American Rivers 

1101 14th 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 organization 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 supporters, with offices in 

Washington, DC and nationwide. We work in the areas of clean water, water supply, 

river protection and river restoration, all of which are affected by water quality standard 

regulations. Thus, we are supportive of the Administration’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 require 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 issues, these 

comments focus on how to better use Tier 3 or Outstanding Natural Resource Waters 

(ONRW) to protect our streams and rivers. 

Tier 3 waters represent a key part of the Clean Water Act’s goal to ‘protect’ our nation’s 

waters, but one that is sorely underused. This is illustrated 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 protect 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 sentiment 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 and 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 protections included a variety of characteristics 

described below. 

 

2

 See Florida Public Interest Group v. EPA, 386 F. 3d 1070, 1087-90 (11th Cir. 2004)(regulatory 

changes that have practical effect of changes to standards are standards). 

3

 See letter to Thomas Gardner from Clean Water Network (Sept. 3. 2010) recommendations 

include: 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 manner in 

which antidegradation will be applied in making decisions on proposed 401 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; 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 based on: Katherine Edmonds, Review and 

Analysis of Tier 3 Policies (unpublished MS thesis, University of Georgia, School 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 protected 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 significant 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 Carolina, 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 as 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 provide exceptional recreational, cultural, 

and ecological values.9

 These waters provide refuge for aquatic species, including 

migratory fauna and species that rely on natural flows for spawning cues. Federal wild 

and scenic rivers meet both ecologically and recreationally 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 activities, the law does not restrict any 

direct point source pollution. Providing ONRW status for Wild and Scenic Rivers would 

improve overall protection of these valuable rivers. Some states already provide these 

protections: Wisconsin, Colorado, West Virginia, Pennsylvania, and North Carolina 

automatically identify federal wild and scenic rivers 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 quality protection not otherwise afforded. 

Designation of ecologically significant waters – Ecological significance should play a 

more prominent role in Tier 3 designations given both that this is specifically included in 

EPA’s existing regulatory definition and would contribute to the CWA’s goal to protect 

biological integrity. An assessment of the endangered species in the United States found 

that the second most significant threat to endangered 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 imperiled 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 qualifier.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 Policy: 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 many endangered species are there in the 

United States? Frontiers in Ecology and the Environment: Vol. 3, No. 8, pp. 414-420. 

14 93 Pa Code § 93.4b (1999). 
4

more general attributes of ecological significant waters in listing determinations. The 

state of Louisiana, for example, includes the following 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 shall be maintained and protected.”16

The EPA Water Quality Handbook further interprets the above statement as “no new or 

increased discharges to ONRWs and no new or increased discharge to tributaries to 

ONRWs that would result in lower water quality in the 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 several 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, for instance, requires Class AA waters 

(Tier 3) to be free-flowing and natural, and Arkansas requires the natural flow regime and 

instream habitat to be maintained.19 Wyoming requires that nonpoint source pollution be 

controlled by best management practices and Minnesota addresses nonpoint source 

pollution to Tier 3 waters, stating: “the agency will prohibit or stringently control new or 

expanded discharges from either point or nonpoint sources to outstanding resource value 

waters.”20 Federal regulations should make clear that Tier 3 protection include both 

natural flow provisions and nonpoint source pollution 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 that 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. 2.203 (2007) Unfortunately Arkansas allows 

for the removal of tier 3 waters (Extraordinary Resource Water, Ecologically Sensitive 

Waterbody, or Natural and Scenic Waterway) from free 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 nominations as part of the triennial 

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

Based on the need to better protect our healthy waters, we recommend the following 

regulatory changes to establish a clear and robust use of Tier 3: 

• Federal policy should require automatic Tier 3 designation for certain waters 

including those that have been granted official protection, particularly waters 

designated Federal wild and scenic rivers, and waters within National Parks and 

wilderness areas. Waters on state protected lands should also be highly considered 

and prioritized for Tier 3 designation. 

• Criteria for ecological significance should be established and required as part of 

state policies. Because freshwater fauna are among the highest percentage of 

endangered and threatened species and rapidly declining, there should be 

guidance for designating Tier 3 waters based on ecological significance. 

• Establishment of a more expansive definition of “degradation” to include 

nonpoint source pollution and flow impairment is needed 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 minimum requirements for state 

antidegradation policy and implementation methods and make clear that both are to be 

adopted into states’ and tribes’ water quality standards 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 recommendations 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 recommended: 

 

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 standards. 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; 

• 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 request to revise standards should be 

submitted to EPA for review. 

Uses

 Although EPA has not yet specifically addressed this issue, American Rivers strongly 

urges EPA to require states develop narrative criteria for stream flow protection for all 

designated uses. Stream flow is essential to achieving 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 chemical, physical and biological quality 

of the state’s waters. The tendency of state agencies implementing the Clean Water Act 

to focus disproportionately on the chemical integrity of waterways and less so on the 

biological and physical integrity, has created a need for explicit recognition of the 

authority and responsibility to address flow to achieve these goals. 

Thank you for your consideration of these comments.

Sincerely 

Katherine Baer 

Senior Director, Clean Water Program 

American Rivers 

202-243-7053