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 dedicated 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 questions 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 the plaintiff in Kentucky Waterways, et al. v. Johnson, et al. the decision in the 6th

Circuit Court of Appeals. We are still awaiting EPA’s decision on the new (2009) 

Kentucky regulation intended to address the 6th Circuit remand. We believe that the new 

regulation 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 to be issued. 

120 Webster Street, Suite 217

Louisville, KY 40206

502-589-8008

www.KWAlliance.org
Vague 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 Kentucky, 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 

important 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 antidegradation 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 written 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 public 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 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 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 safe 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 many 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 activity 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 protections 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 must 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 pollution. 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 has 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 only 
when proven under rigorous scientific 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 three 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 

that 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 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, et al. v. Johnson, et 

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

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

rulemaking. 

Sincerely,

Judith Petersen, Executive Director