September 10, 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 of Kentucky Waterways Alliance for HQ

- OW

- 2010

- 0606

Dear Mr. Gardner and others:

Kentucky Waterways Alliance (KWA) is a nonprofit organization de dicated to protecting and restoring Kentucky’s waterways. We wish to comment on the proposed rulemaking to revise the water quality standards regulation, HQ

- OW

- 2010

- 0606. We are a member of and endorse the comments submitted by Albert Ettinger on behalf of the Clean Water Network, the Mississippi River Collaborative and others. We will not duplicate those comments herein, but wish to add comments specifically based on our experience.

Generally, we agree that many of the water quality standards regulations that are proposed to be revised should be revised. However, in several cases we offer different language or ask that EPA consider more extensive revisions.

The notice states that qu estions and comments are requested in six areas (A

- F). We respond as follows:

A. Antidegradation

KWA has extensive experience in antidegradation implementation methods. KWA staff has been national leaders and mentors on antidegradation to many groups across the country including many groups in the Mississippi River Collaborative. Indeed we are

lead th e plaintiff in Kentucky Waterways, et al. v. Johnson, et al. the decision in the 6 th
Circuit Court of Appeals. We are still awaiting EPA’s decision on the new (2009) Kentucky regulation intended to address the 6 th Circuit remand. We believe that the new

re gulation must be set aside for a number of reasons and that EPA must write the implementation rules that the Kentucky Division of Water cannot bring itself to write.

In Kentucky, the implementation methods dictate permit limits, or lack thereof and are certainly treated as standards. Clear guidance from EPA is critical if other states are not to suffer the seemingly endless cycle of inadequate rules and court battles we have seen in Kentucky, while permits that are not sufficiently protective continue t o be issued. 120 Webster Street, Suite 2 17
Louisville, KY 40206

502

- 589

- 8008 www.KWAlliance.orgVague antidegradation regulations have led to states adopting standards that frequently do no more than mimic the federal regulations and could lead to the same litigation cycle as Kentucky has experienced.

EPA should make it clear that an implementation rule that has the effect of allowing unnecessary new loadings of pollutants into water bodies not will be allowed.

We agree that EPA should require states to more explicitly set forth their implementation methods. Our experience in Kentuc ky, suggests that the lack of detail in an implementation policy will only cause further confusion and possible litigation between EPA, the state/tribal agency, NPDES permit holders and NGOs. In particular, EPA should require in its regulations that state /tribes explicitly set forth:

**•** That all reasonable alternatives to new/increased discharge or other loading must
be considered as part of a Tier 2 antidegradation analysis.

**•** That, if a new/increased pollution loading is found necessary to accommodate
impor tant social or economic development after a Tier 2 analysis, 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.

**•** That antidegradat ion applies to proposed 401 WQ certifications and general
permits and procedures for how 401 WQC and general permits will be evaluated
to protect existing uses or levels of good water quality should be spelled out
clearly.

**•** That the state will prepare a wri tten antidegradation Tier 2 analysis explaining the

alternatives that were considered, the final decision and what the individual and
cumulative impact of the new or increased loading is on the water body. This
explanation will be made available to the pub lic as a part of the permit file.

**•** The manner and timing for the public to participate in the antidegradation review
to ensure that public participation is meaningful and effective. And that under no
circumstances will the public have less than 30 days to review and comment on
permit applications.

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 cl ear 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 meetingstandards 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

antide gradation rules apply Tier 2 protection to protect all water bodies that support any significant recreational or aquatic life uses. For example, all waters that currently support aquatic life should be covered by Tier 2 antidegradation even if it is not sa fe to consume fish from the water body in more than limited quantities. In addition, such waters support other populations of wildlife and are a critical piece of the ecosystem.

In addition, waters that may be too shallow in some places or contain too ma ny pathogens to support full body contact recreation must be protected. Many such small streams are places for children to play and wade, and given that much of nation’s pathogen data is for fecal coliform and the debate still rages as to what is the best indicator for pathogens that are dangerous for people when recreating, we cannot exclude such waters from Tier 2 protections. Finally, even what has traditionally been considered as secondary contact such as wading or boating is significant recreational ac tivity and all uses of such waters must be protected. In Kentucky, over 99% of our waters are designated as primary

contact

– and primary contact recreation remains one of the top two impairments

– and under our rules is a reason not to extend Tier 2 prot ections to waters.

If tomorrow, Kentucky declared that all of these (currently) impaired waters were only suitable for secondary contact recreation, they would suddenly have Tier 2 protections while water quality would not have improved or declined one bit. Similarly, we mus t not let the adoption of new water quality criterion (such as nitrogen, phosphorus or any other standards) impact a waterbody’s antidegradation status.

In most of Kentucky’s and indeed the nation’s waters, nonpoint sources are the primary sources of p ollution. EPA should therefore, 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.

B. Administrator’s Determination

We are not convinced that a new rule is necessary, but if one is proposed it should be clear that it cannot be applied retroactively to decisions/determinations made prior to the adoption of a new rule.

C. Uses

EPA should define “highest attainable use”, if it ha s been shown that 101(a)(2) uses are not all attainable, and the state/tribal agency must designate the “highest attainable use” closest to the “fishable/swimmable” goal. Further these uses must be examined on a regular basis and provisions for restoring full “fishable/swimmable” uses must be made clear. Uses can be impaired but still attainable and citizens should not bear the burden of proof that a use is attainable

– the presumption must be that uses are attainable and onlywhen proven under rigorous sc ientific study that they are not, should the next “highest attainable use” apply.

D. Variances

The rule should clearly state that all variances from water quality standards must submitted to EPA and approved by the Administrator or his/her designee under Section 303(c). Any compliance schedule that extends beyond the life of single NPDES permit

term should be considered a variance.

E. Triennial Review

While Kentucky has generally been fairly good at conducting triennial reviews approximately every thr ee years, within the Mississippi River Collaborative we have seen triennial review practices that have differed significantly, some follow no regular pattern. In addition, some state agencies review only selected portions of their WQS.

In Kentucky, KDOW does appear to open the entire WQS regulations for comments, however in the long standing conflict over antidegradation implementation regulations it has become apparent that other sections of water regulations in Kentucky are directly tied to the WQS and these regulations are not open for comment at the same time. Indeed the public has no effective means for proposing revisions on these regulations.

We believe it is necessary to fulfill the goals of the Clean Water Act to clearly require

states/tribes to; every three years allow public comment on all of the states/tribes water quality standards

– or lack thereof. The public notice inviting public comment should make clear that the public may request revisions to all of the standards and may request

tha t standards be created that do not currently exist for that state/tribe.

The revised regulation should require state/tribes to respond to all comments requesting revised or new standards. Finally, the full record including all comments and the agency’s response to comments must be submitted to EPA along with the newly adopted

standards.

F. Reflect Court Decisions

No comment.

G. Other Comments

To the extent possible, EPA must make sure that the standards that 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 through letters or other documents from 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 amanner that is not supported by the language of the standard as it was approved by th e

state through the proper state procedures. See Kentucky Waterways, et al. v. Johnson, et

al , 540 F.3d 466 (6 th 2008).

Thank you for your consideration of our comments as you move forward with proposed rulemaking.

Sincerely,

Judith Petersen, Exec utive Director