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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 for Environmental Advocacy, EPA Docket:

EPA-HQ-OW-2010-0606

Dear Mr. Gardner:

Thank you for the opportunity to submit the comments of the Minnesota Center for Environmental 

Advocacy (MCEA) regarding EPA’s proposed changes 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 Ettinger in this matter. The comments below regarding 

antidegradation and triennial reviews 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 antidegradation 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 load of a specified pollutant will not increase. Based 

on the idea that the pollution has already been permitted and is not then a new or increased loading, the 

Minnesota Pollution Control Agency (MCEA) has issued an aggregate “permitted load” of phosphorus 
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triple the amount of phosphorus actually discharged to a downstream phosphorus-impaired waterbody. 

MCEA does this by estimating the largest amount of phosphorus that could conceivably 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, the 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 any 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 degradation 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 condition 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 capacity 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 package 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 standards during public hearings and public comment 

periods. The Minnesota Pollution Control Agency objected to, and refused to accept, sizable portions of 

MCEA’s comments, submissions and expert testimony 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 objection 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 water 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 standard revision, was preventing protection of one or 

more designated use(s).
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Again, thank you for the opportunity to submit these comments for your consideration in 

conjunction with those submitted by Mr. Ettinger on behalf of the Mississippi River 

Collaborative. 

Sincerely,

Kris Sigford

Water Quality Director