American Rivers

1101 14 th St. NW

Suite 1400 Washington DC 20005

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

September 10, 2010

RE – Comments on Proposed Changes to Water Quality Standards (Docket # EPA-HQ-OW-2010-060 )

Submitted via email

Dear Mr. Gardner:

American Rivers is a national river conservation or ganization that works to protect and restore America's rivers for the benefit of people, wildlife, and nature. Founded in 1973, American Rivers has more than 65,000 members and su pporters, with offices in Washington, DC and nationwide. We work in the areas of clean water, water supply, river protection and river restoration, all of whic h are affected by water quality standard regulations. Thus, we are supportive of the Adminis tration’s effort to improve water quality standards through this targeted rulemaking. 1 These comments detail our specific

recommendations.

Antidegradation

In general, we support the Environmental Protection Agency’s (EPA) proposal to improve antidegradation implementation policies. It should be clear that such policies are

1 75 Fed. Reg 44930 (July 30, 2010).2

part of a state’s water quality standards that requ ire EPA review and approval. 2 We adopt by reference the recommendations made by the Clean Water Network for improvements to Tier 1 and Tier 2 policies. 3 While antidegardation covers a wide range of issu es, these

comments focus on how to better use Tier 3 or Outst anding Natural Resource Waters (ONRW) to protect our streams and rivers.

Tier 3 waters represent a key part of the Clean Wat er Act’s goal to ‘protect’ our nation’s waters, but one that is sorely underused. This is i llustrated by the fact that currently only 27 states have waters designated as Tier 3, and of those, some states only have one or two waters designated. 4 Federal policy in this area remains too vague and must be improved to provide impetus for states to designate and prot ect Tier 3 waters. In many cases, Tier 3 designations are poorly defined and underutilized, resulting in a missed opportunity to protect high quality and outstanding waters. This s entiment is supported by EPA’s recently released “Coming Together for Clean Water Strategy,” which lists strengthening Tier 3 provisions as part of an increased focus on keeping waters healthy. 5

New federal regulations should provide a clearer an d encompassing policy to make robust use of Tier 3 protections afforded under the Clean Water Act. Examples from states and regions that have made good use of Tier 3 can provide models to inform federal policy. States with strong Tier 3 protectio ns included a variety of characteristics

described below.

2 See Florida Public Interest Group v. EPA , 386 F. 3d 1070, 1087-90 (11 th Cir. 2004)(regulatory changes that have practical effect of changes to st andards are standards).

3 See letter to Thomas Gardner from Clean Water Netw ork (Sept. 3. 2010) recommendations include: method for ensuring that existing uses wil l be maintained and protected in compliance with Tier 1 antidegradation requirements, especiall y from impairments that are not directly linked to water quality changes; that all reasonable alter natives 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 a ccommodate 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 discharg es that would be expected from use of the least polluting alternative; the procedures for determini ng the potential alternatives to the proposed new or increased discharge or other proposed activi ty that will increase pollution; the manner in which antidegradation will be applied in making dec isions on proposed 401 certifications and general permits; that the state will prepare a writ ten antidegradation Tier 2 analysis if antidegradation is applicable to the decision to al low a new or increased load or explain in writing why the new or increased loading fits within an exc eption to Tier 2 antidegradation requirements if the state/tribe finds that such an exception is applicable; and the manner and timing for the public to participate in the antidegradation review to ensure that public participation is meaningful and effective.

4 The Tier 3 analysis referenced in this letter is b ased on: Katherine Edmonds, Review and Analysis of Tier 3 Policies (unpublished MS thesis, University of Georgia, Sch ool of Ecology, July 2010).

5 U.S. EPA, Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water

, Public Discussion Draft (Aug. 2010).3

Protection of waters within federal and state prote cted lands – EPA specifically identifies “waters of National and State parks and wildlife refuges” as waters appropriate for ONRW designation. 6 These waters lie within environmentally significa nt land that the nation has preserved for future generations. It is only logical to take the next step to protect the waters within these lands. North Caroli na, for example, designates waters within wilderness areas and special trout waters as Tier 3. 7 Ten states automatically designate waters that fall within categories such a s wilderness areas, national forests, and state and national parks as Tier 3. 8

Protection of federal and state designated Wild and Scenic Rivers – The Wild and Scenic Rivers Act was designed to preserve rivers that pro vide exceptional recreational, cultural, and ecological values. 9 These waters provide refuge for aquatic species, including migratory fauna and species that rely on natural fl ows for spawning cues. Federal wild and scenic rivers meet both ecologically and recrea tionally significant criteria under the federal antidegradation definition of ONRW. 10 While the WSRA keeps rivers in a freeflowing state and helps restrict harmful land-use a ctivities, the law does not restrict any direct point source pollution. Providing ONRW statu s for Wild and Scenic Rivers would improve overall protection of these valuable rivers . Some states already provide these protections: Wisconsin, Colorado, West Virginia, Pe nnsylvania, and North Carolina automatically identify federal wild and scenic rive rs as ONRWs, for a total of 17 rivers. 11
Additionally, Minnesota, Wisconsin, North Carolina and Louisiana all provide their state scenic waters with Tier 3 protection. 12 EPA should protect these specially designated waters by providing them with additional water qual ity protection not otherwise afforded.

Designation of ecologically significant waters – Ecological significance should play a more prominent role in Tier 3 designations given bo th that this is specifically included in EPA’s existing regulatory definition and would cont ribute to the CWA’s goal to protect biological integrity. An assessment of the endange red species in the United States found that the second most significant threat to endanger ed aquatic species was pollution from both point and non-point source pollution. 13 In the face of climate change and population growth, these species will only experience greater stress from increased pollution, water extraction, and effects of drought. Protection of i mperiled fauna from water pollution via state antidegradation policy is therefore critical. Pennsylvania lists waters as tier 3 that score at least 92% on a biological assessment quali fier. 14 Some states simply include

6 40 CFR § 131.12(a)(3).

7 15A N.C. Admin. Code 02B .0225 (2007).

8 See note 4.

9 16 U.S.C.A. § 1271 (2010).

10 N. Ross, Tier III of the Clean Water Act's Antidegradation P olicy: How Recent Modifications to Arkansas' Regulation 2 Violates Existing Policy, and why a Stronger Federal Policy is Needed, George Washington Univ. Law School (2008).

11 See note 4.

12 Id

. 13 David S. Wilcove, Lawrence L. Master (2005) How ma ny endangered species are there in the United States? Frontiers in Ecology and the Environ ment: Vol. 3, No. 8, pp. 414-420.

14 93 Pa Code § 93.4b (1999).4

more general attributes of ecological significant w aters in listing determinations. The state of Louisiana, for example, includes the follo wing ecological characteristics in the designation criteria for Tier 3 protection: “highly diverse or unique instream and/or riparian habitat, high species diversity, balanced trophic structure, or unique species.” 15

Broader definition of “degradation” – Antidegradation protections must encompass nonpoint source pollution and flow impairments. The federal guidance concerning degradation of ONRWs states that “water quality sha ll be maintained and protected.” 16
The EPA Water Quality Handbook further interprets t he above statement as “no new or increased discharges to ONRWs and no new or increas ed discharge to tributaries to ONRWs that would result in lower water quality in t he ONRWs.” 17 Both of these definitions of degradation are too narrow and leave too much to state interpretation. The 1998 Advanced Notice of Proposed Rule Making (ANPRM ) for potential revisions to water quality standards regulations identified seve ral shortcomings of antidegradation policy including that nonpoint source pollution and flow alteration were only variously addressed by state policies. 18

Some states do address these impairments. Maine, fo r instance, requires Class AA waters (Tier 3) to be free-flowing and natural, and Arkans as requires the natural flow regime and

instream habitat to be maintained. 19 Wyoming requires that nonpoint source pollution b e controlled by best management practices and Minneso ta addresses nonpoint source pollution to Tier 3 waters, stating: “the agency wi ll prohibit or stringently control new or expanded discharges from either point or nonpoint s ources to outstanding resource value

waters.” 20 Federal regulations should make clear that Tier 3 protection include both natural flow provisions and nonpoint source polluti on restrictions in all states.

Accessible public nomination policy – The public should be able to nominate ONRWs and receive a timely response from the appropriate agency. Washington State recently passed comprehensive antidegradation regulations th at require the state Department of Ecology to respond within 60 days to petitions. If the waters do meet the criteria the department must schedule a review of the nomination , which includes input from communities potentially affected by the listing. 21 Nominating via the triennial review process is another option. New Mexico and Kentucky are two states that recently added

15 La. Admin. Code 33, Part IX §1111 (2007).

16 40 CFR § 131.12(a)(3).

17 Environmental Protection Agency, Water Quality Standards Handbook § 4.2 (2nd Ed.1994)

18 Advanced Notice of Proposed Rulemaking, Water Quality Standards Regulation, 63 Fed. Reg. 36742, 36780 (1998).

19 Me. Rev. Stat. Ann. 38 § 465 (2005); Ark. Reg. 2.2 03 (2007) Unfortunately Arkansas allows for the removal of tier 3 waters (Extraordinary Res ource Water, Ecologically Sensitive Waterbody, or Natural and Scenic Waterway) from fre e flowing condition to construct reservoirs for public water supply.

20 Wyoming Surface Water Quality Standards. Chapter 1 § 4(a), Minn. R. 7050.0180 (2007).

21 Wash. Admin. Code 173-201A-330 3(a) (2003).5

waters under Tier 3 protection pursuant to public n ominations as part of the triennial

review. 22 Currently, 30 states have some sort of public nom ination process. 23

Based on the need to better protect our healthy wat ers, we recommend the following regulatory changes to establish a clear and robust use of Tier 3:

• Federal policy should require automatic Tier 3 desi gnation for certain waters including those that have been granted official pro tection, particularly waters designated Federal wild and scenic rivers, and wate rs within National Parks and wilderness areas. Waters on state protected lands s hould also be highly considered and prioritized for Tier 3 designation.

• Criteria for ecological significance should be esta blished and required as part of state policies. Because freshwater fauna are among the highest percentage of endangered and threatened species and rapidly decli ning, there should be guidance for designating Tier 3 waters based on eco logical significance.

• Establishment of a more expansive definition of “de gradation” to include nonpoint source pollution and flow impairment is ne eded to truly protect high quality waters.

• Creation of an accessible public nomination process for designating waters that includes a mandatory response time from the agency receiving petitions in all

states.

We urge EPA to integrate these proposals into minim um requirements for state antidegradation policy and implementation methods a nd make clear that both are to be adopted into states’ and tribes’ water quality stan dards subject to EPA review and approval.

Triennial Review

American Rivers strongly supports EPA’s proposal to strengthen the triennial review process by requiring solicitation of public input. Ensuring that state triennial review processes allow adequate time to fully consider and act on recommendations from the public is essential. We adopt the comments and reco mmendations made by the Clean Water Network on this topic that noted the extreme variability between states in the timing and substance of their reviews and recommend ed:

22 Amigos Bravos. Outstanding National Resource Water

. www.amigosbravos.org/onrw.php Accessed April 27, 2010. During New Mexico’s recent triennial review, Amigos Bravos

nominated the Río Santa Barbara for ONRW status and in 2004 New Mexico designated its first ONRW; and Kentucky Waterways Alliance. Outstanding Natural Resource Waters. www.kwalliance.org Accessed April 27, 2010. 401 Ky Admin. Regs 10:030 (2008).

23 See note 4.6

• New regulations should require states/tribes every three years to allow public comment on all of the states/tribes water quality s tandards. The public notice inviting public comment should make clear that the public may request revisions to all of the standards and may request that standa rds be created that do not currently exist for that state/tribe;

• Revised regulations 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. Any determination by a state or tribe to deny any reque st to revise standards should be

submitted to EPA for review.

Uses

Although EPA has not yet specifically addressed th is issue, American Rivers strongly urges EPA to require states develop narrative crite ria for stream flow protection for all designated uses. Stream flow is essential to achiev ing water quality standards for all designated uses including aquatic life, primary and secondary recreation, drinking water, and industrial and agricultural water use. Flow is fundamental to achieving the goals of the Clean Water Act to protect and restore the chem ical, physical and biological quality of the state’s waters. The tendency of state agenci es implementing the Clean Water Act to focus disproportionately on the chemical integri ty of waterways and less so on the biological and physical integrity, has created a ne ed for explicit recognition of the authority and responsibility to address flow to ach ieve these goals.

Thank you for your consideration of these comments.

Sincerely

Katherine Baer Senior Director, Clean Water Program

American Rivers

202-243-7053