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# Minnesota Center for Environmental Advocacy

26 East Exchange Street • Suite 206 • Saint Paul, MN 55101-1667 • 651.223.5969

Submitted via email to: SHPDcomments@epa.gov

September 7, 2010

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: Comments of the Minnesota Center fo r Environmental Advocacy, EPA Docket: EPA-HQ-OW-2010-0606

Dear Mr. Gardner:

Thank you for the opportunity to submit the comme nts of the Minnesota Center for Environmental Advocacy (MCEA) regarding EPA’s proposed chang es to water quality standards regulation, HQ-OW2010-0606. MCEA is a partner in the Mississippi River Collaborative, and as such, endorses and has signed onto the comments provided by Mr. Albert Ettinge r in this matter. The comments below regarding antidegradation and triennial revi ews are provided to add detail at a finer scale based on MCEA’s experiences in Minnesota.

A. Anti-Degradation Implementation Methods

The federal register notice on this matter states that EPA is considering a requirement that states and tribes specify minimum elements to be included in antid egradation implementation methods. To the excellent list of recommended content submitted by Mr. Ettinger , MCEA would add the following items we believe EPA should require be set forth:

 The factors by which a state/tribe may exempt an expanded discharge from Tier 2 antidegradation review based on a determination that the permitted lo ad of a specified polluta nt will not increase. Based on the idea that the pollution has al ready been permitted and is not then a new or increased loading, the Minnesota Pollution Control Agency (MCEA) has issu ed an aggregate “permitt ed load” of phosphorus

### 2 triple the amount of phosphorus actually discharge d to a downstream phosphorus-impaired waterbody. MCEA does this by estimating the largest amount of p hosphorus that could concei vably have been legally discharged under the prior permit and assuming that that loading is the existing load although the existing loading is actually a fraction of this. Of course, th e loading has never gone through a Tier 2 analysis. It is absurd to pretend that allowing a tripling of phosphorus discharged will not degrade both those downstream waters already impaired, or potentially degrade immediate receiving waters that may still have an increment of high water quality (Tier 2 waters).

 The information that must be contained in an y public notice of an antidegradation review. Current practice in Minnesota is extremely lax as to what information must be provided, resulting in many cases where it is impossible to understand from an NPDES draft permit notice whether antidegradation review has even occurred, let alone any determinations or findings resulting from the

review.

 Methods by which potential water quality degrad ation or impacts will be determined in the absence of ambient monitoring data establishing the existing condition of the receiving water(s).

Minnesota has current assessments on fewer than 20% of stream miles. As a result, antidegradation reviews are generally silent on receiving water cond ition and changes to be expected if the proposed project is approved. It is, then, often impossible to determine whether the discharge will harm existing uses or the extent of the loss of assimilative cap acity that the new or increased loading will cause.



### E. Triennial Reviews

MCEA strongly endorses EPA’s proposed requirement clarifying clarify that states and tribes must solicit and consider public comments in determining the scope of each triennial review. Current practice in Minnesota is that the agency presents its pack age of standards changes to the public as a fait accompli . In

2007—the first “triennial review” in Minnesota in 7 years—MCEA requested consideration of additional changes or necessary additions to water quality sta ndards during public hearings and public comment periods. The Minnesota Pollution Control Agency object ed to, and refused to accept, sizable portions of MCEA’s comments, submissions and expert testim ony regarding the need for numeric river nutrient criteria and the inadequacy of Minnesota’s antidegradation provisions, arguing that only those portions of the WQS rule it sought to change were germane to the review. The Administrative Law Judge presiding over the public process sustained MPCA’s objecti on and excluded MCEA’s submissions because the proceeding was “not under the Clean Water Act, but rather under Minnesota Administrative Procedure.”



### MCEA recommends that states and tribes be required to make a written determination explaining any denial of a request for a new or revised wate r quality standard, and that such denial should be submitted to EPA for its review at a minimum where a petitioner can make a reasonable showing that the lack of a standard, or standa rd revision, was preventi ng protection of one or more designated use(s).

### 3 Again, thank you for the opportunity to submit these comments for your consideration in conjunction with those submitted by Mr. Etti nger on behalf of the Mississippi River

Collaborative.

Sincerely,

Kris Sigford Water Quality Director