TEXAS ASSOCIATION OF CLEAN YVATER AGENCIES

September 1,6,2010

Mr. Thomas J.Gardner Office of Science andTechnology (Mail Code 4305T) Office of Water U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460

RE: EPA Rulemaking Docket No. EPA-HQ-OV/-2010-0605; Revision

### to Water Quality Standards Regulation

Dear Mr. Gardner:

Please

### accept

### these comments 

## tothe Environmental Protection Agency's 

### consideration 

### of amendments 

### to the Water Quality Standards Regulation (Regulation) 

### filedon behalf

### of the Texas 

### Water Conservation Association (TWCA), 

### the Texas Association 

### of Clean Water Agencies (TACWA), and

### the Water and Environment Association 

### of Texas (WEAT). These organizations represent 

### the interests 

### of public

### water and wastewater service providers, including cities, river 

### authorities, and

### water districts, 

### throughout 

### the State 

### ofTexas. More information regarding TWCA, TACWA,

### and WEAT 

### can 

### be obtained 

### at

### their respective 

### websites

### at www.twca.orq, 

### www.tocwa.oro. and

### www.weat.orq. In

### this letter, these organizations 

### will collectively be referenced as 

### "the Coalition."

The Coalition

### fully supports 

### the EPA's efforts 

### to improve

### the effectiveness of state water quality standards 

### in order 

### to maintain 

### the chemical, physical, and biological 

### integrity of

### the nation's 

### waters. lts members look 

### forward 

### to working

### with EPA 

### in

### this endeavor. The Coalition files these comments in order 

### to provide

### their members' collective perspective on how some of the issues raised 

### by EPA's proposed rulemaking are already addressed 

### in

### the Texas 

### program. By reviewing existing program elements

### that are proven

### to work, 

### the Coalition encourages EPA

### to consider rule changes

### that protect and support these elements and maintain state 

### flexibility in 

### the implementation of water quality standards.



### The EPA has proposed consideration 

### of changes 

### to six areas 

### ofthe Water Quality Standards 

### Regulation, 

### including: 

### L) antidegradation implementation methods; 

### 2) designated uses; 3) 

### triennial review scope 

### and requirements;

## 4l variances

## to water quality standards; 5)Mr. Thomas J.Gardner

September t5,2010 Page 2



### Administrato/s determinations; and 

### 5l updating 

### the Regulation 

### to reflect court decisions. The Coalition's comments focus onthe 

### firstfour areas identified above. 

# t. Antidesradation lmplementation 

### Methods. EPA has requested 

### comment 

### on whether 

### the Regulation should be amended 

### to require implementation methods

### to be adopted by rule and 

### to specifo 

### minimum requirements. The Coalition encourages EPA

### to review 

### the approach 

### to antidegradation long ago 

### adopted by Texas 

### in

### the Texas Surface 

### Water Quality Standards (Texas Standards) 

### and Procedures 

## to lmplement 

### the Texas Surface 

### Water Quality Standards 

### (lmplementation Procedures), because

### the Texas program very clearly addresses 

### the issues 

### of
concern

### tothe EPA. The Texas Commission 

### on Environmental Quality (TCEQ hasadopted an antidegradation policy in

### the Texas Standards at 30 TexasAdministrative Code S307.5

### that not 

### only incorporates 

## the requirements 

## ofthe Regulation, 

### but also specifies implementation methods, including:



# (1) identification of agency actions 

### to which

### the policy applies; 

# lel identification of general and specific 

### implementation methods 

### for specific actions; 

# (3) discussion 

## of how fishable/swimmable 

### waters 

### are identified

### for Tier 2 revtew; 

## (41 discussion 

### of conditions 

### to be applied

### to determine degradation (such as providing a baseline 

### for water quality comparisons and discussion

### of use

### of critical conditions when assessing dissolved oxygen); 

# (5) statements 

### to be placed 

### in public notices 

### for draft permits regarding

### the results of

### the antidegradation review; 

# (6) provisions

## for public participation 

## in an antidegradation determination through 

### the State's public comment period

### for permits and contested case hearing process; 

## (71 clarification 

### of application 

### of

### the policy 

### to Total Maximum Daily Loads and Waste Load Evaluations; and 

# (8) reference 

### to more detailed procedures in its lmplementation Procedures.

These provisions in 

### the Texas Standards 

### strike an appropriate balance between establishing a framework 

### for implementation 

### ofthe antidegradation policy and ensuring 

### that the regulations 

### are 

### not overburdened

### with so much 

### detail

### that flexibility is 

## lost. This 

### list provides 

### a good example of

### the minimum elements 

### that could be required of States' antidegradation policies.

For

### Tier 

### 2 waters, 

### the lmplementation Procedures specify 

### that Tier 

### 2 review applies

## to all 

### waters

### with existing designated, 

### or presumed uses 

### of contact recreation and intermediate, 

### high

## or exceptional aquatic 

### life 

## use.l Therefore, Texas 

### automatically applies 

### Tier

### 2

## to a

t TCEQ, Proceduresto lmplement the Texas Surface Water Quality Standards,January 2003, RG-194 (Revised). These provisions are also contained inthe proposed 2010 revisions ofthe lmplementation Procedures.

26Lg Jones Road Suite C Austin, TX78745Mr. Thomas J.Gardner

September L6,2OLO Page 3



### significant number 

### of its waters based

### on uses

### alone

### without any additional 

### analysis. The analysis isapplied at 

### the time 

### of permit development on a parameter by parameter basis, and this process has worked 

### well in providing additional protection 

### to such waters.



### In considering 

### Tier 

### 3 issues 

### and 

### the designation 

## of Outstanding National Resource Waters (ONRWs), 

### the Coalition also encourages EPA

## to consider Texas' experience 

### in this area. Although Texas does 

### not identify any ONRWs 

### in its Standards, TCEQs regulations 

### do include specialwatershed rules

### for many watersheds in Texas needing specific 

### protections. These rules include 

### outright bans on discharges, 

### nutrient limits, and 

### additionaltreatment requirements 

### for discharges 

### to specific surface 

### water bodies.2 Therefore, EPA should consider 

### that States can be creative 

### in establishing special protections 

### for their sensitive watersheds 

### in ways 

### that do not require ONRW 

### designation. Amendments 

### to the Regulation should 

### not seek 

### to override 

### the State's approach 

## if it chooses 

## to use 

### more specifically 

### tailored rules, rather 

### than an ONRW designation. 

## 2. Designated 

### Uses. EPA 

### is requesting comments 

### on how

### to address 

### the issue 

### of what
uses, 

### if any, must replace a 101(aX2) use

### that is removed after an appropriate Use 

### Attainability Analysis 

### (UM). 

### lt seems 

### that oneway

### to address

### this concern is

### through

### the establishment 

### of multiple designated uses 

### in 101(aX2) use categories, as Texas has 

### done. Texas Standards already 

### identify multiple uses in its aquatic life and contact recreation 

### categories. For example, 

## for aquatic 

### life use, Texas' designations 

### include 

### minimal, limited, Intermediate, 

### high, and exceptional aquatic 

### life and oyster 

### waters.3 Contact recreation hassimilarly been categorized in

### the most recent round of Standards revisions this year

### to include primary contact recreation, secondary 

### contact recreation

## t, secondary 

### contact recreation

### 2, and 

### noncontact recreation.a Such multiple categories 

### for designated uses ensure 

### that the designations can be used 

### to make finely tuned adjustments, as necessary, using 

### UMs. 

## 3. Triennial Review Scooe 

### and Requirements. EPA

### is requesting 

### comment 

### on public participation in

### thetriennial review process. 

### lt is

### the Coalition's experience 

### that Texas hasdone 

### an excellent

## job 

## of creating 

### and working closely 

## with

## a stakeholder 

### workgroup 

## at the commencement

## of its triennial revision 

### process. The stakeholder 

### group 

### is made 

### up of representatives 

### ofthe regulated and 

### environmental communities and 

### other interested state 

### agencies. The 

### workgroup meetings have been 

### open

## to the publig and

### the minutes and materials are posted on TCECIs 

### website. This stakeholder process also includes discussion 

### of the scope 

### of 

### the review on 

### the 

### front 

### end. Coalition members, as

### well as stakeholders

### from a 

### wide spectrum 

### of public interests, have been able 

### to fully participate in

### this process. 

### lt should 

### also 

### be noted 

### that evenwhen Texas 

### is 

### not engaged 

### in a

### triennial review 

### of water quality



## ' Seee.g.30 Texas Administrative Code, Chapter 311. t 30 Tex. Admin. Code $307.7(bX3).
o30 Tex. Admin. Code 

### I 307.7(bX1).

26L9 Jones Road Suite

## C Austin, TX 78745Mr. Thomas J. Gardner

September 16, 2010 Page 4

standards, 

### it holds regular stakeholder meetings on 

### water quality management issues, including the Texas Standards and

### their implementation.s

The EPA is also considering establishing 

### a new 

### triennial review requirement 

### that states must evaluate 

### whether existing

### water quality criteria continue 

### to be 

### protective 

### of designated uses. 

### Coalition members agree, 

### and believe 

### that 

### the TCEQ successfully achieves 

### this standard 

### through 

### its current approach 

### to the triennial 

### review. The Texas approach 

### to the triennial review meets

### the EPA's standards. 

## 4. Variances 

### to the Water Qualitv 

### Standards. 

### ln its discussion

### ofthe rulemaking, EPA 

### stated concerns regarding extended variances 

### and confusion regarding 

### their 

### use. 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 anadjustment 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).6 The 

### permit contains special provisions establishing a schedule 

### for submission 

### ofthe work plan and specifies 

### the effluent limits

### that 

### will be applied 

### in

### the next permit cycle 

### ifthe permittee does not comply 

### with the requirements ofthe variance or if

### the existing standard is 

### not revised. The variance may be extended through 

### the next 

### permit cycle 

### to allowfor 

### the standards revision 

### if TCEQ 

### and EPA concur 

### that the site-specific 

### standard is

### justified by

### the completed study. However, 

### the Texas Standards specifically provide

### that if a 

### permittee is 

### not complying 

### with the conditions of

### the variance, 

### thenthe succeeding 

### permit is issued 

### with final 

### effluent limits based 

## on

## the existing standard, 

### effective immediately

### without 

## a compliance 

### period.T These procedures provide incentive 

### for permittees 

### to adhere 

### to workplan schedules so

### that variances do 

### not linger unnecessarily. 

### lf EPA believes

### that any 

### situation has extended 

### for 

### too long it can exercise control atthe 

### time of permit renewal.



### As noted 

### in these examples above, Texas, 

### and 

## it can be assumed 

### other states, 

### are already implementing methods

### that address 

### the issues raised by EPA in

### this proposed 

### rulemaking. Any 

### rules revisions 

### should 

### not seek 

### uniformity among 

### state programs 

### forthe sake 

### of uniformity alone, 

### but rather retain these existing effective approaches. In 

### addition, rules revisions should 

### allow states as much

### flexibility as possible

## to craft program details

## to meet 

### the individual challenges of each 

### state. The Coalition appreciates 

### the opportunity

### to provide these comments



## ' The TCECfs stakeholder group, the Water Quality Advisory Group, meets approximately quarterly to discuss current water quality issues. lt isopen to the public and minutes are regularly posted to the TCEQ web site. t 30 Texas Admin. Code 5307.2(dX5). 

### ' rd.
26LgJones Road Suite

## C Austin, TX78745Mr. Thomas J. Gardner

September 16,2010 Page 5

and looks 

### forward

### to continuing 

### to work wath 

### the EPA as 

### it prepares proposals 

### for changes

### to the Regulation.
Sincerely,

Carol Batterton Executive Director Water EnvironmentAssociation of Texas


## cc: fOreal Stepil€y, TCEQ Kelly Keel, TCEQ Charles Maguire, TCEQ Richard Tall*y, TACWA Randy Palach€k, TWCA

26LgJones Road Suite

## C Austir,

## il 78745