The September 14 th Council of State Governments Bulletin on this matter outlines 6 potential

changes in the Water Quality Standards regulation. It appears that these changes do not really to clarify or improve implementation of a Clean Water Act concept but rather redirect the decision

making authority from the States to EPA.

1.) “ Antidegradation: Changes would require that states' antidegradation implementation methods meet certain minimum standards, set by EPA, adopted into states' water quality standards and submitted to EPA for approval. ”

The current regulations specify the basic requirements for antidegradation policies in each state ’ s standards submittal. Specific details of the policies such as what is considered a de minimus change in water quality or how to measure significant degradation, however, are determined by each stat e. The proposed rule is clearly intended to replace the states ’ discretion with EPA ’ s judgment.

2.) “ Administrator's Determination: There is currently no official process that the EPA Administrator utilizes to determine if a state needs new or revise d water quality standards. Changes would require a signed determination document by the Administrator

. ”

There are currently requirements for a triennial review of the standards which is a state process that is specifically designed to answer that question. EPA ’ s function is to determine whether any new or revised standard meets the purpose and intent of the Clean

Water Act. It is not to determine whether a state “ needs ” new or revised standards.

3.) “ Uses: Current regulations do not spe cify what use, if any, must be put in place if a previous use under 101 (a)(2) under the Clean Water Act is removed following a Use Attainability Analysis. Changes would clarify that CWA goal uses are attainable unless
otherwise demonstrated, and where a use specified in 101 (a)(2) is deemed unattainable, the Highest Attainable Use (HAU) closest to the goal must be adopted. ”

There is no ambiguity in the Clean Water Act or the existing regulations concerning the designation of uses. The Act specifies goals in section 101(a)(2) and in section 303(c)(2)(A) describes the factors a state must consider when designating uses. Again the purpose for this revision is to replace each state ’ s judgment with national requirements. The current circumstance of loca lly established use designations and standards is far superior to the EPA ’ s national use designations that will be the result of this proposed regulatory change.

4.) “ Variances: There is a lack of clarity on variances, and new regulations would establish expectation for implementation. For example, placing an expiration date on variances. ”

Wyoming has recent experience with an EPA ’ s concept of variances that is completely indefensible. In its last triennial review, Wyoming adopted a provision in its s tandards that would allow a variance to e.coli criteria in circumstances where pathogen concentrations are natural in origin or otherwise unavoidable. This provision did not grant a variance on any waterbody or to any source of pollution but simply provid ed thatone may be granted after consideration of site specific information. This provision of

Wyoming ’ s standards was disapproved by EPA on the basis that “ ...it would allow for a change to the pathogen criteria without going through the standards settin g process ”

. Clarifying how variances are to be determined is a good idea.

5.) “ Triennial Review: Changes would clarify that states must solicit and consider public input in determining the scope of the review. Also, require that states consider if water quality criteria is still protective of designated uses, by taking into account new information such as recommendation from EPA. ”

The existing regulation 40 CFR 131.20 already provides for ample public participation in the

standards setting and revision process. This proposed change is closely related to item #2 above

and is intended to provide EPA stronger position to dictate a federal agenda into a state decision

making process. States already take into account changing standards set by EPA. It is

u nnecessary.