September 3, 2010

Thomas J. Gardner Office of Science and Technology (Mail Code 4305T) Office of Water U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW Washington, D.C. 20460 SHPDcomments@epa.gov

Re: Comments regarding HQ-OW-2010-0606 (proposed rulemaking to revise water quality standards regulations)

Dear Mr. Gardner and others:

Alliance for the Great Lakes, Amigos Bravos, Clean Water Network, Conservancy of Southwest Florida, Environmental Alliance of North Florida, Environmental Law and Policy Center, Floridians Against Incinerators in Disguise, Florida League of Conservation Voters, Friends of the Fenholloway River, Gulf Restoration Ne twork, HOPE, Help Our Polluted Environment, Milwaukee Riverkeeper, Mississippi River Colla borative, National Gardens Club, Inc., Ohio Environmental Council, River Network, Spokane Riverkeeper Program, Tennessee Clean Water Network, Sierra Club and Wyoming Outdoor C ouncil are pleased to comment on the proposed rulemaking to revise water qua lity standards regulations ( HQ-OW-2010-0606). Generally, we agree that many of the water qu ality standards regulations s hould be revised. We believe, however, that in several cases the regulations sh ould be revised differently or more extensively than is suggested in the brie fing document and other documents that were published by EPA in connection with the notice.

The notice states that questions and comments are requested in six areas (A-F). We respond as follows:

A. Antidegradation

We believe that antidegradation implementation methods are clearly stan dards under the existing law and that a state’s or tribe’s adoption or revision of such methods must be approved or disapproved by EPA under Section 303(c) of the Clean Water Act, 33 USC § 1313(c), whether or not the state or tribe labels these methods to be standards. (See Florida Public Interest Group2 v. EPA , 386 F. 3d 1070, 1087-90 (11 th Cir. 2004))(regulatory changes that have practical effect of changes to standards are re visions to standards). The imp lementation methods frequently dictate what goes into permits and are as important in practical effect as the vague antidegradation standards that ha ve been adopted in many states which frequently do no more than mimic the federal regulations. Certainly, an implementation rule that has the effect of allowing unnecessary new loadings of pollutants in to water bodies should be considered as much a standard as the state’s statement of general an tidegradation policies. In deed, it would be absurd for EPA to require EPA approval of an antidegra dation policy that simply tracked the federal regulation while allowing state adoption, without EPA review, of implementation rules that had the effect of significantly undercutting the policy.

Although the current law is clear that implementati on rules that significantly affect application of an antidegradation standard are part of the stan dard and must be approved by EPA, it would be beneficial for EPA to require states to more e xplicitly set forth their implementation methods. In particular, EPA should require in its regulations that states/t ribes explicitly set forth:

• The method for ensuring that existing uses will be maintained and protected in compliance with Tier 1 antidegradation requir ements, especially from impairments that are not directly linked to water quality changes.

• That all reasonable alternatives to the new or increased discharge or other loading must be considered as part of a Ti er 2 antidegradation analysis.

• That, if a new or increased pollution load ing is found necessary to accommodate important social or economic development after a Tier 2 analysis, that the least polluting reasonable alternative must be used and permit limits will be set based on the discharges that would be expected from use of the least polluting alternative.

• The procedures for determining the potenti al alternatives to the proposed new or increased discharge or other proposed activity that will increase pollution.

• The factors that will be considered in dete rmining when a proposed polluting activity will accommodate important social or economic de velopment and the method for making that Tier 2 determination.

• The manner in which antidegradation will be applied in making decisions on proposed 401 certifications and general permits.

• That the state will prepare a written antidegrada tion Tier 2 analysis if antidegradation is applicable to the decision to allow a new or increased load or expl ain in writing why the new or increased loading fits within an exception to Tier 2 antidegradation requirements if the state/tribe finds that such an exception is applicable.3 • The manner and timing for the public to participate in the antidegradation review to ensure that public participation is meaningful and effective.

In addition, we believe that 40 CFR 131.12 should be clarified and improved in a number of

areas:
First, based on its experience in applicati on of antidegradation, EP A should revise 40 CFR 131.12(a)(2) to make clear that Tier 2 antidegradati on should be applied by states and tribes on a parameter-by-parameter basis. It is contrary to the basic po licy of the Clean Water Act to “restore and maintain ... the Nation’s waters ” (33 USC §1251(a)) to allow a water body to be unnecessarily degraded as to a pollutant for wh ich it is meeting standards because it is not meeting standards as to another po llutant or pollutant parameter.

Certainly the rule should at a minimum be clarifie d to require that state and tribal antidegradation rules apply Tier 2 protection to protect all water bodies that support any signifi cant recreational and aquatic life uses. For example, all waters that currently support sport fishing should be covered by Tier 2 antidegradation, even if it is not safe to consume fish from the water body in more than limited quantities. Such waters suppor t both recreation and aquatic life uses. Similarly, the regulations should make clear that waters th at support an indigenous population of fish or macro-invertebrates must be given Tier 2 protec tions because they support wildlife and nature study even if they are too shallow for swimming or contain pathogens that make them unsafe for full body contact.

Second, EPA should revise and clarify the langua ge in 131.12(a)(2) describing state assurances to achieve all cost-effective and reasonable be st management practices for nonpoint source control. One option would be to clarify the situ ations in which point source dischargers may work with sources of nonpoint pollution to avoid degradation and achieve overall water quality improvements in the watershed.

Further, more direction is needed in 40 CFR 13 1.12(a)(3) on Tier 3 prot ections and procedures for designation. Revised regulations should make clear that citizens must be allowed to petition for designation of Tier 3 water bodies. Further, it should be made clear that no new pollution will be allowed into waters designated as Tier 3 ex cept for pollution that will be undetectable no longer than a month after the loading is allowed.

B. Administrator’s Determination

We do not believe that a rule is needed as to wh en the Administrator has made a determination. The CWA provision requiring the Administrator to “promptly prepare ... a revised or new water quality standard” following a determination that such a standard was needed, 33 USC §1313(c)(4), clearly evidences an intent by Congress that the Administrator will make determinations and act on them. Creating a rule that would allow the Administrator to avoid4 making determinations and the mandatory duties th at flow from such determinations would not be consistent with the statute.

If it is decided to create a new regulation on de terminations by the Admi nistrator under section 303(c), the regulation should make clear how parties inte rested in revisions to water quality standards can petition the Administrator for a S ection 303(c)(4)(B) determ ination that a new or revised standard is necessary. Such a rule s hould provide that the Administrator will grant or deny such a petition for a determination that a ne w or revised standard is necessary within a reasonable time, not longer than six mont hs after the filing of the petition.

C. Uses

The law is now clear that the CWA 101(a)(2) “f ishable swimmable” uses are presumed to be attainable unless otherwise demonstrated. Ka nsas Natural Resource Council, Inc.v. Whitman

, 255 F. Supp. 2d 1208, 1213 (D. Kan. 2003). It would, how ever, be useful to spell out in 40 CFR 131.10 or other regulations that, afte r it has been shown that 101(a)(2 ) uses are not all attainable, the relevant state or tribe must designate the “highest attainable use” closest to the goal.

It will, of course, be necessary to define “highest attainable use.” As to aquatic life uses, this should be defined in terms of th e health of the aquati c community, with the “highest attainable use” being the community that includes as many of the species present a nd healthy as could be expected to be in the water body given the limitations of the water body found to be unavoidable in the use attainability analysis. As to recreatio n uses, “highest attainable use” similarly should include all of the uses that ar e possible given the unavoidable lim itations found to be present in the water body. For example, water bodies too shallow for swimming may be appropriate for wading or child’s play.

D. Variances

Some states have been using variances to allow pollution deem ed too expensive to immediately abate when the situation actually calls fo r a compliance schedule under 40 CFR 122.47 or no regulatory adjustment at all. Further, some st ates have failed to present variances from water quality standards for approval or disapproval by EPA under Section 303(c), although EPA has made clear, and we agree, that a variance from a wa ter quality standard is itself a change in water quality standards requ iring EPA action.

EPA should include in its revised water quality st andards provisions that ma ke clear the criteria for states to issue, and EPA to approve, a variance. Specifically, the regulation should codify the rule, as per current EPA guidance, that a va riance can be granted only when the criteria applicable to changes in use designations have b een met, including specifically the provisions of 40 CFR 131.10(g) and (h). EPA has already spelled this out in guidance a pplicable to the Great Lakes basin. (See Water Quality Guidance for the Great Lakes System, 40 CFR 132, Appendix F, Procedure 2).5 Further, the regulation should be clear that "var iances" are temporary changes to water quality standards for a particular water body and applicable to a partic ular discharger, which expire automatically after a fixed period of 3-5 years, a nd are subject to all of the same procedures as changes to water quality standa rds, including EPA approval. There should be no provision for variances that run with the term of the permit including any admini strative extensions that should be allowed. (See Water Quality Guidance for th e Great Lakes System, 40 CFR 132, Appendix F, Procedure 2).

The regulations should be clear th at variances are not to be writt en by permit writers but must be treated as standards changes to be establis hed under state standards-setting processes and presented to EPA under 303(c). Finally, variances should be closer in their outcomes to compliance schedules; sources with variances should be required to reduce pollution loads to the extent technologically and economically possible in order that the variances, even if reissued, are truly temporary in nature.

E. Triennial Review

Triennial review practices have differed widely among states. While a few states attempt to review at least a few of their standards every three years or so, many states follow no regular pattern. Some state standard setting agencies only review the particular chemical standards that they are pressured by discha rgers or directed by EPA to review. In many states, these inconsistent practices have resulted in stat e water quality standards escaping any kind of consistent periodic review, in conflict with the clear intent of the Clean Water Act.

Accordingly, it is necessary to fulfill the goals of the Clean Water Act to fashion regulations that would require states/tribes every three years to allow public comment on all of the states’/tribes’ water quality standards. The publ ic notice inviting public commen t should make clear that the public may request revisions to all of the standard s and may request that standards be created that do not currently exist for that state/tribe.

The revised regulation should require states/tribes to respond to comments requesting revised or new standards and explain why it was decided not to revise or create any standards that it was requested by a member of the public that the state revise or create. Still further, persons whose requests for revisions or new standards were deni ed should be able to seek review of that decision as other decisions by state agencies are reviewed in the state or tribe. Finally, the determination by a state or tribe to deny any requ est to revise standards should be submitted to EPA for review and approval.6 F. Reflect Court Decisions

Revisions in the regulations to reflect court decisions may be us eful. In particular, it would be useful to make clear that a cha nge in water quality standards in cludes any revision to a state’s regulation that may in effect cha nge the water quality based effluent limits in permits or that may in effect lead to a change in the waters that are listed under Section 303(d ). This is required by Florida Public Interest Group , 386 F.3d at 1087-90.

Further, we agree that states should be requi red to set forth provisions governing compliance schedules as part of th eir standards and submit them to EPA as was held in In the Matter of Starkist Caribe, Inc. 3 E.A.D. 172 (1990). Further, the elements of the May 10, 2007 memo by James A. Hanlon regarding compliance schedules s hould also be placed in to the regulations to clarify the now rather cryp tic provisions of 40 CFR 122.47

Finally, EPA should clarify that state or tribal records of public part icipation and related comments should be submitted to EPA for use in re viewing revisions to water quality standards under 303(c). Currently, it appears that states ofte n attempt to summarize the record, but fail to include important information that was developed in the record.

G. Other Comments

To the extent possible, EPA must ensure that the standards EPA approves under 303(c) actually appear in the language of the stan dards documents that were adopted by the state or tribe. It is not legal or workable for EPA to approve improp er or poorly drafted standards on the basis of letters or other documents submitted by state or trib al authorities that purport to clarify vague or improper state regulatory language . Certainly, EPA cannot approve standards based on promises by the state/tribe that it will a pply the standards in a manner that is not sup ported by the language of the standard as it was approved by the st ate through the proper state procedures. (See Kentucky Waterways Alliance v. EPA , 540 F.3d 466 (6 th 2008)).

In order to reduce the need for EPA disapprovals of state or tribal submitted standards, better communication is needed between states/tribes a nd EPA to assure that the language adopted by the states is approvable by EPA. Further, revised regulations should make clear that EPA can only approve a standard based on the language properly adopted by th e state, as supported by the record developed by the state prior to its approval of the standard.7 Thank you for your consider ation of our comments.

Sincerely,

Albert Ettinger Senior Attorney, Environmenta l Law and Policy Center and Member of the Mississippi River Colla borative Nutrient Standards Work Group

Organizations joining this letter include:

Todd Ambs President River Network Portland, Oregon Susie Caplowe Director Floridians Against Incinerators in Disguise Tallahassee, Florida

Rick Causey Chair Environmental Alliance of North Florida Perry, Florida Rachel Conn Policy Analyst Amigos Bravos Taos, New Mexico

Keith Dimoff Executive Director Ohio Environmental Council Columbus, Ohio Rebecca Edwards Chair Friends of the Fenholloway River Perry, Florida

Rick Eichstaedt Spokane Riverkeeper Program Director/Attorney Spokane Riverkeeper Spokane, Washington Joy Towles Ezell Chair Florida League of Conservation Voters Perry, Florida

Ted Ezell Chair HOPE, Help Our Polluted Environment Perry, Florida Jennifer Hecker Director of Natural Resource Policy Conservancy of Southwest Florida Naples, Florida8 Marion Hilliard Legislation Chairman, Deep South Region National Gardens Club, Inc. Jacksonville, Florida Ed Hopkins Sierra Club Director of Environmental Quality Washington, DC

Steve Jones Watershed Protection Attorney Wyoming Outdoor Council Lander, Wyoming Cheryl Nenn Riverkeeper Milwaukee Riverkeeper Milwaukee, Wisconsin

Natalie Roy Executive Director Clean Water Network Washington, DC Cynthia Sarthou Executive Director Gulf Restoration Network New Orleans, Louisiana

Lyman Welch Manager, Water Quality Program Alliance for the Great Lakes Chicago, Illinois Dana Wright Director of Policy and Legislative Affairs Tennessee Clean Water Network Knoxville, Tennessee