on sound science, whether existing criteria are either 

inadequate or overly conservative. Unnecessarily stringent water quality standards can 

result in scarce public resources being directed toward efforts that produce little or no 

benefit. Such resources are better used on efforts that will produce actual water quality 

improvements. If water quality standards are to be based on a solid technical foundation, 

considering watershed, ecosystem, and site-specific factors, then it is essential that states 

review their water quality criteria and designated uses holistically.
Thomas Gardner

Re: Docket No. EPA-HQ-OW-2010-0606

September 10, 2010

Page 6

Thank you for the opportunity to provide input on these important issues. If you 

have any questions or require additional information, please contact Ms. Shannon Grund 

by phone at (562) 908-4288, extension 2843, or by email at sgrund@lacsd.org.

Sincerely,

Ben Horenstein, Chair

Tri-TAC

Roberta L. Larson

Director, Legal and Regulatory Affairs

CASA

RLL/mb

BH/mb

cc: USEPA Region IX, Doug Eberhardt 

SWRCB, Ken Harris