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September 2, 2010

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Thomas J. Gardner

Office of Science and Te chnology (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 Spoka ne Riverkeeper for HQ-O\V-2010-0606

Dear Mr. Gardner:

The Spokane Riverkeeper is pleased to comment on the proposed rulemaking to

revise the water quality standards (WQS) regulation, HQ-OW-2010-0606. The Spokane

Riverkeeper is a non-profit organization whi ch seeks to protect and restore the health of the

Spokane River Watershed. Generally, we believe that the WQS regulations identified by the

Proposed Rulemaking documents should be revised . However, in some instances we have

concerns as to how the regulations are being revised and have drafted comments to address

those issues.

The notice states that questions and comments are requested in six areas (A-F). We respond

as follows:

A. Antidegradatio n

Antidegradation imp lementation procedures identify the steps and questions that

must be add ressed when regulated activities are proposed that may affect water quality. As

such, we believe they are clearly standards under the existing law and that a state or tribe's

adoption or revision ofsuch methods are subject to EPA's approval under Section 303(c) of

the Clean Water Act, 33 USC § 1313(c), regardless of whether or not the state or tribe labels

the se method as standards. See Florida Public Interest Group v. EPA, 386 F. 3d 1070, 1087-

90 ( 11 th Cir. 2004)(regulatory chang es that have practical effect of changes to standards are

standards),

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We agree that it would be beneficial for EPA to require states to explicitly set forth their

implementation methods. In particular, EPA should require in its regulations that

state/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 40 I

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.

• 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.

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. 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 ifthey are too

shallow for swimming or contain pathogens that make them unsafe for full body contact.
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 ofTier 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 Deter mination

We do not believe that a rule is needed as to when the Administrator has made a

determination. Section 303(c) makes plain that Congress intended for the Administrator to

make determinations and intended to give the public the right to insist that the Administrator

promptly act on such determinations. The language requiring the Administrator to "promptly

prepare ... a revised or new water quality standard" following a determination that such as

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 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 regu lation should make clear how parties intere sted 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 revise

standard is necessary within a reasonable time, not longer than six months after the filing of

the petition .

C. Designated Uses

The law is now clear that the CWA 10I(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 regulation that, after it has been shown that 10 I(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 define d is terms ofthe health ofthe aquatic community with the "highest

attainabl e use" being the community that includes as many ofthe 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 ofthe uses that are possible given the

unavoidable limitations found to be present in the water body.
D. Variances

Some states in the past have used variances to allow pollution deemed too expensive to

immediately abate when the situation called 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 by EPA under Section 303(c) although

obviously a variance from a water quality standard is itself a change in water quality

standards.

Revised rules should make clear that a variance is only appropriate when there is something

unusual about all water body or bodies to be affected that causes it to be appropriate to allow

a variance from the usual water quality criteria. Further, the revised rule should make clear

that all variances from water quality standards must be approved by the Administrator or her

designee under Section 303(c).

E. T riennial Review

It is necessary to fulfill the goals of the Clean Water Act to fashion regulations that would

require states/tribes to allow public conunent on all ofthe states/tribes water quality

standards every three years. The public notice inviting public conunent should make clear

that the public may request revisions to all ofthe 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 comments requesting

revised or new standards and to explain why it was decided not to revise or create any

standards that it was requested that the state revise or create. Still further, persons whose

requests for revisions or new standards were denied should be able to seek review ofthat

decision as other decisions by state agencies are reviewed in the state or tribe.

F. Updates to 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 pan oftheir standards and submit them to EPA as was held in In the Maner 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 comment related should be

submitted to EPA for use in reviewing revisions to wate r quality standards under 303(c). Currently, it appears

that the states often attempt to summarize the record, but fail to include important information that was

developed in the record.

G. Other Co mments

To the extent possible, EPA must make sure that the standards that EPA approve s under 303(c) actually 2ppear

in the language ofthe 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 appro ve

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 CiT. 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

properl y adopted by the state as supported by the record developed by the state prior to its approval of the

standard.

We also ask EPA to reexami ne fish consumption rates -- the numbers used to assess impacts oftoxics on

human health are way too low and do not address tribal cons umption rates.

Mih

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