TEXAS ASSOCIATION OF CLEAN YVATER AGENCIES

September 1,6, 2010

Mr. Thomas J. Gardner

Office of Science and Technology (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 to the Environmental Protection Agency's consideration of

amendments to the Water Quality Standards Regulation (Regulation) filed on 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 of Texas. 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 of the 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 on the first four 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 to the EPA. The Texas Commission on Environmental Quality (TCEQ has adopted an

antidegradation policy in the Texas Standards at 30 Texas Administrative Code S 307.5 that not

only incorporates the requirements of the 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 of the 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, Procedures to lmplement the Texas Surface Water Quality Standards, January 2003, RG-194 (Revised).

These provisions are also contained in the proposed 2010 revisions of the lmplementation Procedures.

26Lg Jones Road Suite C Austin, TX 78745
Mr. Thomas J. Gardner

September L6,2OLO

Page 3

significant number of its waters based on uses alone without any additional analysis. The

analysis is applied 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, TCEQ s 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 one way 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 has similarly 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 the triennial review process. lt is the Coalition's experience that Texas has done

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 of the 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 even when Texas is not engaged in a triennial review of water quality

' See e.g.30 Texas Administrative Code, Chapter 311.

t 30 Tex. Admin. Code $ 307.7(bX3).

o 30 Tex. Admin. Code I 307.7(bX1).

26L9 Jones Road Suite C Austin, TX 78745
Mr. 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 of the 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 an adjustment 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 of the work plan

and specifies the effluent limits that will be applied in the next permit cycle if the permittee

does not comply with the requirements of the variance or if the existing standard is not revised.

The variance may be extended through the next permit cycle to allow for 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, then the 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 at the 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 for the 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 is open to the public and minutes are regularly posted to the TCEQ web site.

t 30 Texas Admin. Code 5 307.2(dX5).

' rd.

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Mr. 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 Environment Association of Texas

cc: fOreal Stepil€y, TCEQ

Kelly Keel, TCEQ

Charles Maguire, TCEQ

Richard Tall*y, TACWA

Randy Palach€k, TWCA

26Lg Jones Road Suite C Austir, il 78745