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 Network, HOPE, Help Our Polluted Environment, 

Milwaukee Riverkeeper, Mississippi River Collaborative, National Gardens Club, Inc., Ohio 

Environmental Council, River Network, Spokane Riverkeeper Program, Tennessee Clean Water 

Network, Sierra Club and Wyoming Outdoor Council are pleased to comment on the proposed 

rulemaking to revise water quality standards regulations (HQ-OW-2010-0606). Generally, we 

agree that many of the water quality standards regulations should be revised. We believe, 

however, that in several cases the regulations should be revised differently or more extensively 

than is suggested in the briefing 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 standards 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 Group 
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v. EPA, 386 F. 3d 1070, 1087-90 (11th Cir. 2004))(regulatory changes that have practical effect 

of changes to standards are revisions to standards). The implementation methods frequently 

dictate what goes into permits and are as important in practical effect as the vague 

antidegradation standards that have 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 into water bodies should be considered as much 

a standard as the state’s statement of general antidegradation policies. Indeed, it would be absurd 

for EPA to require EPA approval of an antidegradation 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 implementation rules that significantly affect application of 

an antidegradation standard are part of the standard and must be approved by EPA, it would be 

beneficial for EPA to require states to more explicitly set forth their implementation methods. In 

particular, EPA should require in its regulations that states/tribes explicitly set forth: 

• The method for ensuring that existing uses will be maintained and protected in 

compliance with Tier 1 antidegradation requirements, 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 Tier 2 antidegradation analysis. 

• That, if a new or increased pollution loading 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 potential alternatives to the proposed new or 

increased discharge or other proposed activity that will increase pollution. 

• The factors that will be considered in determining when a proposed polluting activity will 

accommodate important social or economic development 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 antidegradation Tier 2 analysis if antidegradation is 

applicable to the decision to allow a new or increased load or explain 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. 
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• 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 application of antidegradation, EPA should revise 40 CFR 

131.12(a)(2) to make clear that Tier 2 antidegradation should be applied by states and tribes on a 

parameter-by-parameter basis. It is contrary to the basic policy 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 which it is meeting standards because it is not 

meeting standards as to another pollutant or pollutant parameter. 

Certainly the rule should at a minimum be clarified to require that state and tribal antidegradation 

rules apply Tier 2 protection to protect all water bodies that support any significant 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 support both recreation and aquatic life uses. Similarly, 

the regulations should make clear that waters that support an indigenous population of fish or 

macro-invertebrates must be given Tier 2 protections 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 language in 131.12(a)(2) describing state assurances 

to achieve all cost-effective and reasonable best management practices for nonpoint source 

control. One option would be to clarify the situations 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 131.12(a)(3) on Tier 3 protections 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 except 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 when 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 avoid 
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making determinations and the mandatory duties that flow from such determinations would not 

be consistent with the statute. 

If it is decided to create a new regulation on determinations by the Administrator under section 

303(c), the regulation should make clear how parties interested in revisions to water quality 

standards can petition the Administrator for a Section 303(c)(4)(B) determination that a new or 

revised standard is necessary. Such a rule should provide that the Administrator will grant or 

deny such a petition for a determination that a new or revised standard is necessary within a 

reasonable time, not longer than six months after the filing of the petition. 

C. Uses 

The law is now clear that the CWA 101(a)(2) “fishable swimmable” uses are presumed to be 

attainable unless otherwise demonstrated. Kansas Natural Resource Council, Inc.v. Whitman, 

255 F. Supp. 2d 1208, 1213 (D. Kan. 2003). It would, however, be useful to spell out in 40 CFR 

131.10 or other regulations that, after 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 the health of the aquatic community, with the “highest attainable 

use” being the community that includes as many of the species present and 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 recreation uses, “highest attainable use” similarly should 

include all of the uses that are possible given the unavoidable limitations 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 deemed too expensive to immediately 

abate when the situation actually calls for a compliance schedule under 40 CFR 122.47 or no 

regulatory adjustment at all. Further, some states 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 water quality standard is itself a change in water 

quality standards requiring EPA action. 

EPA should include in its revised water quality standards provisions that make 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 variance can be granted only when the criteria 

applicable to changes in use designations have been met, including specifically the provisions of 

40 CFR 131.10(g) and (h). EPA has already spelled this out in guidance applicable to the Great 

Lakes basin. (See Water Quality Guidance for the Great Lakes System, 40 CFR 132, Appendix 

F, Procedure 2). 
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Further, the regulation should be clear that "variances" are temporary changes to water quality 

standards for a particular waterbody and applicable to a particular discharger, which expire 

automatically after a fixed period of 3-5 years, and are subject to all of the same procedures as 

changes to water quality standards, including EPA approval. There should be no provision for 

variances that run with the term of the permit including any administrative extensions that should 

be allowed. (See Water Quality Guidance for the Great Lakes System, 40 CFR 132, Appendix F, 

Procedure 2). 

The regulations should be clear that variances are not to be written by permit writers but must be 

treated as standards changes to be established 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 dischargers or directed by EPA to review. In many states, these 

inconsistent practices have resulted in state 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 public notice inviting public comment should make clear that the 

public may request revisions to all of the standards 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 denied 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 request to revise standards should be submitted to 

EPA for review and approval. 
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F. Reflect Court Decisions 

Revisions in the regulations to reflect court decisions may be useful. In particular, it would be 

useful to make clear that a change in water quality standards includes any revision to a state’s 

regulation that may in effect change 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 required to set forth provisions governing compliance 

schedules as part of their 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 should also be placed into the regulations to 

clarify the now rather cryptic provisions of 40 CFR 122.47 

Finally, EPA should clarify that state or tribal records of public participation and related 

comments should be submitted to EPA for use in reviewing revisions to water quality standards 

under 303(c). Currently, it appears that states often 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 standards documents that were adopted by the state or tribe. It is 

not legal or workable for EPA to approve improper or poorly drafted standards on the basis of 

letters or other documents submitted by state or tribal 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 apply the standards in a manner that is not supported by the language 

of the standard as it was approved by the state through the proper state procedures. (See 

Kentucky Waterways Alliance v. EPA, 540 F.3d 466 (6th 2008)). 

In order to reduce the need for EPA disapprovals of state or tribal submitted standards, better 

communication is needed between states/tribes and 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 the state, as supported by the 

record developed by the state prior to its approval of the standard. 
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Thank you for your consideration of our comments. 

Sincerely, 

Albert Ettinger 

Senior Attorney, Environmental Law and Policy Center and 

Member of the Mississippi River Collaborative 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, Florida 
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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