CHAPTER 2 

Issue Category: Antidegradation

Pages 2-566 – 2-966

Response to Public Comments

Water Quality Standards Regulatory Revisions

August 2015

40 CFR Part 131

Docket #: EPA-HQ-OW-2010-0606

This document is part of a larger document.
Chapter 2 - Comment Documents Antidegradation 

7 - ANTIDEGRADATION 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

7.A - ANTIDEG - GEN SUPP 

Comment ID 0122-A1.001.002 

Author Name: Araujo Jaeleen 

Organization: Sealaska Corporation 

Sealaska welcomes EPA's efforts to add both clarity and flexibility to the anti-degradation review process, and we 

believe that, in the proposed rules themselves, EPA has substantially succeeded in that regard. [FN1] Our specific 

comments are as follows: 

[FN1] Sealaska does have considerable concern with the apparent effort to establish supplemental rules in the 

proposal's Preamble. That concern is discussed below. 

Response 

For response to this comment, see the following response essay(s): 

7.a 

Comment ID 0123-A1.001.011 

Author Name: Chin Ryan 

Organization: NA 

Antidegradation Implementation 

EPA's proposal to clarify the options to states and tribes in identifying Tier 2 high quality waters, clarifying that states 

and tribes must conduct an alternatives analysis when authorizing limited degradation of high quality waters, and 

specifying that states and tribes must develop and make available to the public implementation methods for their 

antidegradation policies, are important steps in protecting and maintaining high quality waters. Since Congress 

expressly states that for quality of waters that equal or exceeds levels necessary to protect the designated use for such 

waters or required by WQS, any revision to the water is only allowed if the revision is subject and consistent to an 

antidegradtion policy established under 33 U.S.C. 1313 (d) (4) (B). High quality waters are a precious resource and a 

limited one that we possess, and given the beneficial use due to the support to aquatic life, recreation, having unique 

and significant ecologies, they should be protected as much as possible. In this instance, the protection is warranted for 

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high quality waters, because maintenance and prevention of the water's degradation will likely prove to be more cost 

efficient than allowing the high quality water to be degraded and then using restoration methods to try to restore the 

now-degraded water body into its standard of being a high quality water. This is also consistent with the overall intent 

and purpose of the CWA outlined by Congress, which is that the objective is "to restore and maintain the chemical, 

physical, and biological integrity of the Nation's waters." Given that number of waters that are impaired are significant, 

such as almost two-thirds of the U.S.' Lakes, Reservoirs, and Ponds are impaired (see Watershed Assessment, 

Tracking & Environmental Results at 

http://ofmpub.epa.gov/waters10/attains_nation_cy.control#STREAM/CREEK/RIVER), it is important to use available 

methods such as antidegradation policies to preserve the high quality waters from becoming impaired. Since EPA has 

stated within its proposed rulemaking that "high quality waters may be jeopardized if states and tribes do not consider 

the long-term consequences of lowering water quality" (Federal Register / Vol. 78, No. 171 / at pg. 54526), it is 

important that states and tribes be required to weigh the long-term effects and to seek out if any other possible 

alternatives exist that would result in reducing the increased pollution. 

Response 

For response to this comment, see the following response essay(s): 

7.a 

Comment ID 0199-A1.001.009 

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 

4) Antidegradation Implementation 

EPA is proposing multiple changes to regulations at 40 CFR § 131.12 regarding implementation of antidegradation 

requirements. Under the antidegradation program, states and tribes must maintain and protect high quality waters 

"unless the state or authorized tribe finds that 'allowing lower water quality is necessary' to accommodate 'important 

economic or social development in the area in which the waters are located,' a process hereby referred to as 'Tier 2 

review.'" [FN7] EPA's proposed changes include revisions to regulations for identification of Tier 2 high quality waters, 

alternatives analyses, and implementation methods. 

We appreciate and support EPA's efforts to improve the Tier 2 review process because the current Tier 2 process 

frequently fails to protect high quality waters. We offer several comments below for improving the antidegradation 

implementation changes. 

[FN7] Id. at 54,526. 

Response 

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For response to this comment, see the following response essay(s): 

7.a 

Comment ID 0249-A2.001.009 

Author Name: Calamita F. Paul 

Organization: General Counsel on behalf of The Wet Weather Partnership et al. 

4. Antidegradation Implementation 

As an initial matter, we note that EPA has correctly referred to the states' primary role in developing and implementing 

water quality standards under CWA section 303, including the third component of standards, after designated uses and 

criteria - antidegradation. See 78 Fed. Reg. at 54529 ("EPA acknowledges the primary role of [the] states . . . in 

establishing and implementing water quality standards"). Because the CWA carefully and explicitly carves out water 

quality standards for the states, the Agency's proposal has for the most part carefully and correctly not intruded on the 

specifics of antidegradation implementation. 

Response 

For response to this comment, see the following response essay(s): 

7.a 

3.a 

7.B - ANTIDEG - GEN OPP 

Comment ID 0119-A1.001.007 

Author Name: Lemke Lee 

Organization: Georgia Mining Association 

The basis of the proposed increases in the stringency of longstanding antidegradation requirements is unsupported with 

the faulty assumptions (78 FR 54526, col. 2 and 3) that the nation's water quality is declining as a result of an 

"increasing degree of stress from anthropogenic influences." While no direct support for this claim is provided, EPA 

implies that current antidegradation policies must be ineffective since the "number of waters that are identified as 

impaired continues to grow". This logic presumes that more designated impairment automatically means that water 

quality is declining, a conclusion that GMA rejects. In fact, tremendous progress has been made under current 

antidegradation policies over the last 30 years. If anything, the increase in §303(d) listings is an indication that states 

have intensified their efforts to improve water quality through implementation of additional control requirements such as 

TMDL's where necessary. EPA gives credence to this position with its assertion (78 FR 54527, col. 2) that "individual 

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Section 303(d) listings can be a potentially poor indicator of the overall quality of a surface water..." 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section G 

Comment ID 0128-A1.001.008 

Author Name: Boon Richard 

Organization: California Stormwater Quality Association 

Recommendation: Remove all modifications to 131.12 proposed in the rulemaking. If all requirements are not removed, 

at a minimum section 131.12(b)(2) should be deleted. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section B 

7.b: Section C 

7.b: Section D 

7.b: Section E 

7.b: Section F 

7.b: Section G 

7.b: Section H 

7.b: Section I 

7.b: Section J 

7.e.ii 

Comment ID 0133-A2.001.010 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

d. LDEQ believes that the rule should not be imposing additional implementation requirements for antidegradation 

because: 

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i. These procedures are already evaluated by EPA with their approval of agency's Water Quality Management Plan or in 

the proposed antidegradation rule which has or will undergo EPA review. 

ii. There should be no additional requirements for putting implementation of antidegradation into the water quality 

standards (beyond the proposed rule). Implementation has been typically been handled in the Water Quality 

Management Plan, not the standards themselves (proposed rule withstanding). 

iii. The Clean Water Act is sufficiently protected with the current regulations and proposed rule. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section C 

7.b: Section D 

7.f.i 

Comment ID 0149-A2.001.006 

Author Name: Michael Gene 

Organization: City of Pueblo Wastewater Department 

2. Antidegradation. 

EPA stated that its intent in promulgating the Proposed Rule is to provide "improved regulatory clarity and more 

effective program implementation." 78 Fed. Reg. 54518, 54521 (Sept. 4, 2013). However, EPA's proposed revisions to 

the antidegradation rule are not a "clarification" as was the stated intent of EPA's draft rule. Instead, the Proposed Rule 

represents a radical revision of established law regarding antidegradation requirements. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section F 

Comment ID 0160-A2.001.008 

Author Name: West Jeff 

Organization: Xcel Energy 

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2. Antidegradation. 

EPA stated that its intent in promulgating the Proposed Rule is to provide "improved regulatory clarity and more 

effective program implementation." 78 Fed. Reg. 54518, 54521 (Sept. 4, 2013). However, EPA's proposed revisions to 

the antidegradation rule are not a "clarification". Instead, the Proposed Rule represents a radical revision of established 

law regarding antidegradation requirements. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section F 

Comment ID 0175-A1.001.015 

Author Name: Canton Steven 

Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. 

b. The justification for the antidegradation program in the preamble tautologically states that it is necessary to prevent 

degradation of a water body. The rule does not articulate, much less provide a cogent rationale for, the amount of 

decline that would constitute regulatory degradation. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section E 

7.i 

Comment ID 0178-A2.001.006 

Author Name: Burnell Barry 

Organization: Idaho Department of Environmental Quality 

II. Antidegradation Policy and Implementation Methods 

Certainly a state's antidegradation policy and implementation procedures are public information and should be readily 

available to the public as well as affected dischargers. However, implementation is more a matter of agency resources 

than it is a matter of written procedures, whether they are in rule or guidance. In our view the uneven implementation of 

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antidegradation among states across the nation has two primary causes, 1) lack of state resources/priority, and 2) lack 

of EPA guidance on antidegradation implementation. Neither requires nor can be corrected by better federal rules. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section B 

Comment ID 0180-A2.001.003 

Author Name: Hobson Chris 

Organization: Southern Company 

1. Antidegradation Implementation 

EPA proposes three key changes to the antidegradation provisions of the federal regulation based on the belief that 

"antidegradation is not being used as effectively as it could be" and is "an underused component of water quality 

protection." 78 Fed. Reg. at 54526 col. 3. In support of this belief, EPA points to the growing number of waterbodies that 

are listed as impaired across the country. Id. We note that new monitoring techniques, more precise data, more 

stringent standards, more sophisticated modeling tools and more comprehensive water quality assessments may better 

explain this growing list than any actual worsening of water quality. But more fundamentally, we question whether 

additional federal regulation is the best answer to EPA's perceived shortcomings in state antidegradation programs. In 

each of the areas that EPA targets for additional regulation, we believe that the states are in the best – and primary – 

position to exercise good, independent judgment to prevent degradation. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section G 

7.b: Section H 

7.b: Section I 

Comment ID 0182-A2.001.008 

Author Name: Hahn Martha 

Organization: The Colorado Wastewater Utility Council 

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IV. Antidegradation Policy and Implementation 

EPA states "Although the federal antidegradation regulation is intended to help states and tribes protect and maintain 

high quality waters, the number of waters that are identified as impaired continues to grow." The increase in the number 

of waters listed as impaired should not be taken as sole evidence that water quality is worsening. Indeed, water quality 

may have not changed at all, but data has been collected, and/or water quality standards have changed, resulting in the 

listing. The CWWUC acknowledges that some states may not be adequately implementing anti-degradation in their 

water quality protection programs. If certain states are not appropriately implementing anti-degradation requirements, 

the CWWWUC encourages EPA to work collaboratively with the respective parties, prior to undertaking a rulemaking. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section G 

7.b: Section H 

7.c 

Comment ID 0184-A2.001.020 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

Comment 7: Antidegradation 

EPA stated that its intent in promulgating the draft rule revisions is to provide "improved regulatory clarity and more 

effective program implementation." 78 Fed. Reg. 54518, 54521 (Sept. 4, 2013). However, EPA's proposed revisions to 

the antidegradation rule are not a "clarification" as was the stated intent of EPA's draft rule. Instead, the EPA proposal is 

a radical revision of the current antidegradation rule and reverses established law regarding antidegradation 

requirements. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section F 

Comment ID 0197-A1.001.011 

Author Name: Garrison Naoh 

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Organization: Natural Resources Defense Council 

EPA Should Require Use of a Parameter-Based Approach for Designation of Tier 2 Waters and Require Analysis of 

Least-Degrading (or non-Degrading) Alternatives for Any Determination that Lowering Water Quality is Necessary 

The Proposed Rule contains numerous changes to 40 C.F.R. § 131.12 regarding implementation of antidegradation 

requirements. (78 Fed. Reg. at 54,527-28.) States and tribes are required to maintain and protect "high quality" waters 

"unless the State finds . . . that allowing lower water quality is necessary to accommodate important economic or social 

development in the area in which the waters are located," a process known as Tier 2 review. (40 C.F.R. § 131.12(a)(2).) 

While we support EPA's efforts to improve the process for review and designation of Tier 2 waters, which at current 

frequently fails to adequately protect high quality waters, the proposed changes are either unclear or would directly 

frustrate efforts to ensure adequate protection of water quality. We strongly urge EPA to revise its proposal, as detailed 

below. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section K 

7.b: Section L 

7.d.ii 

7.e.iv 

Comment ID 0200-A1.001.008 

Author Name: Covar Zak 

Organization: Texas Commission on Environmental Quality 

4. Antidegradation Implementation. 

The TCEQ strongly opposes the additional requirements to the antidegradation policy and implementation methods in 

proposed 40 CFR §131.12. The TCEQ has already included an antidegradation policy and implementation framework in 

its TSWQS, as well as more detailed implementation methods in the TCEQ's Procedures to Implement the Texas 

Surface Water Quality Standards (Implementation Procedures). The framework for implementing antidegradation in the 

TSWQS and in the TCEQ Implementation Procedures was developed over the course of multiple triennial revision 

cycles, with substantial input from advisory groups and public comment, and with EPA Region 6 approval. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

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7.b: Section H 

Comment ID 0203-A1.001.012 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

V. Antidegradation 

Some of the most serious problems with EPA's proposal are in the changes to the "antidegradation" provisions. 

"Antidegradation" policy is intended to prevent high-quality waters from becoming polluted down to where they meet the 

water quality criteria but just barely. Remarkably, EPA's proposals would make antidegradation policies apply to many 

waters that are "impaired," making them both "high quality" and "impaired" at the same time. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section J 

Comment ID 0206-A1.001.010 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

IV. Antidegradation 

Tier 2 "High Quality Waters" (78 Fed. Reg. 54,526-8) 

Under 40 C.F.R. §131.12, states and tribes are required to adopt an antidegradation policy and identify implementation 

methods for that policy. EPA is proposing to amend the antidegradation policy as it relates to High Quality Waters ("Tier 

2") which are waters "where the quality of the waters exceed levels necessary to support the propagation of fish, 

shellfish, and wildlife and recreation in and on the water." 40 C.F.R. §131.12. For Tier 2 waters, EPA's current policy 

requires the maintenance and protection of high quality waters unless the state or authorized tribe finds that "allowing 

lower water quality is necessary" to accommodate "important economic or social development in the area in which the 

waters are located." 40 C.F.R. §131.12(a)(2). 

EPA acknowledges the need to change the way states are implementing antidegradation requirements. This is because 

many states are failing to implement antidegradation reviews in their permitting processes and, in turn, the number of 

impaired streams across the nation continue to expand. [FN5] For example, a 2009 River Network Survey of eight 

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western states "interviewed permit staff in each state and asked them if the had ever completed a Tier 2 review (which 

we defined as including an alternatives analysis and a socio-economic review) and, if so, how many. Only one state, 

Colorado, had completed a Tier 2 review." [FN6] 

We support EPA's efforts to require states to implement antidegradation requirements through clear, regulatory 

requirements, but are concerned about the approach set forth in this proposal. Primarily, we are concerned that the 

Proposed Rule is ambiguous, and does not provide adequate guidance to the states in conducting Tier 2 reviews. 

[FN5] For example, the most recent available date on impaired waters from EPA indicates that there are currently 

518,143 miles of impaired rivers/streams and 12,121,931 acres of impaired lakes. 

http://ofmpub.epa.gov/waters10/attains_nation_cy.control. EPA's 2004 305b Report concluded that there were 246,002 

miles of impaired rivers/streams and 10,451,401 acres of impaired lakes as of 2004. 

http://water.epa.gov/lawsregs/guidance/cwa/305b/upload/2009_05_20_305b_2004report_report2004pt3.pdf 

[FN6] http://www.rivernetwork.org/cwwpolicyanalysis, Ch. 2, p. 47. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section K 

7.b: Section L 

Comment ID 0208-A1.001.015 

Author Name: Foster Wade 

Organization: The Fertilizer Institute 

EPA's proposed amendments to its antidegradation rules should therefore be withdrawn. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section B 

7.b: Section C 

7.b: Section D 

7.b: Section E 

7.b: Section F 

7.b: Section G 

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7.b: Section H 

7.b: Section I 

Comment ID 0212-A1.001.010 

Author Name: Norton Kelly 

Organization: Arizona Mining Association 

Antidegradation (proposed § 131.12): EPA is proposing a variety of changes to the federal antidegradation provision. 

Arizona has adopted detailed antidegradation rules (A.A.C. R18-11-107 & 18-11-107.01) that already reflect a number 

of the proposals, and these state rules have been approved by EPA. The AMA's comments below focus on areas where 

the EPA proposal may be inconsistent with Arizona's approved rules. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section H 

Comment ID 0215-A1.001.010 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

IV. Antidegradation 

A. Tier 2 "High Quality Waters" (78 Fed. Reg. 54,526-8) 

Under 40 C.F.R. §131.12, states and tribes are required to adopt an antidegradation policy and identify implementation 

methods for that policy. EPA is proposing to amend the antidegradation policy as it relates to High Quality Waters ("Tier 

2") which are waters "where the quality of the waters exceed levels necessary to support the propagation of fish, 

shellfish, and wildlife and recreation in and on the water." 40 C.F.R. §131.12. For Tier 2 waters, EPA's current policy 

requires the maintenance and protection of high quality waters unless the state or authorized tribe finds that "allowing 

lower water quality is necessary" to accommodate "important economic or social development in the area in which the 

waters are located." 40 C.F.R. §131.12(a)(2). 

EPA acknowledges the need to change the way states are implementing antidegradation requirements. This is because 

many states are failing to implement antidegradation reviews in their permitting processes and, in turn, the number of 

impaired streams across the nation continue to expand. [FN5] For example, a 2009 River Network Survey of eight 

western states "interviewed permit staff in each state and asked them if the had ever completed a Tier 2 review (which 

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we defined as including an alternatives analysis and a socio-economic review) and, if so, how many. Only one state, 

Colorado, had completed a Tier 2 review." [FN6] 

We support EPA's efforts to require states to implement antidegradation requirements through clear, regulatory 

requirements, but are concerned about the approach set forth in this proposal. Primarily, we are concerned that the 

Proposed Rule is ambiguous, and does not provide adequate guidance to the states in conducting Tier 2 reviews. 

[FN5] For example, the most recent available date on impaired waters from EPA indicates that there are currently 

518,143 miles of impaired rivers/streams and 12,121,931 acres of impaired lakes. 

http://ofmpub.epa.gov/waters10/attains_nation_cy.control. EPA's 2004 305b Report concluded that there were 246,002 

miles of impaired rivers/streams and 10,451,401 acres of impaired lakes as of 2004. 

http://water.epa.gov/lawsregs/guidance/cwa/305b/upload/2009_05_20_305b_2004report_report2004pt3.pdf 

[FN6] http://www.rivernetwork.org/cwwpolicyanalysis, Ch. 2, p. 47. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section K 

7.b: Section L 

Comment ID 0219-A1.001.007 

Author Name: McNelly Jeff 

Organization: ARIPPA 

4. Antidegradation Implementation. 

The EPA is proposing to amend several provisions of § 131.12 related to implementing the antidegradation 

requirements. These include (1) clarifying the options available to States and Tribes when identifying Tier 2 high quality 

waters, (2) clarifying that States and Tribes must conduct an alternatives analysis in order to support State and Tribal 

decision-making on whether to authorize limited degradation of high quality water, and (3) specifying that States and 

Tribes must develop and make available to the public implementation methods for their antidegradation policies. The 

EPA is also proposing to add language to § 131.5(a) describing the EPA's authority to review and approve or 

disapprove State-adopted or Tribal adopted antidegradation policies. The language at § 131.5(a) will further specify that 

if a State or Tribe has chosen to formally adopt implementation methods as water quality standards, the EPA would 

review whether those implementation methods are consistent with 131.12. 

Response 

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For response to this comment, see the following response essay(s): 

7.b 

7.b: Section A 

7.d.ii 

7.e.ii 

7.f.i 

Comment ID 0229-A2.001.008 

Author Name: Tillison Naomi 

Organization: Bad River Band of Lake Superior Tribe of Chippewa Indians 

Antidegradation Implementation 

The Tribe supports EPA's efforts to enhance state and tribal implementation of antidegradation as proper 

implementation of antidegradation components is critical to achieving the objective of the CWA to maintain the integrity 

of high quality waters. It tends to be more cost-effective and efficient to protect an intact water resource than to attempt 

to restore a degraded one, which can be difficult and expensive to accomplish. The antidegradation revisions proposed 

by the EPA in the rules themselves seem to fall short of meeting the CWA's objective for maintenance of high quality 

waters. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section K 

Comment ID 0240-A2.001.016 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

b. The justification for the antidegradation program in the preamble tautologically states that it is necessary to prevent 

degradation of a water body. The rule does not articulate, much less provide a cogent rationale for, the amount of 

decline that would constitute regulatory degradation. 

Response 

For response to this comment, see the following response essay(s): 

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7.b 

7.b: Section E 

7.i 

Comment ID 0248-A2.001.009 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

4. Anti-degradation 

EPA makes several proposals regarding anti-degradation requirements, including the following, to add: (i) paragraph 

(b)(1) to § 131.12 to specify that states may identify high quality (Tier 2) waters by parameter or by water body 

segment; (ii) paragraph (b)(2) to § 131.12 requiring states to conduct an alternatives analysis before finding that 

"allowing lower water quality" for Tier 2 waters "is necessary to accommodate important economic or social 

development", and that states must adopt "any practicable alternatives" to allowing lower water quality for Tier 2 waters; 

(iii) paragraph (b) to § 131.12 requiring states to make anti-degradation implementation plans subject to public review 

and comment; and (iv) paragraph 131.5(a)(3) rendering anti-degradation implementation plans subject to review by 

EPA as elements of water quality standards. See 78 Fed. Reg. at 54527-5459. While preventing degradation of the 

quality of waters achieving water quality standards is an important goal under the Clean Water Act, Mosaic has several 

concerns regarding EPA's anti-degradation proposals. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section B 

7.b: Section C 

7.b: Section D 

7.b: Section E 

7.b: Section F 

7.b: Section G 

7.b: Section H 

7.b: Section I 

7.b: Section J 

Comment ID 0250-A2.001.006 

Author Name: Batterton Carol 

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Organization: Water Environment Association of Texas, Texas Association of Clean Water Agencies, and Texas Water 

Conservation Association 

The existing antidegradation provisions in the Texas Standards strike an appropriate balance between establishing a 

framework for implementation of the antidegradation policy and ensuring that the regulations are not overburdened with 

so much detail that flexibility is lost. The Texas program is a good example of how to structure a State's antidegradation 

policies. However, the proposed revisions would impose required changes that would substantially increase the 

administrative burden on the State and decrease the State's ability to provide sound water quality management based 

on conditions as they exist in the State of Texas. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section I 

12.a 

Comment ID 0252-A2.001.025 

Author Name: Fry Eric 

Organization: Peabody Energy 

Antidegradation (s. 131.12) 

EPA appears to be attempting to justify the antidegradation program in the preamble language by suggesting it is 

necessary to prevent degradation of a water body. Peabody asserts that if designated uses and associated water 

quality standards are being attained, the water body should already be protected. How does one define how much 

decline equals regulatory degradation? Minor degradation where water quality standards are being met might have little 

or no impact on the uses. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section E 

Comment ID 0257-A1.001.011 

Author Name: Harpole Chad 

08/04/2015 05:01 PM EDT 

7.i 

2-581 
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Organization: Kentucky Chamber of Commerce 

In sum, EPA's proposed high quality water antidegradation review methodology and standards represent 

unprecedented new requirements for states in reviewing NPDES projects for new or expanded discharges. It would 

create a huge burden on states and permittees seeking to obtain authorization for new projects. Indeed, under the full 

scope of EPA's antidegradation proposals, state permit writers would not need to consider other water quality-based or 

technology-based permitting programs since no one would be allowed to increase any pollutants to a stream unless 

they demonstrated they were applying the most stringent wastewater technology that could be paid for by the company 

and that no other project options were determined to be available that would decrease pollutant loading, including a 

reduced project scope or no project at all. Hopefully, this is not EPA's intent; but the preamble and proposed regulatory 

language could support such an absurd result. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section H 

7.b: Section I 

12.a 

Comment ID 0263-A2.001.008 

Author Name: Gretchen Watkins Larry Wawronowicz 

Organization: Lac du Flambeau Band of Lake Superior Tribe of Chippewa Indians 

Antidegradation Implementation 

The Tribe supports EPA's efforts to enhance state and tribal implementation of antidegradation as proper 

implementation of antidegradation components is critical to achieving the objective of the CWA to maintain the integrity 

of high quality waters. It tends to be more cost-effective and efficient to protect an intact water resource than to attempt 

to restore a degraded one, which can be difficult and expensive to accomplish. The antidegradation revisions proposed 

by the EPA seem to fall short of meeting the CWA's objective for maintenance of high quality waters. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section K 

Comment ID 0268-A2.001.016 

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Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

We do not agree, however, with EPA's proposal. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section K 

7.b: Section L 

Comment ID 0275-A2.001.007 

Author Name: Reeves Sarah 

Organization: Colorado Monitoring Framework 

Antidegradation Implementation 

As EPA points out, it continues to be concerned, as stated in EPA's 1998 ANPRM, that "on a national scale, 

antidegradation is not being used as effectively as it could be.'' CMF supports implementation of antidegradation 

policies by states. Colorado has successfully adopted and is implementing a protective antidegradation policy. CMF 

encourages EPA to focus on states that have not implemented an effective policy first, rather than implementing 

changes to the regulation that will result in most, if not all, states needing to revise their antidegradation policies. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section H 

7.c 

Comment ID 0278-A2.001.012 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

Antidegradation Implementation 

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The principle against degradation is well-established and necessarily inferred from the goals and mandates of the Clean 

Water Act. But the practice of preventing degradation is squarely reserved to the states as part of their primary authority 

to develop, implement and thereafter enforce water quality-based requirements. EPA grounds its proposal in the view 

that antidegradation is not being used as effectively as it could be, that it is an underused component of water quality 

protection, and that proof of this lies in the fact that the number of waters that are identified as impaired continues to 

grow. NACWA understands and shares EPA's interest in adequate and effective implementation of state water quality 

standards, including state antidegradation policies. But NACWA questions whether a national rule is needed in order to 

address EPA's perceived deficiencies. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section G 

Comment ID 0282-A2.001.007 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

4. Antidegradation 

Washington updated antidegradation provisions in 2003 that were approved by EPA in 2007. While we believe we are 

meeting the federal intent of antidegradation, we want to emphasize that states should continue to be given discretion in 

how they administer their antidegradation policies. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section H 

Comment ID 0284-A2.001.007 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

4. Antidegradation 

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Washington updated antidegradation provisions in 2003 that were approved by EPA in 2007. While we believe we are 

meeting the federal intent of antidegradation, we want to emphasize that states should continue to be given discretion in 

how they administer their antidegradation policies. 

Response 

For response to this comment, see the following response essay(s): 

7.b 

7.b: Section H 

7.C - ANTIDEG - GUIDANCE 

Comment ID 0154-A2.001.003 

Author Name: McGee Beth 

Organization: Chesapeake Bay Foundation 

State antidegradation policies are inconsistent, underutilized, and need greater oversight. 

The principle of antidegradation is perhaps one of the most powerful, yet underutilized components of states' and tribes' 

water quality standards under the Clean Water Act (CWA). Water quality standards consist of designated uses, criteria 

designed to protect those uses, and the protection of existing water quality through antidegradation provisions. It is 

fundamental to the achievement of the CWA objective to "restore and maintain the chemical, physical, and biological 

integrity of the Nation's waters (33 U.S.C. 1251) (emphasis added). According to EPA, (60 FR 36780), the 

antidegradation policy provides a multi-level approach for the protection of water quality and applies to both point and 

non-point source activities. Antidegradation requirements are typically triggered when an activity is proposed that may 

have some effect on existing water quality. Such activities are reviewed to determine, based on the level of 

antidegradation protection afforded to the affected water body segment, whether the proposed activity can be 

authorized. 

Currently, the implementing regulations at 40 CFR 131.12 require States and Tribes to adopt an antidegradation policy 

and identify implementation methods for that policy. This policy must provide protection for all "existing uses" known as 

"Tier 1" protection, as well as requiring the maintenance and protection of high quality waters ("Tier 2") unless certain 

conditions are met. In addition, the policy must provide for the maintenance and protection of "Outstanding National 

Resource Water" (ONRW). 

Unfortunately, despite the fact that this provision was included in EPA's first WQS regulation in 1975 (40 CFR 130.17, 

40 FR 55340-41), was slightly refined and re-promulgated as part of the current program in 1983 (40 CFR 131.12) and 

affirmed by Congress in 1987 [33 U.S.C. 1313(d)(4)(B)], most States have only paid lip-service to the policy and its 

implementation. For example, many States, like Maryland, have not identified any ONRWs although their regulations do 

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include that category. 

Implementation methods are incredibly inconsistent, even within the Chesapeake watershed states. Maryland, for 

example, has implementation methods for how to conduct Tier 2 reviews in their regulations, whereas Pennsylvania has 

developed a lengthy guidance document describing implementation methods for all three Tiers. In addition, in some 

states the use of antidegradation policies and exceptions has actually undercut the goals of the CWA. [FN1] These 

examples highlight the need for more guidance and oversight to ensure that the intent of antidegradation in the CWA is 

achieved and that there is consistency in its application and implementation. In fact, EPA acknowledged this need 

explicitly in their 1998 Advanced Notice of Proposed Rulemaking (ANPR 60 FR 36781-83), writing: "In sum, EPA's 

current thinking is that the antidegradation policy is significantly underused as a tool to attain and maintain water quality 

and plan for and channel important economic and social development that can impact water quality." 

But, perhaps the most compelling argument that this provision has been largely ignored, is the fact that the number of 

impaired waters in the U.S. has not improved, and may be increasing, over time (see EPA web page 

http://ofmpub.epa.gov/waters10/attains_index.control). For example, between 2006 and 2010 the number of 

streams/rivers and bays/estuaries listed as "impaired" nationally increased from 316,274 and 7,522 miles, respectively, 

to 420,389 and 19,268 - the number of impaired bays and estuaries more than doubling during this four year period. 

Part of this increase may be due to more waterbodies being assessed, but there is also evidence that water quality is 

decreasing. According to the EPA's National Rivers and Streams Assessment, 55% of the nation's river and stream 

miles do not support healthy populations of aquatic life, with phosphorus and nitrogen pollution and poor habitat the 

most widespread problems (March 2013, EPA 841-F-13-004). Furthermore, this survey indicated that 7% fewer stream 

miles are in good biological condition and 19% fewer stream miles were in good condition for phosphorus compared to 

a similar survey in 2004. 

Clear, comprehensive guidance from EPA on implementation methods for antidegradation is needed. 

The first component of antidegradation is that "existing instream water uses and the level of water quality necessary to 

protect the existing uses shall be maintained and protected." [40 CFR 131.12 (a)(1)]. Clearly, protection of Tier 1 waters 

has not been achieved. At a minimum, States and authorized Tribes must apply antidegradation requirements to 

activities that are "regulated" under State, Tribal, or federal law such as CWA Section 402 National Pollutant Discharge 

Elimination System (NPDES) permits (including urban stormwater, Concentrated Animal Feeding Operations, and 

runoff from construction sites), CWA Section 404 dredge and fill permits, any activity requiring a CWA Section 401 

certification, any activity subject to State or Tribal nonpoint source control requirements or regulations, and any activity 

which is otherwise subject to State or Tribal regulations that specify that water quality standards are applicable. 

Furthermore, as noted by EPA in 1998 (60 FR 36780) antidegradation reviews under all three tiers should be 

documented and subjected to public review and comment (e.g., as part of the public review of the water quality 

certification, NPDES permit, or other regulatory action). 

We recommend that EPA develop national guidance for implementation of Tier 1 of the antidegradation policy that 

explicitly addresses how antidegradation reviews should be conducted on all types of regulated activities, as noted 

above. States within the Bay watershed and across the country sorely need this guidance. The guidance should 

include, for example, the scientific basis for evaluating how additional loads from new or expanding sources, be they 

traditional end of pipe sources, or new development within, or outside of, Municipal Separate Storm Sewer Systems 

(MS4s), have the potential to impact existing water uses. 

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Furthermore, the guidance should address implementation issues that were outlined in the 1998 ANPR (60 CFR 36782) 

and paraphrased here. In the first case, the question is how a State or Tribe will prevent negative or harmful impacts to 

existing uses when water quality criteria that have been established to protect the designated uses are not adequate to 

protect the existing uses. The example given was a regulated discharge of uncontaminated sediment that could result in 

impacts to aquatic life habitat and loss of aquatic life use. In such cases, where sediment or siltation criteria have not 

been developed for the site, and where the State or Tribe has not established clear procedures to implement narrative 

criteria governing sedimentation, it may be difficult to prohibit such loss of use, particularly where a State or Tribe has 

not adopted biological criteria. 

In the second case, a proposed activity will result in the discharge of a substance for which numeric criteria have not 

been adopted by the State or Tribe, but sufficient data to derive criteria or a numeric translation of the narrative criteria 

are available. Deriving effluent limits to protect the existing use are technically feasible, but doing so may be difficult and 

contentious. 

The third example given was where a proposed hydrologic modification will result in diminished flow in a water body 

and create the potential for loss of existing aquatic life use either through increased temperatures or turbidity, or loss of 

habitat. State and Tribal water quality criteria generally do not describe acceptable flows and may not, by themselves, 

adequately protect against such loss of use. In 1994, the Supreme Court ruled (Jefferson County and City of Tacoma v. 

Washington Department of Ecology) that State certifications under Section 401 of the CWA may include conditions to 

ensure compliance not only with a State's water quality criteria, but also with a State's designated uses or 

antidegradation policy. 

The Court concluded that a State could require a dam to be designed and operated in such a way as to maintain stream 

flows necessary to protect the designated use of a stream. While this specific case had to do with a dam and stream 

flows necessary to protect a use, EPA noted in the 1998 ANPR that the opinion applied more broadly and that States 

may also apply any other parameter that may not be specifically identified in the State's standards. These issues are 

still relevant today and recommendations for how to address them should be included in EPA guidance on 

implementation of antidegradation. Increased interest in, and activity related to, water quality trading programs in the 

Chesapeake Watershed and across the nation, make this guidance even more important. One of the main concerns 

regarding water quality trading is how to ensure that trades or offsets do not degrade local water quality or hinder efforts 

to restore it. Clear and transparent methods for evaluating the potential for trading or offsets to impact local waters is 

critical to ensuring water quality is protected. Clear and comprehensive guidance from EPA on implementation methods 

for antidegradation will help achieve this goal. 

[FN1] See: Rivers Unlimited, Inc. v. Schregardus, 86 Ohio Misc. 2d 78 (Ohio Ct. Com. Pl. 1995); Ex parte Fowl River 

Protection Ass'n., Inc. v. Board of Water and Sewer Commissioners of the City of Mobile, 572 So.2d 446 (Ala. 1990). 

Response 

For response to this comment, see the following response essay(s): 

7.c 

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Comment ID 0234-A2.001.009 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

Instead, EPA should work closely with the States that are not implementing the program, to determine why that is the 

case and to find solutions that will enable the program to be implemented in those States. In many cases, we believe 

that the issue can be addressed by clearer EPA guidance that explains the basics of antidegradation and shows States, 

in a step-by-step manner, how antidegradation can be built into their permitting programs in an effective and efficient 

manner. At this time, there is no single EPA document that does that job, even though the antidegradation program has 

been in EPA rules for more than 20 years. Before adopting new regulations, EPA should issue adequate guidance 

along those lines, and then, after an adequate period of implementation, determine if anything further is needed. 

Response 

For response to this comment, see the following response essay(s): 

7.c 

7.D - ANTIDEG - ID HQ WATERS 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

7.D.I - ANTIDEG HQ - GEN SUPP 

Comment ID 0122-A1.001.003 

Author Name: Araujo Jaeleen 

Organization: Sealaska Corporation 

1. Parameter-by-parameter ranking 

Sealaska agrees with EPA that states should have the flexibility to rank water bodies by either a parameter-byparameter or water body approach. When a parameter-by-parameter approach is used, any Tier 2 analysis must 

logically be confined to those parameters that meet Tier 2 criteria. Also, the purpose of the anti-degradation requirement 

is to protect those waters with a quality higher than that necessary to "support propagation of fish, shellfish, and wildlife 

and recreation." 40 C.F.R. §131.12(a)(2). In this regard, EPA suggests an alternative stating that "Tier 2 reviews are 

only required for parameters associated with 101(a)(2) [of the Clean Water Act]"- the paragraph that sets out Congress' 

"fishable and swimmable" goal. We support that alternative. 

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Therefore, Sealaska would recommend amending EPA's proposed §312(b)(1) to read: 

(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body basis at the 

State's discretion, but must not exclude any water body from high quality water protection solely because not all of the 

uses specified in CWA section 101(a)(2) are attained. If a parameter-by-parameter basis is employed, a high quality 

determination shall be made separately for each parameter, and the determination may be confined to those 

parameters associated with supporting the propagation of fish, shellfish and wildlife and recreation. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

7.d.i: Section B 

7.d.i: Section C 

7.d.iii 

Comment ID 0123-A1.001.012 

Author Name: Chin Ryan 

Organization: NA 

The first proposal, identifying that high quality waters may be identified on a holistic approach analyzing the specific 

water body's parameters, addresses the concern that states and tribes in the past have identified a water body not as a 

high quality water, specifically on the basis that the water body did not satisfy all the uses specified in the CWA section 

101 (a) (2). This practice that may be based on a mere technicality seems to be against congress' intent, as a water 

body that exceeds most of the uses specified but may be slightly under the threshold for one use would thus become 

excluded from the Tier 2 designation, and the higher protection afforded due to that designation. Given the overall 

purpose of the CWA and Congress' intent to "restore and maintain the chemical, physical, and biological integrity of the 

Nation's waters" (CWA Section 101 (a)), it is clear that those water bodies with quality that exceed the levels necessary 

to support propagation of fish, shellfish, and wildlife and recreation in and on the water, should be given the Tier 2 

designation. Further, EPA is only codifying the flexibility that the EPA's view has allowed, that water bodies that have 

qualities that exceed some or most of the uses specified in the CWA are not excluded simply because they do not attain 

all of the uses specified. In analyzing these water bodies with qualities that exceed the levels necessary, it is important 

to take a holistic evaluation of the water body itself, to evaluate all the chemical, biological, and physical characteristics 

in an effort to achieve the overall goal of the CWA, and not follow a technicality to exclude those water bodies. Further, 

if the practice to exclude a water body from Tier 2 protection because it did not attain only one of the uses specified in 

section 101 (a) (2), it would allow a categorical exclusion of almost all the water bodies of the U.S., in effect destroying 

the purpose and protection of Tier 2 waters, as evidenced by the example cited by the EPA regarding waters affected 

by mercury. The proposal would also allow states and tribes that want to afford Tier 2 protection to a water body the 

flexibility to do so, if in the past they were prevented from designating the water body because it did not attain one of the 

specified uses. As the two examples given by the EPA, it would be counter-intuitive and against the purpose to not 

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afford a water body with Tier 2 protection simply because it does not attain the mercury use for propagation of aquatic 

life, even though the water body exceeds the use for aquatic life and recreational designated uses. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

Comment ID 0129-A2.001.009 

Author Name: Steidel Robert 

Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc. 

4. Antidegradation Implementation 

As an initial matter, VAMWA notes that EPA has correctly referred to the states' primary role in developing and 

implementing water quality standards under CWA section 303, including the third component of standards, after 

designated uses and criteria - antidegradation. See 78 Fed. Reg. at 54529 ("EPA acknowledges the primary role of [the] 

states ... in establishing and implementing water quality standards"). Because the CWA carefully and explicitly carves 

out water quality standards for the states, the Agency's proposal has for the most part carefully and correctly not 

intruded on the specifics of antidegradation implementation. 

We understand EPA's proposal to include four principal parts. 

A. The Basis for Tier Designations 

First, the Agency confirms that the states are free to implement Tier 2 protections or either a waterbody or pollutant-bypollutant basis. This is proper and we urge the Agency to not constrain the states' discretion in this regard. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

Comment ID 0147-A2.001.006 

Author Name: Gaskin David 

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Organization: Nevada Division of Environmental Protection 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

Nevada is supportive of the language changes to recognize the parameter-by-parameter and the waterbody-bywaterbody approaches for identifying high quality waters. Nevada uses both approaches to better address 

antidegradation issues in our state. Each state should have the discretion to implement both or either of the approaches 

in manners deemed appropriate by the state. Also, each state should have the flexibility to use the 303(d) list as part of 

the determination process. We offer the following suggested revision. 

Suggested revision: 

§ 131.12(b)(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body 

basis at the State's discretion [begin strikeout], but must not exclude any water body from high quality water protection 

solely because not all of the uses specified in CWA section 101(a)(2) are attained [end strikeout]; 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

Comment ID 0148-A2.001.003 

Author Name: Rice Patrick 

Organization: Nebraska Department of Environmental Quality 

Regarding the proposals to change the Antidegradation Policy and Implementation Methods at 40 CFR § 131.12, 

NDEQ supports the language clarifying that high quality waters may be identified on a parameter-by-parameter basis or 

on a water body-by-water body basis at the State's discretion. However, such identification is a state primacy decision 

and NDEQ believes that if the water body-by-water body approach is acceptable, the mechanism by which water bodies 

receive this protection should be at the State's discretion. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

Comment ID 0150-A1.001.008 

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Author Name: Heisig-Mitchell Jamie 

Organization: Hampton Roads Sanitation District 

Antidegradation Implementation 

EPA notes that antidegradation is an essential element of water quality standards regulation and that states are 

responsible for establishing and implementing water quality standards as identified by the CWA. See 78 Fed. Reg. at 

54529-54530. Any proposed revisions or clarifications to the antidegradation language in section 131.12 must maintain 

the states' authority to establish and implement the water quality standards regulation in ways that work best for their 

waters. 

HRSD understands EPA's proposal to include four principal parts. 

1. The Basis for Tier Designations 

EPA confirms that the states are free to implement Tier 2 protections on either a waterbody or pollutant-by-pollutant 

basis. This is consistent with state authority to establish and implement the elements of their antidegradation policy. 

HRSD urges EPA not to constrain the states' discretion in this regard. 

EPA proposes that Tier 2 protections may not be excluded solely because one, but not all, of the water body uses 

specified by the CWA are not attained. This mandatory limitation is unnecessary and it improperly intrudes on the 

states' primacy in water quality standards. If in a permit proceeding a state unnecessarily denies Tier 2 protections to a 

water body, EPA and third parties have a right to address and challenge that as a part of the permit process. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

7.d.i: Section B 

Comment ID 0153-A2.001.008 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

B. Identification of high quality/Tier 2 waters. 

The State Water Board does not currently utilize a waterbody-by-waterbody approach, but supports the addition of 

proposed new paragraph (b)(1) to section 131.12, to provide that states have discretion to determine high quality waters 

on a parameter-by-parameter or a waterbody-by-waterbody basis. (78 Fed. Reg. 54544, col. 3.) The State Water Board 

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is also supportive of the discussion in the preamble on this point. (Id., 54527-54528.) 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

Comment ID 0154-A2.001.004 

Author Name: McGee Beth 

Organization: Chesapeake Bay Foundation 

In addition, CBF strongly supports EPA's proposal that high quality waters, even those that that may be listed as 

impaired for certain parameters, still be afforded protection as Tier 2 waters. For example, as noted in EPA's proposal, 

many waterbodies are listed as impaired due to fish consumption advisories for mercury and PCBs. To exclude those 

waterbodies, that otherwise may be high quality and worthy of protection, is inconsistent with the intent of the CWA. 

CBF strongly supports EPA's desire to clarify this provision. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

Comment ID 0169-A1.001.003 

Author Name: Letient Henri 

Organization: Teck Alaska Incorporated 

• Identification of High Quality Waters. Teck agrees with EPA that states should have discretion in how they identify high 

quality (i.e., Tier 2) waters, using either the parameter-by-parameter or waterbody-by-waterbody approach. This is in 

keeping with the states' primary role in protecting water quality and managing development, as recognized in Section 

101(b) of the Clean Water Act, 33 U.S.C. § 1251(b). EPA's proposed clarification to that effect, in 40 CFR § 

131.12(b)(1), is appropriate. 

Response 

For response to this comment, see the following response essay(s): 

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7.d.i 

7.d.i: Section A 

Comment ID 0179-A2.001.003 

Author Name: Spotts David 

Organization: Pennsylvania Fish and Boat Commission 

Specific to the proposed regulatory changes, the PFBC concurs with the changes to the definition of the Identification of 

High Quality Waters. The environmentally improved definition now requires a holistic evaluation of the water body, 

which will offer Tier 2 protection to an increased number of deserving waters. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

Comment ID 0186-A1.001.007 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

• API supports the proposed language at 40 CFR 131.12(b)(1) which gives states discretion as to whether to use a 

parameter-by-parameter basis or a water body basis for determining if a water body is a high-quality water. 

• The proposed language at 40 CFR 131.12(b)(1) should clarify that protection of high quality waters when not all CWA 

Section 101(a)(2) uses are attained applies only to the uses/parameters that are being attained. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

7.d.i: Section B 

7.d.iii 

Comment ID 0186-A1.001.022 

08/04/2015 05:01 PM EDT 2-594 
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Author Name: Claff Roger 

Organization: American Petroleum Institute 

Part 1: Identification of High Quality Waters (78 Fed. Reg. 54527-54528) 

API supports the proposed language at 40 CFR 131.12(b)(1) which gives states discretion as to whether to use a 

parameter-by-parameter basis or a water body basis for determining if a water body is a high-quality water. 

States must continue to retain the authority to use their discretion in determining how to designate "high quality" surface 

waters that are subject to Tier 2 antidegradation protection against lowering of water quality. Some states, for example 

Ohio, use biological criteria for determining subcategories of aquatic life uses that are assigned to their surface waters. 

Others use approaches such as achievable dissolved oxygen concentrations to differentiate between aquatic life use 

designations and applicable tiers of antidegradation protection. Similarly, states are developing categories of recreation 

uses, including uses such as non-contact recreation (following UAAs) that should represent different tiers of 

antidegradation policy application. 

The proposed language at 40 CFR 131.12(b)(1) continues to give states the discretion to identify surface waters that 

warrant Tier 2 protection and API supports the clarification of this discretionary authority. 

The proposed language at 40 CFR 131.12(b)(1) should clarify that protection of high quality waters when not all CWA 

Section 101(a)(2) uses are attained applies only to the uses/parameters that are being attained. 

The proposed provision at 40 CFR 131.12(b)(1) (78 Fed. Reg. 54544) requires that states not exclude any water body 

from high quality water protection solely because not all of the uses specified in CWA Section 101(a)(2) are attained. 

This provision could be misinterpreted to imply that antidegradation policy would apply to WQ constituents that do not 

meet the "high quality waters" objective as well as those constituents that do. The preamble to the rule states that the 

intent of this provision is to assure protection of high water quality, where it currently exists, in surface water bodies that 

are classified as not having high quality, e.g., waters not attaining a standard or marginally attaining a standard. 

EPA gives two examples in the preamble; one is of a water body that does not meet a recreational use bacteria 

standard and a methyl mercury standard established to protect human health, but does have water quality that is better 

than that needed to attain the propagation and protection of aquatic life for all other water quality constituents (78 Fed. 

Reg. 54528). The preamble clarifies that the intent of proposed 40 CFR 131.12(b)(1) is that a state perform 

antidegradation review for any WQ standards for the protection and propagation of aquatic life that do meet the 

definition of "high quality waters." For example, the aquatic life criteria for metals such as copper, nickel and zinc may 

be attained in an impaired water body to such an extent that the ambient water quality is Tier 2 for these metals. The 

rule is intended to assure that antidegradation review be extended to such WQ constituents. 

The problem with the proposed language of 40 CFR 131.12(b)(1) is that it does not state that antidegradation review 

should apply only to those constituents (or uses) that attain Tier 2 status. Additional clarification is needed in the rule 

language to limit antidegradation review to those uses and water quality constituents of a water body that are attained 

to the extent that they qualify as "high quality waters." 

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Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

7.d.i: Section B 

7.d.iii 

Comment ID 0191-A2.001.004 

Author Name: Hirst Barbara 

Organization: New Jersey Department of Environmental Protection 

Antidegradation: 

Identifying high quality waters: NJDEP supports EPA's action regarding identifying high quality waters. NJDEP identifies 

all of its waters following the waterbody-by-waterbody approach as high quality waters (Tier 2) or better (Tier 2 1/2 or 3). 

Antidegradation designations applicable to all surface waters of New Jersey which have been identified as one of the 

following: Outstanding National Resource Waters (ONRW) or Tier 3 waters, Category One waters or Tier 2 1/2 waters, 

and Category 2 waters or Tier 2 waters. No waters are identified as Tier 1 waters in New Jersey WQS. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

Comment ID 0194-A1.001.012 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

While unnecessary, the addition of the separate statement as proposed by the first two sentences of § 131.12(b) are 

not otherwise objectionable. The Chamber does object to the proposed revisions adding § 131.12(b)(1) and (2). States 

generally adopt either a parameter-by-parameter or waterbody-by-waterbody approach in their implementation policies, 

but many would disagree with the proposition that a state must consider as high quality a waterbody that is specifically 

regulated as "impaired" by EPA. States should be allowed to determine what level of review is appropriate for impaired 

waters. Further, states should have the flexibility to determine when social or economic development is sufficiently 

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important to allow for a lowering of existing water quality. The proposed language in § 131.12(b)(2) is overly prescriptive 

and burdensome. If adopted, this section would essentially hand to EPA the final say in state development decisions. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

7.d.i: Section B 

7.d.i: Section D 

7.e.ii 

7.g.ii 

Comment ID 0202-A2.001.013 

Author Name: Frederick Kevin 

Organization: Wyoming Department of Environmental Quality/Water Quality Division 

Identification of High Quality Waters 

The EPA is proposing to specify that states may identify high quality waters on a parameter by parameter approach or a 

waterbody by waterbody approach. The WDEQ/WQD supports the proposed revision clarifying that both of these 

methods are acceptable for identifying high quality waters. The WDEQ/WQD would also support additional language 

clarifying that states have "discretion on how to conduct the Tier 2 reviews" (Section E(1) on page 54528 of Federal 

Register Vol. 78, No. 171). 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

7.d.iii 

Comment ID 0217-A2.001.015 

Author Name: Hale Michelle 

Organization: Alaska Department of Environmental Conservation 

b. Identification of High Quality Waters 

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ADEC appreciates EPA's recognition that high quality/Tier 2 waters can be identified through either a parameter-byparameter basis or a water body-by-water body basis. ADEC is proposing to identify high quality waters on a 

parameter-by-parameter basis. However, ADEC also recognizes that other states have equally valid methods for 

identifying high quality waters based on a more holistic water body-by-water body assessment. The mechanism by 

which water bodies receive this level of protection should be at a state's discretion. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

Comment ID 0236-A2.001.012 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

E. 131.12 Antidegradation Policy and Implementation Methods 

Identification of High Quality Waters 

WDNR supports the following clarifications: 

• States have the discretion to identify waters as high quality waters; EPA does not have a formal approval or 

disapproval process for these decisions. 

• Tier 2 protection should not be categorically denied if a waterbody is attaining some uses, but impaired for others. 

Recommended changes: 

• WDNR requests EPA consider amending paragraph (b)(1) and "Water Quality Guidance for the Great Lakes System" 

to state that high quality waters are identified on a designated use basis, rather than a parameter-by-parameter basis. 

Then, for each use, states could identify certain core parameters which would be used to make the high quality 

determination for each use. Applying high quality water classifications to the use, rather than to individual parameters, 

would simplify and clarify the listing and assessment decision-making process, and would narrow the scope of Tier 2 

evaluations. WDNR believes this approach is consistent with the language and intent in CWA 101(a)(2). For water-rich 

states, such as Wisconsin, using a parameter-by-parameter approach is problematic because in-stream monitoring data 

may not be available for all parameters. If a parameter-by-parameter approach is continued, WDNR requests EPA 

provide clarification on how to make these determinations absent in-stream data. 

Example: A waterbody is considered a high quality water for recreational activities, but is impaired for fish and aquatic 

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life due to high levels of mercury in the receiving water. A point source discharge demonstrates need to increase the 

concentration of phosphorus and copper in their effluent to the surface water in question. Because the waterbody will 

not meet its fishable or swimmable goals, it is not necessary to perform a Tier 2 demonstration for copper. However, 

this demonstration would be necessary for phosphorus, which would have a potential impact to the recreational value of 

the high quality water. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

7.d.i: Section B 

Comment ID 0247-A2.001.002 

Author Name: Turner Judson 

Organization: Georgia Department of Natural Resources 

High Quality Waters 

Proposed 40 CFR 131.12(b)(1) requires states to identify high quality waters by either a parameter-by-parameter basis 

or a water body-by-water body basis. Since 1997, as documented in our Antidegradation Implementation Procedures, 

EPD has considered all waters of the state to be high quality waters. The proposed regulation may be interpreted to 

require EPD to cease this more stringent practice of designating all waters as Tier 2, or high quality waters, and 

designate some waters as Tier 1 waters. We recommend that the regulation acknowledge that considering all waters as 

high quality waters meets the requirements of the regulation. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section B 

Comment ID 0249-A2.001.010 

Author Name: Calamita F. Paul 

Organization: General Counsel on behalf of The Wet Weather Partnership et al. 

We understand EPA's proposal to include four principal parts. 

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A. The Basis for Tier Designations 

First, the Agency confirms that the states are free to implement Tier 2 protections on either a waterbody or pollutant-bypollutant basis. This is proper and we urge the Agency to continue to allow this choice of approach so as not to 

constrain the states' discretion in this regard. 

The draft regulation goes on to propose that Tier 2 protections may not be excluded solely because one, but not all, of 

the water body uses specified by the CWA are not attained. Put another way, the antidegradation tier must be 

established for each applicable designated use. Thus, for example, a water body could be classified as Tier 1 for public 

water supply purposes but Tier II for aquatic life protection. If that is what the Agency intends, the Associations are okay 

with that clarification. If, however, the Agency intends something else in the part of the proposed rule, we believe EPA 

should republish the change with further clarifying explanation. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

7.d.i: Section B 

Comment ID 0261-A2.001.010 

Author Name: Bartlett Drew 

Organization: Florida Department of Environmental Protection 

2) Identifying High Quality Waters. 

The Department supports EPA's proposal to allow states to identify high quality waters on a parameter-by-parameter 

basis or on a waterbody-by-waterbody basis. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

Comment ID 0266-A2.001.006 

Author Name: Reese Thomas 

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Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 

6. Tier 2 and 2.5 waters are high quality waters 

The FWF and the Davises request EPA amend Section 131.12(b) to require EPA's proposed high waters identification 

criteria be applied to all Tier 2 and 2.5 waters. States and tribes must use all relevant water quality data and information 

to conduct an "overall holistic assessment" of the characteristics of Tier 2 and 2.5 waters to determine whether a water 

body would receive Tier 2 or Tier 2.5 protection. At a minimum states and tribes must consider the factors EPA listed on 

page 54527 of the September 4 notice. 

The available assimilative capacity for any given pollutant must always be subject Tier 2 protection and Tier 2 reviews . 

See, EPA's 1998 ANPRM, pg. 36782. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section B 

7.d.iii 

Comment ID 0266-A2.001.015 

Author Name: Reese Thomas 

Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 

6. The FWF and the Davises request EPA amend 40 CFR Section 131.12(b) to require states and tribes to adopt 

WQSs that define Tier 2.0 and Tier 2.5 waters as high quality waters, and states and tribes must use all relevant water 

quality data and information to conduct an "overall holistic assessment" of the characteristics of Tier 2 and 2.5 waters to 

determine whether a water body would receive Tier 2 or Tier 2.5 protection. At a minimum states and tribes must 

consider the factors EPA listed on page 54527 of the September 4 notice. The available assimilative capacity for any 

given pollutant must always be subject Tier 2 protection and Tier 2 reviews . See, EPA's 1998 ANPRM, pg. 36782. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section B 

Comment ID 0268-A2.001.013 

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Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

We agree that how states identify which waters, and activities, are subject to the Tier 2 review process is a key issue. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

Comment ID 0271-A1.001.006 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

6. Addition of paragraph (b)(1) to § 131.12. The Pueblo of Sandia agrees with the additions to this paragraph. The 

Pueblo of Sandia also would like the EPA to realize that each individual state and tribe are different and allow each 

individual state and tribe to have discretion on how to conduct Tier 2 reviews. Tier 2 reviews should be left to the 

individual entities not EPA. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

Comment ID 0278-A2.001.014 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

Identification of High Quality Waters 

As EPA properly recognizes, states have the authority and discretion to identify high quality waters on either a 

parameter-by-parameter or waterbody-by-waterbody basis. EPA's proposal generally tracks the rationale of the federal 

courts that have addressed and affirmed the waterbody-by-waterbody option on the basis of an overall holistic 

assessment of the chemical, biological and physical characteristics of any particular waterbody. However, the proposal 

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would set an entirely new limitation on state authority by specifying that a state may not exclude a waterbody from high 

quality protection "solely because not all of the uses specified in CWA section 101(a)(2) are attained." If EPA believes 

that a state has done so, then EPA could disapprove the state's action under the auspices of reviewing the state's 

standards submittal. This does not appear to be the best or most appropriate mechanism for EPA to contest a state 

decision to list a waterbody as Tier 1 as opposed to Tier 2 under the state's antidegradation policy. Instead, NACWA 

believes that if a state denies Tier 2 antidegradation review in a particular permit proceeding involving a waterbody that 

should be - but is not - listed as high quality, then EPA or an interested third party would have immediate recourse to 

challenge the state's permit decision. NACWA believes that this is a better and more direct option than setting a new 

nationally-applicable limitation as part of the water quality standards regulation, because it respects state discretion in 

listing waters, while at the same time protecting against error at the point when those listings are in fact applied. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

7.d.i: Section B 

Comment ID 0283-A1.001.012 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

2. Identification of High Quality Waters 

Since antidegradation reviews are tied to effluent limitations, the better approach is for the antidegradation analysis to 

be done only on a parameter-by-parameter basis and only where the water quality is better than the applicable water 

quality criteria. The State would then decide how much of the remaining assimilative capacity to delegate, if any, to 

that particular discharge. 

Nevertheless, States should be given the alternative, at their discretion, to determine whether waters are considered 

"high quality" on a waterbody-by-waterbody basis. 

Response 

For response to this comment, see the following response essay(s): 

7.d.i 

7.d.i: Section A 

7.d.iii 

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7.D.II - ANTIDEG HQ - GEN OPP 

Comment ID 0119-A1.001.008 

Author Name: Lemke Lee 

Organization: Georgia Mining Association 

High Quality Waters 

Regarding the identification of high-quality waters, EPA's response to the resolution of the Environmental Council of the 

States that EPA should minimize the use of interim guidance, draft policy, etc., and requiring Regional Administrators to 

require compliance by their co-regulator states to such policies does not merit codifying EPA's former guidance as 

mandatory regulatory requirements. The EPA should leave the states the flexibility intended under the Act to identify 

high-quality waters as appropriate for their local conditions. Regardless of whether guidance is informal or codified in 

regulation, it is more appropriate for guidance to be a set of recommendations from EPA to the states, not an exertion of 

additional top-down, one size fits all authority over state and tribal programs operating under unique, localized 

conditions. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0129-A2.001.010 

Author Name: Steidel Robert 

Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc. 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

EPA proposes that Tier 2 protections may not be excluded solely because one, but not all, of the water body uses 

specified by the CWA are not attained. VAMWA believes that any such mandatory limitation is entirely unnecessary, as 

proposed it is not adequately defined, and it improperly intrudes on the states' primacy in water quality standards. If in a 

permit proceeding a state unnecessarily denies Tier 2 protections to a water body, EPA and third parties have a right to 

address and challenge that as a part of the permit process. 

If however EPA should adopt such a restriction, we suggest that as proposed the change is not sufficiently clear in 

informing the states of their obligations or in any limitation thereof, and it runs the risk of a further unintended 

curtailment in the states' primary jurisdiction as to this third element of water quality standards. For example, we believe 

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it would improperly curtail the states' jurisdiction if EPA's regulatory wording were considered to prohibit a Tier 1 

designation in a case where multiple toxic or other pollutants affected the "protection and propagation of fish [and] 

shellfish" (CWA § 101(a)(2), cited by EPA in proposed 40 CFR § 131.12(b)(1)), because of non-curtailment in other 

uses such as (again by way of example) "recreation ... on the water," (CWA § 101(a)(2). 

We believe that any arguably proper and allowable restriction on the states would have to be more limited, and would 

reflect what we believe to be the current practices of many of the states. Many of the states would not consider waters 

ineligible for Tier 2 protections if, for example, (1) bacterial concentrations from agriculture or natural sources caused 

exceedances of the recreational criteria for e. Coll, but fish and wildlife resources were unimpaired; or (2) mercury, 

PCBs or other legacy pollutants brought about concentrations in fish or shellfish and a ban on human consumption, but 

the natural viability of the wildlife itself was unimpaired. 

Accordingly, we recommend that EPA (if it were to proceed with this part of the proposal) clearly limit in its adoption 

preamble the scope of any restrictions on the states' rights to adopt, amend and apply their own water quality 

standards, using the examples above and others as appropriate. We also recommend that EPA change its now 

proposed regulatory wording as shown below. Our change addresses the elements of uses specified in the CWA 

because the specification of uses in section 101(a)(2) (and in 40 CFR § 131.10(a)) is very general ("protection and 

propagation of fish, shellfish") and fails to distinguish between uses involving human consumption, predator 

consumption, sport fishing or other harvesting, and the natural viability of wildlife for its own purposes. 

(b)(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body basis at 

the State's discretion, but must not exclude any water body from high quality water protection solely because not all of 

the [begin new text] individual elements of the [end new text] uses specified in CWA section 101(a)(2) are attained. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0131-A1.001.012 

Author Name: Rager David 

Organization: Sanitation District Number 1 of Northern Kentucky 

Comment 5 - The addition of § 131.12(b) is of questionable value and is problematic. This language should be 

removed. § 131.12(b)(2), in particular, greatly expands EPA's authority over the implementation of state antidegradation programs, and makes it easy for EPA or other stakeholders to challenge the state's decision to allow a 

"purported" lowering of water quality or to force the state or permittee to conduct endless studies to prove that there is 

not a more practicable alternative. If this section is not removed, EPA should address the following concerns. 

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Comment 5a - The revisions to § 131.12(b)(1) regarding high quality waters are unclear and must be appropriately 

revised or removed. In § 131.12(b)(1), EPA states that high quality waters can be identified on either a parameter-byparameter or designational (waterbody-by-waterbody) basis but "must not exclude any water body from high quality 

water protection solely because not all of the uses specified in CWA section 101(a)(2) are attained." 

The proposed revision requires multiple points of clarification. First, it is not clear why EPA has proposed this change 

since the agency has supported the use of a waterbody-by waterbody approach in several states. Kentucky's 

antidegradation policy (401 Ky. Admin. Regs. 10:030) allows the state to designate waters using the waterbody-by 

waterbody approach. This policy has been upheld by the courts (Kentucky Waterways Alliance, et al. v. Johnson, Case 

No. 06-5614) and has been approved by EPA. 

Also, it is not clear from the language how many designated uses must be impaired before EPA would consider a 

waterbody to be excluded from high quality, Tier 2 water quality protection. In the Federal Register (78 FR 54528), EPA 

provides an example in which a waterbody that is designated for two uses, aquatic life and primary contact recreation, 

and is impaired for both could be excluded from Tier 2 protection ("Waterbody A" in EPA's example). If that same water 

were impaired for only one use however, the water could not be excluded from Tier 2 protection ("Waterbody B" in 

EPA's example). EPA's example indicates that only in cases where all designated beneficial uses are impaired can a 

waterbody be considered Tier 1; however, the proposed language seems to suggest that a waterbody can be assigned 

Tier 1 protection if some designated beneficial uses are impaired. EPA should provide a clearer distinction in regards to 

when a waterbody-by-waterbody approach would and would not require Tier 2, high quality water protection. 

We also request that the proposed language included in this section be revised to clarify that waters identified on a 

parameter-by-parameter basis may be excluded from high quality water protection for those individual parameters 

which have been identified as impaired. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.d.iii 

7.e.ii 

Comment ID 0133-A2.001.012 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

g. LDEQ recognizes the need for general guidelines from EPA regarding the identification of high quality/Tier 2 waters; 

however, the LDEQ does not support the current proposed language that states high quality waters are identified... on a 

water body-by-water body basis at the State's discretion, but must not exclude any water body from high quality water 

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protection solely because not all of the uses specified in the SWA section 101(a)(2) are attained. 

i. The exception regarding all uses not being attained supersedes the states' option to designate Tier 2 waters using a 

holistic approach, rendering the entire water body-by-water body approach as a moot option. 

ii. Alternatively, LDEQ suggests including a designated use option. Under conditions in which a water body has water 

quality better than necessary to support the entire designated use (i.e. fish and wildlife propagation), it would be 

considered as a Tier 2 water. As 40 CFR 131.12(a)(2) specifically identifies the propagation of fish and wildlife and 

recreation (101(a)(2) uses), we feel the designated use approach is much more consistent with the CWA goals than 

either of the other approaches 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section C 

Comment ID 0133-A2.001.019 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

g. LDEQ requests that language be included to allow for use of state specific approaches as the proposed rule only 

discusses two main approaches (parameter by parameter and water body by water body) which seems limiting since 

LDEQ does not currently use either one. LDEQ uses the designated use approach. 

h. Specifically, LDEQ notes that the parameter by parameter approach will be problematic as this approach would 

require the Agency to obtain analytical data for any/all pollutants prior to making any permit decisions; many general 

permits are not required to submit analytical data as part of the application process. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0134-A1.001.013 

Author Name: Shea III Quinlan 

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Organization: Edison Electric Institute 

• Anti-degradation approach - EPA's proposal would inappropriately require anti-degradation reviews for waters that are 

on a state's section 303(d) list of impaired waters. This is contrary to the antidegradation implementation policies of 

many states and would misallocate state resources away from protecting high quality waters. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0145-A2.001.013 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

• Anti-degradation approach - EPA's proposal would inappropriately require anti-degradation reviews for waters that are 

on a state's section 303(d) list of impaired waters. This is contrary to the antidegradation implementation policies of 

many states and would misallocate state resources away from protecting high quality waters. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0149-A2.001.007 

Author Name: Michael Gene 

Organization: City of Pueblo Wastewater Department 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

a. Identification of high-quality waters. 

The Proposed Rule would reverse the current law by imposing restrictions on the waterbody-by-waterbody approach to 

identifying high quality waters. The Proposed Rule states that a waterbody may not be excluded from high quality water 

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protection "solely" because it is impaired for one of the uses specified in CWA section 101(a)(2). 

This is at odds with the court's ruling in Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th Cir. 2008). That 

decision upheld regulations that allowed a waterbody to be excluded from protection if the waterbody is impaired for 

either aquatic life or recreation uses. 

EPA's inclusion of language that calls into question the Kentucky Waterways holding is very likely to prompt litigation. 

Litigation is made even more likely if EPA adopts its proposal because it states that a waterbody may not be excluded 

"solely" because it does not attain all of the 101(a)(2) uses. It is unclear how it is to be judged whether a waterbody is 

excluded "solely" because of failure to attain one of the 101(a)(2) uses. This introduces further ambiguity and 

unnecessarily casts doubt on established legal precedent. 

States have implemented antidegradation programs for many years. EPA's proposal is an unnecessary intrusion on 

state implementation and a reversal of current law, which will not provide any actual or perceived environmental benefit. 

This intrusion would not result in improvements in water quality, because it would divert limited state resources from the 

protection of truly high-quality waters. 

EPA should revise its proposal as follows: 

§ 131.12 Antidegradation Policy and Implementation Methods 

... 

(b)(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body basis at 

the State's discretion [begin strikeout] , but must not exclude any water body from high quality water protection solely 

because not all of the uses specified in CWA section 101(a)(2) arc attained; [end strikeout] and 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.d.iii 

Comment ID 0151-A1.001.006 

Author Name: Tate Michael 

Organization: Kansas Department of Health and Environment 

Tier 2 Waters 

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parameter. EPA holds the view that waters should not be excluded as Tier 2 simply because not all 101(a) (2) uses are 

attained. However, we would encourage EPA to examine that position in light of Section 303(d)(4)(B), which seems to 

hint that application of antidegradation applies to waters whose water quality exceeds that necessary to support their 

designated uses. A liberal interpretation of that statute would imply that the converse situation restricts antidegradation 

considerations for those waters whose quality is cause for listing as unattained. 

Kansas supports applying antidegradation as an ad hoc evaluation for specific pollutants to be discharged by new or 

expanding permitted sources. Attaining Tier 2 status is a function of the water body, its existing water quality (relative to 

a given pollutant) and the proposed facility discharging that given pollutant. We think those factors complicate the task 

of compiling a list of Tier 2 waters whose status restricts introduction of new or expanded pollutant loads. However, 

Kansas believes its list of Exceptional State Waters (ostensibly Tier 2.5) provides a stationary census of such protected 

waters. Tier 2 antidegradation for Kansas is an evaluation process, not a list of high quality waters. Therefore, working 

antidegradation on a pollutant basis is the more amenable approach for Kansas. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section B 

7.d.ii: Section C 

Comment ID 0156-A1.001.010 

Author Name: Jackie Kepke Adam Link 

Organization: California Association of Sanitation Agencies and Tri-TAC 

If, despite these concerns, USEPA elects to adopt the proposed methods as described, several changes are needed. 

First, as it relates to the identification of high-quality waters, CASA and Tri-TAC are concerned with the requirement that 

States and tribes would need to undertake a process of identifying high quality waters on a parameter-by-parameter or 

waterbody-by-waterbody basis. (FR 54527-54530) The concern stems not from the fact that the States have the 

authority to identify high quality waters, nor the particular process for doing so articulated in the proposed change. 

Rather, we are concerned that the language could be improperly construed to require states or tribes to undertake a 

proactive process of identifying all high-quality waters in their jurisdiction upon promulgation of the new regulations. 

CASA and Tri-TAC would appreciate clarification on this issue and potential modifications to the proposed regulatory 

changes that would specify that no such large-scale, proactive endeavor is required under this section, with a 

concomitant opportunity to comment on the clarification. If USEPA confirms that such a process is required, then the 

rule should indicate that Integrated Reports prepared using USEPA's five-category system satisfy this requirement, 

since such waterbodies are identified with the category system. 

Response 

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7.d.ii 

Chapter 2 - Comment Documents Antidegradation 

For response to this comment, see the following response essay(s): 

7.d.ii: Section C 

Comment ID 0157-A1.001.005 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

Designation of High Quality Waters 

EPA has proposed to amend 40 CFR 131.12 to provide that states that identify high quality waters on a waterbody-bywaterbody basis, such as Kentucky, must not exclude a waterbody from "high quality water protection" "solely because 

not all of the uses specified in CWA Section 101(a)(2) are attained." In the preamble, EPA provides an example of a 

waterbody that may be impaired for primary contact recreation, but not aquatic life, as one that should be subject to 

high quality water antidegradation review. 

EPA's proposal is an improper intrusion on the rights of states to develop their own antidegradation approaches. In the 

case of Kentucky, its use of a waterbody-by-waterbody approach to antidegradation review was approved by the 

United States Court of Appeals for the Sixth Circuit in Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th Cir. 

2008). EPA was aware of how Kentucky implemented antidegradation review on a waterbody-by-waterbody basis and 

approved the state's antidegradation provisions. As the court noted, the waterbody-by-waterbody approach "allows 

States and Tribes to focus limited resources on protecting higher-value State or Tribal Waters." Id. at 477. The 

Proposed Rule would deprive states of that policy option and substantially increase the burden on states by requiring 

high-level antidegradation review (as delineated in the rule and discussed below) on waters that are impaired for one or 

possibly even multiple uses. 

EPA's proposed rule would conflict with the previously approved implementation procedures adopted by Kentucky. 

EPA's interpretation represents an intrusion on the state's authority under the Clean Water Act to define its own water 

quality standards based upon its evaluation of uses, particularly in an instance where a waterbody is not of sufficient 

quality to meet all uses. This appears to be an attempt to force all states that utilize a waterbody-by-waterbody 

approach to effectively switch to a parameter-by-parameter approach for all non-impaired uses. If EPA adopts the 

provisions on high quality water classifications at 40 CFR 131.12(b)(1), at a minimum it should clarify that previously 

approved state antidegradation policies remain in effect and do not need to be amended. 

It is also unclear as to how the phrase "solely because not all of the uses specified" are attained in 40 CFR 131.12(b)(1) 

will be interpreted. The likely result will be increased litigation over NPDES permit issuance in any state that implements 

a waterbody-by-waterbody approach unless the state acquiesces with EPA's preferences and utilizes a parameter-byparameter approach for all non-impaired uses. It is important to note that this is not a mere clarification of existing 

requirements, but would clearly impose new duties and obligations on some states to change regulatory classifications 

of waterbodies and increase the number of waterbodies subject to high quality review. 

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Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.d.iii 

Comment ID 0158-A1.001.008 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

KDOW and EPA have long experience with antidegradation policy. Following nearly fourteen years of litigation, 

Kentucky's waterbody-by-waterbody approach to antidegradation review was approved by the United States Court of 

Appeals for the Sixth Circuit in Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th Cir. 2008). EPA was aware 

of how Kentucky implemented antidegradation review on a waterbody-by-waterbody basis, approved the state's 

antidegradation provisions, and vigorously defended the decision. As the court noted, quoting EPA's own language in 

its Advanced Notice of Proposed Rulemaking, 63 FR 36742 (July 7, 1998 [63 FR at 36783] the waterbody-bywaterbody approach "allows States and Tribes to focus limited resources on protecting higher-value State or Tribal 

Waters." Id. at 477. This is still true, and EPA again approved amendments to Kentucky's Antidegradation Policy 

Implementation regulation in November, 2010, which continues to be conducted successfully on a waterbody-bywaterbody approach. The proposed WQS regulation contradicts EPA's long history of approving and successfully 

defending the waterbody-by-waterbody approach and begs the question why would EPA seek to make such a change 

when it approved the waterbody-by-waterbody approach to antidegradation as recently as 2010. The proposed WQS 

regulation contradicts the ruling of the Sixth Circuit Court and the precedent of EPA's approval of Kentucky's 

Antidegradation Policy Implementation Methodology as well as EPA's previously published position regarding the 

waterbody-by-waterbody approach. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.d.iii 

Comment ID 0158-A1.001.016 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

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[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

The proposed WQS regulation amends §131.12(b)(1) to require that States that identify high quality waters on a 

waterbody-by-waterbody basis, such as Kentucky, must not exclude a waterbody from "high quality water protection" 

"solely because not all of the uses specified in CWA Section 101(a)(2) are attained." In the preamble, EPA provides an 

example of a waterbody that may be impaired for primary contact recreation, but not aquatic life, as one that should be 

subject to high quality water antidegradation review. This proposed amendment seems to eliminate the waterbody-bywaterbody option for States and effectively mandate that States adopt a parameter-by-parameter approach to Tier II 

review, the "solely because not all of the uses specified in CWA Section 101(a)(2) are attained" language 

notwithstanding. This proposal is contrary to the ruling in Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th 

Cir. 2008). In that case, following nearly fourteen years of litigation, Kentucky's use of a waterbody-by-waterbody 

approach to antidegradation review was approved by the Sixth Circuit Court of Appeals. As the court noted, the 

waterbody-by-waterbody approach "allows States and Tribes to focus limited resources on protecting higher-value State 

or Tribal Waters." Id. at 477,echoing EPA's language recognizing the advantages of the waterbody-by-waterbody 

approach to identification of high quality waters in its Advanced Notice of Proposed Rulemaking, 63 FR 36742, 36783 

(July 7, 1998). EPA again approved amendments to Kentucky's Antidegradation Policy Implementation regulation in 

November, 20010. Kentucky's approach to antidegradation, which unlike many states is has codified it antidegradation 

implementation policy in regulation, continues to be conducted successfully on a waterbody-by-waterbody approach. 

This change would overstep EPA's authority provided by §303(c) of the Act and contradicts previously litigated and 

resolved issues. Identification of high quality/Tier 2 waters is a State primacy decision and KDOW appreciates the 

preamble language clarifying this fact [78 FR 54527]. KDOW believes that the incorporation of the 303(d) list into the 

States' decision-making is within the States' authority. As the courts have concluded that the water body-by-water body 

approach is acceptable, the mechanism by which water bodies receive this level of protection should be at the State's 

discretion. 

EPA's proposed rule conflicts not only with Kentucky's approved implementation procedures but would also be an 

improper intrusion on the rights of States to develop water quality standards based upon evaluation of uses, in 

particular where a waterbody is not of sufficient quality to meet all uses. The amendments would essentially deprive 

states of the waterbody-by-waterbody option and effectively mandate States to adopt the parameter-by-parameter 

approach for all non-impaired uses. As EPA has recognized in its previously published statements, and in court 

documents, this would substantially increase the resource burden on states by requiring antidegradation review on 

waters that are impaired for one or possibly even multiple uses. This approach contradicts a long history of EPA 

approving and successfully defending the waterbody-by-waterbody approach. It is beyond KDOW's comprehension that 

EPA would seek to re-open this issue which has been settled by the courts In addition, requiring States to identify high 

quality waters use-by-use would additionally negate any resource advantage of the waterbody-by-waterbody approach 

and would serve to seriously tax States' limited resources. This proposal appears obtuse to the resource demands on 

the States in a budgetary climate that has a poor prognosis for additional resources for States to implement the Act. 

The phrase "solely because not all of the uses specified" are attained in §131.12(b)(1) is ambiguous and it is not clear 

how this would be interpreted. If EPA determines to pursue this rule and retain this language, the likely result will be 

increased litigation with regard to issuance of NPDES permits in a State implementing a waterbody-by-waterbody 

approach. In addition, the proposed language is not merely clarification of existing requirements; intended or otherwise 

the proposed language would impose new duties and obligations on some States increasing the number of waterbodies 

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subject to Tier II review. 

KDOW suggests that EPA strike §131.12(b)(1). If EPA determines to adopt this language, KDOW's suggests the 

following revision: 

"§131.12(b)(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body 

basis at the State's discretion [begin strikeout] , but must not exclude any water body from high quality water protection 

solely because not all of the uses specified in CWA section 101(a)(2) are attained [end strikeout]" 

If EPA adopts the provisions regarding high quality water classifications as proposed at §131.12(b)(1), at a minimum it 

should clarify that previously approved state antidegradation policies remain in effect and do not need to be amended. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section C 

7.d.iii 

Comment ID 0160-A2.001.009 

Author Name: West Jeff 

Organization: Xcel Energy 

[This excerpt contains red-line/strike-out text. Refer to the original document for recommended edits.] 

a. Identification of high-quality waters. 

The Proposed Rule would reverse the current law by imposing restrictions on the waterbody-by-waterbody approach to 

identifying high quality waters. The Proposed Rule states that a waterbody may not be excluded from high quality water 

protection "solely" because it is impaired for one of the uses specified in CWA section 101(a)(2). This is at odds with the 

court's ruling in Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th Cir. 2008). That decision upheld 

regulations that allowed a waterbody to be excluded from protection if the waterbody is impaired for either aquatic life or 

recreation uses. 

EPA's inclusion of language that calls into question the Kentucky Waterways holding is very likely to prompt litigation. 

Litigation is made even more likely if EPA adopts its proposal because it states that a waterbody may not be excluded 

"solely" because it does not attain all of the 101(a)(2) uses. It is unclear how it is to be judged whether a waterbody is 

excluded "solely" because of failure to attain one of the 101(a)(2) uses. This introduces further ambiguity and 

unnecessarily casts doubt on established legal precedent. 

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States have implemented antidegradation programs for many years. EPA's proposal is an unnecessary intrusion on 

state implementation and a reversal of current law, which will not provide any actual or perceived environmental benefit. 

This intrusion would not result in improvements in water quality, because it would divert limited state resources from the 

protection of truly high-quality waters. 

EPA should revise its proposal as follows: 

§ 131.12 Antidegradation Policy and Implementation Methods 

... 

(b)(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body basis at 

the State's discretion [begin new text].[end new text] [begin strikeout], but must not exclude any water body from high 

quality water protection solely because not all of the uses specified in CWA section 101(a)(2) are attained; [end 

strikeout] and 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.d.iii 

Comment ID 0165-A2.001.009 

Author Name: Gunderson Steven 

Organization: Colorado Department of Public Health and Environment 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

8. Antidegradation Implementation - Identification of High Quality Waters 

Colorado does not support the added restrictions on waterbody-by-waterbody (WbW) approach. The ANPRN and the 

WQS Handbook both validate the WbW approach. In the Kentucky Waterways Alliance decision (6th Cir 2008), the 

Court upheld EPA's approval of the WbW approach. The court decision in Ohio Valley Envir. Coalition v Horinko 

(S.D.W.Va 2003) also reached that conclusion. EPA has approved many state WQS AD programs that use the WbW 

approach including: Alabama, Colorado, Idaho, Kentucky, Nebraska, Oklahoma and Pennsylvania. These programs 

were developed without the proposed restrictions and reflect the variety of state programs that exist. We do not believe 

that EPA has identified a compelling need to restrict the use of WbW. 

Colorado offers the following alternative to EPA's proposed language at 131.12(b)(1). 

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(1) High quality waters are identified on a parameter-by-parameter basis or on a waterbody-by-waterbody basis at the 

State's discretion [begin strikeout] but must not exclude any waterbody from high quality water protection solely 

because not all of the uses specific in CWA section 101(a)(2) are attained; [end strikeout] and 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.d.iii 

Comment ID 0166-A2.001.016 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

The proposed WQS regulation amends §131.12(b)(1) to require that States that identify high quality waters on a 

waterbody-by-waterbody basis, such as Kentucky, must not exclude a waterbody from "high quality water protection" 

"solely because not all of the uses specified in CWA Section 101(a)(2) are attained." In the preamble, EPA provides an 

example of a waterbody that may be impaired for primary contact recreation, but not aquatic life, as one that should be 

subject to high quality water antidegradation review. This proposed amendment seems to eliminate the waterbody-bywaterbody option for States and effectively mandate that States adopt a parameter-by-parameter approach to Tier II 

review, the "solely because not all of the uses specified in CWA Section 101(a)(2) are attained" language 

notwithstanding. This proposal is contrary to the ruling in Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th 

Cir. 2008). In that case, following nearly fourteen years of litigation, Kentucky's use of a waterbody-by-waterbody 

approach to antidegradation review was approved by the Sixth Circuit Court of Appeals. As the court noted, the 

waterbody-by-waterbody approach "allows States and Tribes to focus limited resources on protecting higher-value State 

or Tribal Waters." Id. at 477,echoing EPA's language recognizing the advantages of the waterbody-by-waterbody 

approach to identification of high quality waters in its Advanced Notice of Proposed Rulemaking, 63 FR 36742, 36783 

(July 7, 1998). EPA again approved amendments to Kentucky's Antidegradation Policy Implementation regulation in 

November, 20010. Kentucky's approach to antidegradation, which unlike many states is has codified it antidegradation 

implementation policy in regulation, continues to be conducted successfully on a waterbody-by-waterbody approach. 

This change would overstep EPA's authority provided by §303(c) of the Act and contradicts previously litigated and 

resolved issues. Identification of high quality/Tier 2 waters is a State primacy decision and KDOW appreciates the 

preamble language clarifying this fact [78 FR 54527]. KDOW believes that the incorporation of the 303(d) list into the 

States' decision-making is within the States' authority. As the courts have concluded that the water body-by-water body 

approach is acceptable, the mechanism by which water bodies receive this level of protection should be at the State's 

discretion. 

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EPA's proposed rule conflicts not only with Kentucky's approved implementation procedures but would also be an 

improper intrusion on the rights of States to develop water quality standards based upon evaluation of uses, in 

particular where a waterbody is not of sufficient quality to meet all uses. The amendments would essentially deprive 

states of the waterbody-by-waterbody option and effectively mandate States to adopt the parameter-by-parameter 

approach for all non-impaired uses. As EPA has recognized in its previously published statements, and in court 

documents, this would substantially increase the resource burden on states by requiring antidegradation review on 

waters that are impaired for one or possibly even multiple uses. This approach contradicts a long history of EPA 

approving and successfully defending the waterbody-by-waterbody approach. It is beyond KDOW's comprehension that 

EPA would seek to re-open this issue which has been settled by the courts In addition, requiring States to identify high 

quality waters use-by-use would additionally negate any resource advantage of the waterbody-by-waterbody approach 

and would serve to seriously tax States' limited resources. This proposal appears obtuse to the resource demands on 

the States in a budgetary climate that has a poor prognosis for additional resources for States to implement the Act. 

The phrase "solely because not all of the uses specified" are attained in §131.12(b)(1) is ambiguous and it is not clear 

how this would be interpreted. If EPA determines to pursue this rule and retain this language, the likely result will be 

increased litigation with regard to issuance of NPDES permits in a State implementing a waterbody-by-waterbody 

approach. In addition, the proposed language is not merely clarification of existing requirements; intended or otherwise 

the proposed language would impose new duties and obligations on some States increasing the number of waterbodies 

subject to Tier II review. 

KDOW suggests that EPA strike §131.12(b)(1). If EPA determines to adopt this language, KDOW's suggests the 

following revision: 

"§131.12(b)(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body 

basis at the State's discretion [begin strikeout] , but must not exclude any water body from high quality water protection 

solely because not all of the uses specified in CWA section 101(a)(2) are attained [end strikeout]" 

If EPA adopts the provisions regarding high quality water classifications as proposed at §131.12(b)(1), at a minimum it 

should clarify that previously approved state antidegradation policies remain in effect and do not need to be amended. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section C 

7.d.iii 

Comment ID 0167-A1.001.009 

Author Name: Anderson Paul 

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Chapter 2 - Comment Documents Antidegradation 

Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District 

D. Antidegradation Implementation 

i. Part 1 - Identifying High Quality Waters 

The Lower Fountain District appreciates the need to identify and protect high quality or "Tier 2" waters and to continue 

striving toward achieving the CWA's goals. However, it is not clear whether EPA intends that once a water is identified 

as Tier 2 it is considered Tier 2 for all uses - the exact converse of EPA's stated concern over waters not being 

identified as Tier 2 because one of the uses/goals in CWA §101(a)(2) is not met (p. 54527, second column). Thus the 

District wishes to confirm (under Part 1 of EPA's proposal, p. 54527) that a Tier 2 identification for a use only applies for 

that specific use rather than for all purposes, which the District believes is EPA's intent based on the language of 

proposed Section 131.12(b). Additionally, the District would like clarification on whether there would be a "tipping point" 

at which certain waters could be considered Tier 2 for all uses, even if not all (or most) CWA §101(a)(2) uses are met 

currently. The District's main concern is that certain waters may be identified as Tier 2 when "available data to conduct 

an overall holistic assessment" (p. 54527, third column) is either inadequate or a legitimate and substantial 

disagreement exists over the data (e.g., data validity, what is purports to demonstrate, how obtained) as concerning 

uses not currently made of a water body. 

The District supports retaining the "water-body by water-body" approach per EPA's past approval and to allow states 

and tribes continued discretion on how to conduct Tier 2 reviews. The District further requests confirmation that a water 

body impaired for recreational or aquatic use is not "high quality" water. As noted in Kentucky Waterways v. Johnson, 

540 F.3d 466, 479 (6th Cir. 2008), in approving Kentucky's exclusion of impaired waters from Tier 2 EPA acknowledged 

as a "federal requirement" that a water body "must support" both aquatic and recreational uses for that water body to be 

considered "high quality". The District submits that a loose application of "high quality" designations will lead to 

unintended consequences on the District and similar entities, driving water quality based effluent limits far lower than 

necessary to protect the use while in turn dramatically increasing permit renewal costs due to stricter antidegradation 

limits. In effluent dominated streams, dischargers like the District otherwise become the de facto dilution source for all 

other pollution sources. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section C 

Comment ID 0170-A1.001.011 

Author Name: Faggert Pamela 

Organization: Dominion Resources Services, Inc. 

08/04/2015 05:01 PM EDT 2-618 
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In addition to the general concern regarding the responsibility of States for antidegradation implementation, we have 

two specific concerns regarding provisions in the proposed regulatory changes. First, the proposed revisions would 

prohibit States from removing a Tier 2 designation (high-quality waters) if only one of the designated uses is not being 

attained. In this case a water could be impaired and not meeting a designated use but still be classified as a high-quality 

water and have to undergo antidegradation review if other uses were being met. States should not be required to 

maintain high quality water protection for impaired waters. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

08/04/2015 05:01 PM EDT 2-619 
Chapter 2 - Comment Documents Antidegradation 

Comment ID 0172-A2.001.005 

Author Name: Foster Tad 

Organization: Tad S. Foster Attorney at Law on behalf of three small municipal dischargers 

EPA seems to assert that States are not implementing antidegradation. It fails to consider that the implementation 

requirements of (a)(2) are so onerous that they are avoided in a state that is implementing antidegradation broadly and 

in nearly every permit. Colorado has very few examples of dischargers seeking an alternatives review. Dischargers 

retain old effluent limits and loading associated with them, rather than increase loading and incur the review process. 

This is intimidation of the impoverished. 

Colorado has by regulation and guidance detailed implementation steps. Antidegradation review is often triggered by a 

small increase in hardness that causes a tiny increase in the standard, that necessitates a determination of significance, 

which requires data on low flow parameter quality as of a certain date and a comparison to the standards, and then a 

determination of remaining with the old effluent limit or seeking a review. The cost of permitting continues to go up as 

the permit writer must calculate ever more potential effluent limits including both WQBELS and antidegradation-based 

effluent limits for the same parameters. Nothing really has been accomplished. 

The water body by water body designation approach was useful in managing incremental selection and increase in the 

number of waters needing antidegradation reviews. Colorado under pressure from Region VIII has reduced those "useprotected" designated water bodies to a handful. Nearly all water bodies are reviewable waters subject to the potential 

full review process. The wastewater plants continue to be the source of dilution to all of the other uncontrolled sources 

that continue to increase loading. Antidegradation is a misallocation of resources. 

The parameter-by-parameter approach fails to accommodate a holistic analysis that balances the presence of 

nonattainment of some parameters along with the better than necessary quality parameters and determines the value to 

the ecosystem of maintaining the better quality in the face of future TMDLS, revised standards of the nonattaining 

standards, and perhaps subcategories of uses to reflect the highest uses attainable, after all is said and done. There is 

a place for the water body designation approach that is that up-front holistic analysis that maintains the use without 

imposing lost costs of maintaining better than necessary quality. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii: Section C 

Comment ID 0175-A1.001.018 

Author Name: Canton Steven 

Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. 

08/04/2015 05:01 PM EDT 

7.d.ii 

2-620 
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In regards to part one of this section, 131.12(b)(1), EPA proposes that "[h]igh quality waters are identified on a 

parameter-by-parameter basis or on a water body-by-water body basis at the State's discretion, but must not exclude 

any water body from high quality water protection solely because not all of the uses specified in CWA section 101(a)(2) 

are attained." 

e. We agree that a water body-by-water body analysis should continue to be allowed; such has previously been 

approved by EPA in many states, including AL, CO, ID, KY, NE, OK, and PA. However, the rule states that a water 

body may not be excluded from high quality water protection because not all uses are attained. This statement 

inappropriately places restrictions on the states' discretion to utilize a water body-by-water body approach, and implies 

that EPA would evaluate and review high quality waters on the parameter-by-parameter basis, regardless of a state's 

determination and identification of high quality waters. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.d.iii 

Comment ID 0177-A2.001.006 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

a) Identification of High Quality Waters. EPA proposes that high quality waters be identified on a parameter-byparameter basis, such that a waterbody can be high quality for one parameter even though it is listed on the 303(d) list 

for another. NYSDEC does support the concept of identifying high quality waters on an expanded basis, but believes 

the parameter-by-parameter approach would be cumbersome and impractical. We suggest an alternative use-by-use 

approach. For instance, a water could be impaired for fishing due to PCB contamination, but still be high quality for 

swimming. Such identification of high quality/Tier 2 waters is a state primacy decision and should not be mandated. If 

the use-by-use approach is acceptable, the mechanism by which water bodies receive this level of protection should be 

at a state's discretion. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section C 

08/04/2015 05:01 PM EDT 2-621 
Chapter 2 - Comment Documents Antidegradation 

Comment ID 0180-A2.001.004 

Author Name: Hobson Chris 

Organization: Southern Company 

A. Identification of High Quality Waters 

EPA affirms that states may identify high quality waters on a parameter-by-parameter or on a waterbody-by-waterbody 

basis, at their discretion. But then EPA goes on to say that states "must not exclude any waterbody from high quality 

water protection solely because not all of the uses specified in CWA section 101(a)(2) are attained." Proposed 40 CFR 

§131.12(b)(1). This means that if a waterbody is meeting just one water quality criterion that supports a 

fishable/swimmable use, but not meeting any other water quality criteria, a state nonetheless may be compelled by EPA 

to designate the waterbody as high quality across-the-board. And if the state fails to do so, then EPA may disapprove 

the state's action under the auspices of reviewing the state's standards submittal. 

In the preamble to its Proposal, EPA suggests that a state may avoid this outcome by conducting "an overall holistic 

assessment" of the chemical, biological and physical characteristics of a waterbody to determine if it qualifies for, or 

should be denied, high quality water protection. 78 Fed. Reg. at 54527 col. 3. But this has the effect of imposing 

significant new obligations on states that elect to use the waterbody-by-waterbody approach, and thus creates a new 

administrative preference for states to switch to the parameter-by-parameter approach. 

We do not believe that it is appropriate for EPA to dictate, as a matter of federal regulation, that a state "must not 

exclude any waterbody from high quality water protection solely because not all of the uses specified in CWA section 

101(a)(2) are attained" and we request that this portion of the Proposal be removed. Doing so will protect state 

discretion, a key aspect of the antidegradation program that EPA claims it wants to reinforce. 

We note, as well, that if a state improperly designates a waterbody and thus denies antidegradation review in a 

particular permit proceeding involving a waterbody that should be, but is not, listed as high quality, then EPA (along with 

any interested third party) would have immediate recourse to challenge that aspect of the state's permit decision. 

Ensuring proper designations, as applied, seems to be a better and more direct option than what EPA proposes 

because it respects state discretion in listing waterbodies, while at the same time protecting against error at the point 

when those listings are in fact applied. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii: Section C 

Comment ID 0181-A2.001.009 

Author Name: Sims Shaun 

08/04/2015 05:01 PM EDT 

7.d.ii 

2-622 
Chapter 2 - Comment Documents Antidegradation 

Organization: Wyoming Association of Conservation Districts 

Page 54527 – E. Antidegradation Implementation: 1. The EPA Proposal – Part 1: Identification of High Quality Waters:
 

High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body basis at the
 

state's discretion, but must not exclude any waterbody from high quality water protection solely because not all of the
 

uses specified in CWA section 101(a)(2) are attained..
 

States and tribes using a parameter-by-parameter approach identify which waters are of high quality for purposes of a
 

Tier 2 review at the time the activity that would lower water is proposed.
 

Page 54527 - If all states and tribes used an approach for identifying high quality water whereby any impairment
 

rendered the water body ineligible for Tier 2 protection, almost half of the lakes would automatically be excluded from
 

Tier 2 high quality water protection. The EPA's view is that this approach would not be consistent with the objectives of
 

the CWA and the intent of the antidegradation regulation.
 

Page 54527 – The EPA would expect the state or tribe to use all the relevant available data to conduct an overall
 

holistic assessment of these characteristics in order to determine whether a water body would receive Tier 2 protection.
 

COMMENT:
 

WACD is unclear as to the intent and application of this tiered review of higher quality waters. It appears that EPA is
 

proposing a second layer of assessment for waters that may not meet a specific use and subsequently is listed on the
 

state's 303(d) list, yet may have a quality of water that exceeds the level necessary to support other uses. WACD fails
 

to see how this additional level of review and/or assessment is necessary. In Wyoming, WDEQ as well as local districts,
 

are already spending a large amount of time assessing waters and determining which waters need to be added to the
 

303(d) list. Wyoming has a process in place to identify and designate high quality waters that is working.
 

Page 54528 - E. Antidegradation Implementation: 1. The EPA Proposal – Part 1: Identification of High Quality Waters:
 

The EPA could also specify that states and tribes have discretion on how to conduct the Tier 2 reviews.
 

COMMENT:
 

WACD highly recommends that states and tribes have discretion on how to conduct the Tier 2 reviews.
 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.d.iii 

Comment ID 0182-A2.001.009 

Author Name: Hahn Martha 

08/04/2015 05:01 PM EDT 2-623 
Chapter 2 - Comment Documents Antidegradation 

Organization: The Colorado Wastewater Utility Council 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

High Quality Waters - § 131.12(b)(1): With respect to high quality (Tier 2) waters, it is not appropriate to include in that 

category segments that are water quality limited (e.g., "any segment where it is known that water quality does not meet 

applicable water quality standards, and/or is not expected to meet applicable water quality standards, even after the 

application of the technology-based effluent limitations required by sections 301(b) and 306 of the Act"). This approach 

is consistent with the overarching purposes of the Act while maintaining State flexibility in developing antidegradation 

policies to address site-specific considerations. 

Colorado uses a waterbody-by-waterbody approach which evaluates the overall condition for antidegradation purposes, 

and which has been a defensible and effective regulatory tool for many years. Colorado is a semi-arid state and has a 

long history of lawful water management activities conducted in accordance with the prior appropriation doctrine in 

order to put water to beneficial use. As such, many water bodies are impacted by diversion-related conditions that affect 

overall water quality conditions. 

We believe the proposed rule will put inappropriate and unnecessary restrictions on the waterbody-by-waterbody 

approach. Colorado has a robust and successful antidegradation program that takes a holistic view of water quality 

conditions in determining which water bodies are considered truly "high quality." 

Accordingly, we recommend the proposed language in § 131.12(b)(1) be modified as follows (proposed deleted 

language is shown as strikethrough and additional language is shown as underlined): 

(1) High quality waters are identified on a parameter-by-parameter basis or on a waterbody-by-water body basis at the 

State's discretion, [begin strikeout] but must not exclude any water body from high quality water protection solely 

because not all of the uses specified in CWA section 101(a)(2) are attained [end strikeout] [begin new text] taking into 

consideration appropriate chemical, biological, and physical characteristics [end new text]; and 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0184-A2.001.021 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

In particular, EPA proposes restrictions on the waterbody-by-waterbody approach to identifying high quality waters. 

EPA proposes that a waterbody may not be excluded from high quality water protection "solely" because it is impaired 

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for one of the uses specified in CWA section 101(a)(2). This is at odds with the court's ruling in Kentucky Waterways 

Alliance v. Johnson, 540 F.3d 466 (6th Cir. 2008). That decision upheld regulations that allowed a waterbody to be 

excluded from protection if the waterbody is impaired for either aquatic life or recreation uses. 

EPA's inclusion of language that calls into question the Kentucky Waterways holding is very likely to prompt litigation. 

Litigation is also likely because of the EPA's inclusion of a term that a waterbody may not be excluded "solely" because 

it does not attain all of the 101(a)(2) uses. This introduces further ambiguity and unnecessarily casts doubt on 

established legal precedent. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.d.iii 

Comment ID 0184-A2.001.023 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

WESTCAS recommends that the proposal be revised as follows: 

"§ 131.12 Antidegradation Policy and Implementation Methods 

(b)(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body basis at 

the State's discretion, but must not exclude any water body from high quality water protection solely because not all of 

the uses specified in CWA section 101(a)(2) are attained; and...." 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0189-A1.001.016 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

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Environmental Department 

Antidegradation: Tier 2 "high quality waters" 

Tier II or "High Quality" waters have water quality that exceeds or is better than WQS. The CWA has long required 

states/authorized tribes to ensure that those waters retain that high quality without any degradation, unless there is a 

demonstration that some degradation is necessary to accommodate important economic or social development and that 

the state/authorized tribe assures that the highest, best treatment to protect existing uses is applied. But the process by 

which some states identify High Quality waters has been problematic. Because some pollutants are pervasive and 

cause problems meeting WQS across many waters, even waters that would otherwise be completely pristine might 

violate standards for one or more parameters (mercury is an example), but exceed standards for all others. A state 

should not be allowed to apply lesser protections to what might otherwise be a High Quality Water, allowing it to 

degrade for many different pollutants, simply because it exceeds a standard for a single pervasive pollutant. That is 

completely opposed to the basic principles of the CWA and antidegradation regulations. The water body-by-water body 

approach to identifying High Quality waters results in waters that will become more degraded rather than less. 

Under the parameter-by-parameter approach to identifying Tier 2 waters, every water body is covered that has better 

than the bare minimum quality needed to meet the criterion for any pollutant and every water body is protected against 

an unnecessary increase as to any pollutant for which it has assimilative capacity. The parameter-by-parameter 

approach should be adopted by the EPA as the only approach compatible with meeting the goals of the CWA. The 

parameter-by-parameter approach has been mandated by EPA for waters in the Great Lakes Basin. We cannot 

maintain healthy water resources by allowing unnecessary new pollution, or restore water bodies impaired by one 

pollutant by allowing them to be contaminated by other pollutants. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section B 

Comment ID 0193-A2.001.007 

Author Name: Biggs Barbara 

Organization: Metro Wastewater Reclamation District 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

IV. Antidegradation Policy and Implementation 

High Quality Waters – § 131.12(b)(1): With respect to high quality (Tier 2) waters, it is not appropriate to include in that 

category segments that are water quality limited (e.g., "any segment where it is known that water quality does not meet 

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applicable water quality standards, and/or is not expected to meet applicable water quality standards, even after the 

application of the technology-based effluent limitations required by sections 301(b) and 306 of the Act"). This approach 

is consistent with the overarching purposes of the Act while maintaining State flexibility in developing antidegradation 

policies to address site-specific considerations. 

For example, Colorado uses a waterbody-by-waterbody approach which evaluates the overall condition for 

antidegradation purposes, which has been a defensible and effective regulatory tool for many years. Colorado is a 

semi-arid state and has a long history of lawful water management activities conducted in accordance with the prior 

appropriation doctrine in order to put water to beneficial use. As such, many water bodies are impacted by diversionrelated conditions that affect overall water quality conditions. 

A good example is the water body to which the Metro District's Robert W. Hite Treatment Facility (RWHTF) discharges. 

This segment, Upper South Platte Segment 15, is considered to be "effluent dominated" as described in Colorado's 

Regulation No. 31: 

"EFFLUENT-DOMINATED STREAM" means a stream that would be intermittent or perennial without the presence of 

wastewater effluent whose flow for the majority of the time is primarily attributable to the discharge of treated water (i.e., 

greater than 50 percent of the flow consists of treated wastewater for at least 183 days annually, for eight out of the last 

ten years). 

The picture below is representative of low flow conditions associated with water diversion activities upstream of the 

RWHTF. 

[Original letter contains additional information in the form of a photo of low-flow conditions upstream of the RWHTF due 

to water management activities. See original letter.] 

Conversely, downstream of the RWHTF, flow in Segment 15 is comprised almost entirely of effluent discharge, as 

shown in the following picture. 

[Original letter contains additional information in the form of a photo of Segment 15 downstream of the RWHTF. See 

original letter.] 

Based on these conditions, Upper South Platte Segment 15 is considered a Tier 1 ("Use Protected") water body. [FN3] 

We believe the proposed rule will put inappropriate and unnecessary restrictions on the waterbody-by-waterbody 

approach. Colorado has a robust and successful antidegradation program that takes a holistic view of water quality 

conditions in determining which water bodies are considered truly "high quality." 

Accordingly, we recommend the proposed language in § 131.12(b)(1) be modified as follows (proposed deleted 

language is shown as strikethrough and additional language is shown as underlined): 

(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body basis at the 

State's discretion, [begin strikeout] but must not exclude any water body from high quality water protection solely 

because not all of the uses specified in CWA section 101(a)(2) are attained [end strikeout] [begin new text] taking into 

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consideration appropriate chemical, biological, and physical characteristics [end new text] ; and 

[FN3] According to § 31.8(2)(b) of Regulation No. 31, use protected water bodies are those that the Colorado Water 

Quality Control Commission has determined do not warrant the special protection provided by the outstanding waters 

designation or the antidegradation review process. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0195-A1.001.017 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

Antidegradation: Tier 2 "high quality waters" 

Tier II or "High Quality" waters have water quality that exceeds or is better than WQS. The CWA has long required 

states/authorized tribes to ensure that those waters retain that high quality without any degradation, unless there is a 

demonstration that some degradation is necessary to accommodate important economic or social development and that 

the state/authorized tribe assures that the highest, best treatment to protect existing uses is applied. But the process by 

which some states identify High Quality waters has been problematic. Because some pollutants are pervasive and 

cause problems meeting WQS across many waters, even waters that would otherwise be completely pristine might 

violate standards for one or more parameters (mercury is an example), but exceed standards for all others. A state 

should not be allowed to apply lesser protections to what might otherwise be a High Quality Water, allowing it to 

degrade for many different pollutants, simply because it exceeds a standard for a single pervasive pollutant. That is 

completely opposed to the basic principles of the CWA and antidegradation regulations. The water body-by-water body 

approach to identifying High Quality waters results in waters that will become more degraded rather than less. 

Under the parameter-by-parameter approach to identifying Tier 2 waters, every water body is covered that has better 

than the bare minimum quality needed to meet the criterion for any pollutant and every water body is protected against 

an unnecessary increase as to any pollutant for which it has assimilative capacity. The parameter-by-parameter 

approach should be adopted by the EPA as the only approach compatible with meeting the goals of the CWA. The 

parameter-by- parameter approach has been mandated by EPA for waters in the Great Lakes Basin. We cannot 

maintain healthy water resources by allowing unnecessary new pollution, or restore water bodies impaired by one 

pollutant by allowing them to be contaminated by other pollutants. 

Response 

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For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section B 

Comment ID 0196-A1.001.016 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

Identifying Tier 2 Waters 

While the proposal states that "high quality waters may be identified on a parameter-by-parameter basis or on a water 

body-by-water body basis," EPA contradicts that statement by requiring states and tribes to ensure waters are not 

excluded from Tier 2 protection solely because not all of the uses specified in Sec. 101(a)(2) are attained. This 

requirement places undue restrictions on the use of the water body-by-water body approach to identifying Tier 2 waters. 

EPA, therefore, should instead specify that states and tribes have discretion concerning how to conduct their Tier 2 

reviews. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0197-A1.001.012 

Author Name: Garrison Naoh 

Organization: Natural Resources Defense Council 

First, the Proposed Rule would revise § 131.12(b)(1) to state that Tier 2 high quality waters can be designated on either 

a parameter-by-parameter basis or on a water body-by-water body basis. EPA should abandon use of the water bodybased approach, and require states to perform parameter-based analyses. While the rule would prohibit states from 

"exclud[ing] from Tier 2 protection [a water body] solely because not all of the uses specified in CWA section 101(a)(2) 

are attained," (78 Fed. Reg. at 54,527), the water body approach [FN5] would nonetheless allow a state to base Tier 2 

review for a water body on only a subset of pollutants or on a single pollutant- e.g., a relatively pristine water that meets 

criteria as a high quality water for all constituents except mercury (or some other pervasive pollutant) may nonetheless 

be excluded from coverage. EPA should categorically reject this method, and require a parameter-based approach. 

[FN5] We note as well that in the Proposed Rule EPA suggests states could consider a more "holistic" assessment, 

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including consideration of "overall value and significance" of the water. (78 Fed. Reg. at 54,527.) This language is 

unnecessarily vague and is likely to cause substantial problems for oversight or enforcement. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section B 

Comment ID 0199-A1.001.011 

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 

a. Identification of Tier 2 high quality waters 

EPA is proposing to amend § 131.12(b)(1) to clarify that Tier 2 high-quality waters can be designated on a parameterby-parameter basis or on a water body-by-water body basis, and that a water body should not be excluded from Tier 2 

designation solely because it does not meet all of the uses in CWA § 101(a)(2). EPA expects states and tribes to take a 

holistic approach and to consider all available information when determining whether to designate a water body as a 

high quality water. 

EPA should only allow Tier 2 designation on a parameter-by-parameter basis. The parameter approach, unlike the 

water body approach, allows for protection of waters that may be impaired for one parameter but that are high quality 

for other parameters. Mercury is often offered as an example of a parameter that can exclude an entire, otherwise high 

quality, water body from protection when the water body approach is used. EPA should therefore not include the water 

body approach in this proposed regulation revision. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section B 

Comment ID 0201-A1.001.018 

Author Name: Godfrey Mike 

Organization: Alabama Power 

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Identification of High Quality Waters 

In proposed 40 C.F.R. § 131.12(b)(1), EPA provides that high quality waters may be identified either by parameter-byparameter or water body-by-water body but "must not exclude any water body from high quality water protection solely 

because not all of the uses specified in CWA section 101(a)(2) are attained." This proposed provision requires 

clarification. First, how many designated uses must be impaired before EPA would consider a water body to be 

excluded from Tier 2 water quality protection? Also, as drafted, it is possible that a water listed on a State's CWA 

Section 303(d) list of impaired waters could require an antidegradation review. This seems inappropriate and would 

seemingly divert limited State resources away from protecting waters that are truly high quality. In the end, the CWA 

may authorize States to promulgate expansive antidegradation review provisions of this kind if they elect to do so. 

However, nothing permits EPA to expand the scope of this standard in the manner it has in the Draft Rule and make 

these robust review provisions the mandatory minimum federal requirement applicable to all States. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0203-A1.001.013 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

A. The Proposal to Make Waters "Tier 2" (High-Quality) if Any Fishable, Swimmable Use Is Attained 

EPA proposes to prevent states from designating a waterbody non-high-quality (non-Tier 2) when only one of the 

fishable, swimmable uses (fish support, wildlife support, fish consumption, or recreation) is not attained. For example, if 

a water was not "fishable" because of mercury but was better than necessary to be "swimmable," the state would have 

to make it a Tier 2 water. 

EPA's preamble (and maybe the rule itself) seem to conflate water quality sufficient to meet fishable, swimmable uses 

with water quality where "the quality of the waters exceeds [that is, is even better than] necessary to support 

propagation of fish, shellfish, and wildlife and recreation in and on the water." 40 C.F.R. § 131.12. The rule (to the 

extent it is lawful at all) has always focused on water with quality better than necessary to attain the highest uses - in 

other words, truly pristine waters. And the rule has never said that Tier 2 waters are those the quality of which is better 

than needed to sustain one or more fishable or swimmable uses, which is what it would have to say for EPA's proposal 

to be a clarification instead of an outright expansion. 

In any case, it is inherently incompatible with the notion that Tier 2 waters deserve protection because they have the 

very highest water quality to say at the same time that the state has to classify a waterbody Tier 2 and conduct the 

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necessary review where the waterbody is impaired for one or more uses. Of course, the states can always adopt their 

own broader antidegradation review provisions, but EPA should not require this as a minimum federal requirement. 

EPA says it might require Tier 2 review for all parameters for which water quality is better than the criteria. This would 

effectively convert the waterbody-by-waterbody approach to a pollutant-by-pollutant approach, even though EPA says 

that it is preserving both approaches. 

Moreover, as with the designation of "uses" (above), the antidegradation proposal would subdivide uses finer and finer, 

multiplying the resources needed to deal with them. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.d.iii 

Comment ID 0205-A1.001.010 

Author Name: Burd Charlie 

Organization: Independent Oil and Gas Association of West Virginia Inc.

 D. Antidegradation Implementation 

IOGA-WV strongly objects to USEPA's proposed revisions to the antidegradation regulations under 40 C.F.R. § 131.12, 

which would (1) prevent states from excluding a waterbody from Tier 2 protection solely because the water does not 

meet all of the uses specified in 33 U.S.C. § 1251(a)(2) (i.e., fishable/swimmable uses) are attained, and (2) require 

states to conduct an alternatives analysis before authorizing any lowering of high water quality. Both of these proposed 

changes are overly prescriptive and will reduce the flexibility of states to administer their CWA programs. As discussed 

above, the CWA specifically delegates to the states the discretion in weighing the "use and values" of various state 

waters for alternative purposes. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.e.ii 

7.m 

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Comment ID 0205-A1.001.011 

Author Name: Burd Charlie 

Organization: Independent Oil and Gas Association of West Virginia Inc. 

Furthermore, with regard to the first proposed revision specifically, IOGA-WV notes that it could effectively mandate that 

states treat as "high quality" waterbodies that are impaired. This would expand the definition of "high quality" water well 

beyond its historical application, which focused on those waters where water quality "exceeds levels necessary to 

support propagation of fish, shellfish, and wildlife and recreation in and on the water." See 40 C.F.R. § 131.12(a)(2) 

(emphasis supplied). 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0206-A1.001.011 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

We are also concerned that EPA has chosen to allow the states to adopt a waterbody-by-waterbody approach to Tier 2 

Reviews that is limited by some vague factors that will inevitably lead to confusion at best and litigation at worst. 

The waterbody-by-waterbody approach is not consistent with the CWA goal of maintaining the chemical, physical and 

biological integrity of our nation's waters, and should be excluded as an option in Tier 2 Reviews. Under the waterbodyby-waterbody approach, a state could exclude high quality waters from Tier 2 protections because one persistent 

pollutant is pervasive although the water is otherwise pristine. This approach represents, in essence, a loophole by 

which states can legally facilitate the degradation of high water quality by relying on a myopic interpretation of water 

quality standards. For example, Alabama has refused to upgrade the East (HUC 0314020102) and West (HUC 

0314020103) Forks of the Choctawhatchee River to Outstanding Alabama Waters solely because of mercury pollution. 

EPA should not allow states to permit degradation of high quality waters on the basis of pollution by one pervasive 

pollutant. Further, the Proposed Rule does not establish any requirements for waterbody-by-waterbody designation, 

which may allow states to continue to follow widely divergent and often arbitrary standards for identifying high quality 

waters. 

Alternatively, we urge EPA to revise its proposed language to require states to select the parameter-by-parameter 

approach for identifying high quality waters. This is a proven, accurate scientific methodology. This revision should 

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make explicit that all parameters are to be evaluated, an issue the Proposed Rule fails to address. Towards this end, 

we propose that the agency adopt the following language in its new §131.12(b)(1) in lieu of the proposed language to 

clarify 40 C.F.R. §131.12(a)(2): 

[begin new text] Where, for any parameter, the quality of the waters exceed levels necessary to support the propagation 

of fish, shellfish, and wildlife and recreation in and on the waters, that quality shall be maintained and protected unless 

the State or Tribe finds, after full satisfaction of intergovernmental coordination and public participation provisions of the 

State or Tribes' continuing planning process, that allowing lower water quality is necessary to accommodate important 

economic or social development in the area in which the waters are located. [end new text] 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section B 

7.d.iii 

Comment ID 0207-A1.001.010 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

o Anti-degradation approach - EPA's proposal inappropriately expands the number of waters subject to anti-degradation 

review by including impaired waters, and is inconsistent with many current state regulations. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0212-A1.001.012 

Author Name: Norton Kelly 

Organization: Arizona Mining Association 

• Provision stating that waters cannot be excluded from Tier 2 merely because they are "not attaining" all CWA 

101(a)(2) uses: The AMA is concerned with the proposal in 40 C.F.R. § 131.12(b)(1) that waters cannot be excluded 

from Tier 2 antidegradation protection solely because they do not meet one of all of the uses specified in in CWA 

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Section 101(a)(2). The AMA's concern is based on the different manners in which this language potentially could be 

interpreted. 

Based on the examples given at 78 Fed. Reg. 54528, EPA seems to be focusing this proposal on states that have 

refused to classify waters as Tier 2 because they are on an impaired waters list developed under CWA Section 303(d) 

for one or more parameters. For states that conduct antidegradation analysis on a parameter-by-parameter basis, as 

Arizona does, EPA suggests that the impaired water could still classify as a Tier 2 water for parameters for which it is 

not listed as impaired. That is in fact exactly how the Arizona antidegradation rule currently reads (see A.A.C. R18-11-

107.01(A)(1)(a)), and if that is the sole intent of the EPA proposal then the AMA does not object to it. 

However, the reference to not all Section 101(a)(2) uses being attained potentially can be read more broadly, given that 

"attained" is not a defined term in Part 131. The AMA's concern is that the proposed language could be read as 

precluding a state from identifying as Tier 1 waters those waters that have not been assigned all the Section 101(a)(2) 

uses, which EPA identifies at 78 Fed. Reg. 54527 as including aquatic life support, wildlife support, consumption of 

aquatic life, and recreation. In Arizona, the EPA-approved antidegradation rule has classified as Tier 1 waters all 

ephemeral [FN1] waters in Arizona. See A.A.C. R18-11-107.01(A) & (B)(1). [FN2] These waters typically do include an 

aquatic and wildlife use designation (Arizona has adopted a sub-category for ephemeral waters), as well as a partial 

body contact use designation that recognizes limited recreational opportunities that exist in ephemeral waters. The 

AMA's position is that these designations mean that these waters have been assigned all appropriate Section 101(a)(2) 

uses, and thus they are not encompassed within the proposed new language. However, ephemeral waters do not 

include a fish consumption designated use, for the obvious reason that they are normally dry and thus cannot support a 

fish population. The AMA is concerned that the entirely justified absence of a fish consumption use designation in 

ephemeral waters paradoxically could be used to mandate that these waters be identified as Tier 2 waters if the 

proposal is adopted, given that these waters have not been assigned a use involving the "consumption of aquatic life." 

To avoid this incongruous and apparently unintended result, the AMA suggests that if proposed 40 C.F.R. § 

131.12(b)(1) is retained in the final rule, then the rule text be amended to focus more clearly on waters identified as 

impaired under Section 303(d), rather than including vague references to waters that have not "attained" all uses 

specified in Section 101(a)(2) of the Act. Alternatively, if the reference to uses is maintained, the rule language should 

be modified to include the phrase "that have been designated for the waters" following "specified in CWA Section 

101(a)(2)." Making either of these changes would provide greater clarity and consistency between the rule language 

and the intent behind that language expressed in the preamble, and would avoid the unintended consequence 

described above. 

[FN1] The provision also applies to intermittent waters, effluent-dependent waters, and some listed canals. 

[FN2] Arizona adopted its antidegradation implementation provisions, including the rule classifying ephemeral, 

intermittent, and effluent-dependent waters as Tier 1 waters for antidegradation purposes, in December 2008. See 14 

Ariz. Admin. Code 4708 (December 26, 2008). EPA Region 9 promptly approved these provisions without comment in a 

January 21, 2009 letter. 

Response 

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For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section C 

7.d.iii 

7.e.iv 

Comment ID 0215-A1.001.011 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

We are also concerned that EPA has chosen to allow the states to adopt a waterbody-by-waterbody approach to Tier 2 

Reviews that is limited by some vague factors that will inevitably lead to confusion at best and litigation at worst. 

The waterbody-by-waterbody approach is not consistent with the CWA goal of maintaining the chemical, physical and 

biological integrity of our nation's waters, and should be excluded as an option in Tier 2 Reviews. Under the waterbodyby-waterbody approach, a state could exclude high quality waters from Tier 2 protections because one persistent 

pollutant is pervasive although the water is otherwise pristine. This approach represents, in essence, a loophole by 

which states can legally facilitate the degradation of high water quality by relying on a myopic interpretation of water 

quality standards. For example, Alabama has refused to upgrade the East (HUC 0314020102) and West (HUC 

0314020103) Forks of the Choctawhatchee River to Outstanding Alabama Waters solely because of mercury pollution. 

EPA should not allow states to apply lesser protections to what might otherwise be a high quality water on the basis of 

one pervasive pollutant. Further, the Proposed Rule does not establish any requirements for waterbody-by-waterbody 

designation, which may allow states to continue to follow widely divergent and often arbitrary standards for identifying 

high quality waters. 

Alternatively, we urge EPA to revise its proposed language to require states to select the parameter-by-parameter 

approach for identifying high quality waters. This is a proven, accurate scientific methodology. This revision should 

make explicit that all parameters are to be evaluated, an issue the Proposed Rule fails to address. Towards this end, 

we propose that the agency adopt the following language in its new §131.12(b)(1) in lieu of the proposed language to 

clarify 40 CFR §131.12(a)(2): 

[begin new text] Where, for any parameter, the quality of the waters exceed levels necessary to support the propagation 

of fish, shellfish, and wildlife and recreation in and on the waters, that quality shall be maintained and protected unless 

the State or Tribe finds, after full satisfaction of intergovernmental coordination and public participation provisions of the 

State or Tribes' continuing planning process, that allowing lower water quality is necessary to accommodate important 

economic or social development in the area in which the waters are located. [end new text] 

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Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section B 

7.d.iii 

Comment ID 0216-A2.001.003 

Author Name: Brisson Brook 

Organization: Trustees for Alaska on behalf of the Alaska Center for the Environment et al. 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

Antidegradation Implementation 

EPA Proposal Part 1: Identification of High Quality Waters 

EPA proposes to clarify that states can identify high quality waters based on one of two methods: parameter-byparameter or waterbody-by-waterbody. Proposed Rule, 78 Fed. Reg. at 54,527. The purpose of antidegradation is to 

provide the greatest protection for water quality possible. Commenters believe that the parameter-by-parameter 

approach best achieves this goal and that EPA should require this approach. [FN3] 

If, however, EPA determines in the final rule to allow a state to apply the waterbody-by-waterbody approach, the 

proposed language must be modified to better protect water quality. It appears that EPA's intent is to make it clear that 

if a state is using the waterbody-by-waterbody approach, a waterbody cannot be excluded from high quality water 

designation and subjected to Tier II antidegradation analysis simply because it is included on the section 303(d) list for 

one of the section 101(a)(2) uses. Proposed Rule, 78 Fed. Reg. at 54,527. The proposed language does not clearly 

achieve this goal and should be revised. Once the waterbody is identified as Tier II, EPA should require an approach 

where the state must then conduct a Tier II analysis for all parameters that exceed any applicable criteria, even if the 

criteria is for a use that is not attained as a result of another criteria. This approach will better achieve EPA's goal of 

revising the rule to improve Tier II coverage. See generally id. 

Taking EPA's example to illustrate this point, if Water Body B has aquatic life and recreational designated uses and is 

on the section 303(d) list as impaired for methylmercury, but not for bacteria or any other pollutant necessary to protect 

recreation, in conducting the Tier II review, the analysis should cover any criterion relevant to the recreation use as well 

as any criterion applicable to the protection and propagation of aquatic life other than methylmercury. See Proposed 

Rule, 78 Fed. Reg. at 54,528. 

Commenters propose the following changes to EPA's proposed language and existing regulations to address these 

concerns (new language in bold; removed language in strikethrough): 

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40 C.F.R. § 131.12(b)(1): "High quality waters are identified on a parameter-by-parameter basis or on a waterbody-bywaterbody basis at the State's discretion, but [begin new text] states [end new text] must not exclude [begin strikeout] 

any water body [end strikeout] from high quality water protection [begin new text] any waterbody [end new text] [begin 

strikeout] solely because not all [end strikeout] [begin new text] that is attaining one or more [end new text] of the uses 

specified in CWA section 101(a)(2) [begin strikeout] are attained [end strikeout] [begin new text] and states must protect 

every water body as to all parameters that exceed applicable criteria[end new text]; . . . " 

[FN3] The majority of Alaska surface water resources are considered unimpaired. See Alaska Department of 

Environmental Conservation, Alaska's Final 2010 Integrated Water Quality Monitoring and Assessment Report at 2 

(July 15, 2010) (stating that Alaska contains almost half of all of the surface waters in the United States and that "the 

vast majority of its water resources are in pristine condition. More than 99.9% of Alaska's waters are considered 

unimpaired. Among the state's vast water resources are more than 3 million lakes, 714,000 miles of streams and rivers, 

44,000 miles of coastline, and approximately 174,683,900 acres of wetlands. Less than 0.1% of these water resources 

have been identified as impaired."), available at: 

http://dec.alaska.gov/water/wqsar/Docs/2010_Integrated_Report_Final_20100715_corrected_july_19.pdf. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section B 

7.d.iii 

Comment ID 0220-A2.001.009 

Author Name: Anderson Paul 

Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District 

D. Antidegradation Implementation 

i. Part 1 - Identifying High Quality Waters 

The Lower Fountain District appreciates the need to identify and protect high quality or "Tier 2" waters and to continue 

striving toward achieving the CWA's goals. However, it is not clear whether EPA intends that once a water is identified 

as Tier 2 it is considered Tier 2 for all uses - the exact converse of EPA's stated concern over waters not being 

identified as Tier 2 because one of the uses/goals in CWA §101(a)(2) is not met (p. 54527, second column). Thus the 

District wishes to confirm (under Part 1 of EPA's proposal, p. 54527) that a Tier 2 identification for a use only applies for 

that specific use rather than for all purposes, which the District believes is EPA's intent based on the language of 

proposed Section 131.12(b). Additionally, the District would like clarification on whether there would be a "tipping point" 

at which certain waters could be considered Tier 2 for all uses, even if not all (or most) CWA §101(a)(2) uses are met 

currently. The District's main concern is that certain waters may be identified as Tier 2 when "available data to conduct 

an overall holistic assessment" (p. 54527, third column) is either inadequate or a legitimate and substantial 

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disagreement exists over the data (e.g., data validity, what is purports to demonstrate, how obtained) as concerning 

uses not currently made of a water body. 

The District supports retaining the "water-body by water-body" approach per EPA's past approval and to allow states 

and tribes continued discretion on how to conduct Tier 2 reviews. The District further requests confirmation that a water 

body impaired for recreational or aquatic use is not "high quality" water. As noted in Kentucky Waterways v. Johnson, 

540 F.3d 466, 479 (6th Cir. 2008), in approving Kentucky's exclusion of impaired waters from Tier 2 EPA acknowledged 

as a "federal requirement" that a water body "must support" both aquatic and recreational uses for that water body to be 

considered "high quality". The District submits that a loose application of "high quality" designations will lead to 

unintended consequences on the District and similar entities, driving water quality based effluent limits far lower than 

necessary to protect the use while in turn dramatically increasing permit renewal costs due to stricter antidegradation 

limits. In effluent dominated streams, dischargers like the District otherwise become the de facto dilution source for all 

other pollution sources. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section C 

Comment ID 0222-A1.001.014 

Author Name: Modeer David 

Organization: Western Urban Water Coalition 

2. EPA proposes that waters cannot be excluded from Tier 2 protection "solely because not all of the uses specified in 

CWA section 101(a)(2) are attained." See section 131.12(b)(1). This proposal constrains a state's authority in 

implementing its antidegradation program. It should be the state's choice as to how it most efficiently and beneficially 

implements its antidegradation program. Furthermore, this EPA proposal is inconsistent with both EPA's position and 

the court's ruling in Kentucky Waterways Alliance v. Johnson, 540 F.3d 466, 478 (6th Cir. 2008), wherein the court, 

consistent with EPA's decision to approve the Kentucky approach of excluding impaired waters from Tier 2 protection, 

found that "Kentucky's exclusion of impaired waters from Tier II protection is consistent with the requirements of 40 

C.F.R. section 131.12(a)." There is no valid reason for this reversal of position. In addition, we note that even if Tier 2 

protection is not afforded a use because the water body is impaired for another use, that first use must nevertheless be 

fully protected, including the maintenance of the water quality criteria established for the protection of that use. EPA's 

explanation ignores this fact. EPA should drop this requirement and retain its current policy. 

Response 

For response to this comment, see the following response essay(s): 

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7.d.ii 

7.d.ii: Section C 

7.d.iii 

Comment ID 0223-A1.001.007 

Author Name: Lindekugel Buck 

Organization: Grassroots Attorney on behalf of Southeast Alaska Conservation Council 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

III. Antidegradation Implementation 

EPA is proposing to amend several provisions of its antidegradation standard at 40 CFR 130.12 relating to the 

identification of waters and the Tier 2 implementation requirements. 

Identification of High Quality Waters 

We agree with EPA that "[p]rotection of waters that meet or exceed levels necessary to support the CWA uses is central 

to supporting both economic and community growth and sustainability." The purpose of antidegradation is to maintain 

and protect the uses of specified in CWA section 101(a)(2). For that reason, SEACC recommends EPA abandon the 

"water body by water body" approach in favor of the parameter by parameter approach in order to ensure that waters 

that are better than any given water quality standards will be protected for those standards and cleaned up for the other. 

SEACC proposes the following changes to EPA's proposal and the existing regulations to accomplish these objectives 

(new language in bold; removed language in strikethrough): 

40 C.F.R. § 131.12(b)(1): "High quality waters are identified on a parameter-by-parameter basis [begin strikeout] or on a 

waterbody by waterbody basis at the State's discretion,[end strikeout] but [begin new text] states [end new text] must 

not exclude [begin strikeout] any water body [end strikeout] from high quality water protection [begin new text] any water 

[end new text] [begin strikeout] solely because not all [end strikeout] [begin new text] that is attaining one or more [end 

new text] of the uses specified in CWA section 101(a)(2) [begin strikeout] are attained [end strikeout] [begin new text] 

and states must protect every water as to all parameters that exceed applicable criteria; ..." [end new text] 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section B 

7.d.iii 

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Comment ID 0224-A1.001.010 

Author Name: Ternieden Claudio 

Organization: Water Environment Federation 

E. Antidegradation Implementation. 

EPA proposes to amend several provisions of § 131.12 related to antidegradation implementation including: 

1) clarifying the options for identifying Tier 2 high quality waters, 

2) clarifying that states and tribes must conduct an alternatives analysis when considering authorization of degradation 

of high quality water 

3) requiring that states and tribes develop implementation procedures that are available to the public 

1. EPA Proposal––Part 1: Identification of High Quality Waters: 

EPA is proposing to add paragraph (b)(1) to § 131.12 to provide that high quality waters may be identified on a 

parameter-by-parameter basis or on a water body-by-water body basis, as long as the state or tribe doesn't exclude 

waters from Tier 2 protection solely because some DUs are not fully met. 

WEF Comments: 

EPA guidance has long held that either method of identifying high quality waters is acceptable, so this proposal simply 

codifies that guidance. However, in response to recent litigation, EPA is also including a provision that prohibits 

exclusion of Tier 2 protection for waters that may be impaired for one or more use, but fully meet or exceed others. EPA 

also seems to specify that this applies to the uses described in CWA 101(a)(2) (FAL, wildlife support, human 

consumption of aquatic life, and recreation.) 

In its proposal, EPA describes concerns and recommendations related to the water body-by-water body approach. 

States and tribes using this approach typically identify high quality waters by weighing a variety of factors to classify a 

water body's overall quality. These waters may be compiled in a list ahead of time, and when an activity may lower 

water quality, the state would consult the Tier 2 water list to determine whether or not to conduct a Tier 2 review. 

EPA is concerned that this method of Tier 2 identification can be implemented in a manner contrary to the intent of the 

antidegradation provisions. In some states, water bodies listed on the 303(d) list based on one or more parameters 

affecting one or more of the 101(a)(2) uses are no longer considered high quality. However, in many cases, such a 

water body remains high quality for one or more of the other uses. For example, the Ocoee River in Tennessee was 

impaired for FAL due to historical copper mining and processing that essentially left the river devoid of aquatic life. 

However, the river provided a unique recreational purpose for white water rafting, even serving as a venue for the 1996 

Olympics. In that case, the water body was clearly both impaired for FAL but high quality for recreation. 

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For the water body-by-water body approach, EPA expects states/tribes to consider a combination of chemical, 

biological, and physical characteristics to provide a holistic assessment in determining whether a water body would 

receive Tier 2 protection. These characteristics could be evaluated by factors such as aquatic life assemblages, habitat, 

hydrology, geomorphic processes, and landscape condition; existing recreational uses and recreational significance; 

and the overall ecological and social value and significance of the water body. 

EPA provides two examples to illustrate this approach where the FAL and recreation uses are considered. In the first 

example, the water body's FAL and wildlife uses are impaired due to methylmercury and the recreational use is 

impaired due to bacteria. In this case, EPA advises that the water body in question would not be considered Tier 2 for 

either use. Since the Tier 1 status is determined on a water body-by water-body approach, antidegradation reviews 

would not necessarily be required for new or increased discharges of other substances that would lower water quality 

that supports either the FAL/wildlife or recreational use. In the second example where the FAL/wildlife use isn't met, but 

the recreational use is, a new discharge of copper could be allowed without Tier 2 review. EPA is specifically requesting 

comment on this issue. 

WEF believes that, with regard to criteria associated with FAL use support, there could be legitimate concern for 

negative synergistic effects of different pollutants that have individual, applicable criteria. In allowing an increased 

and/or new discharge of these pollutants without Tier 2 review, the state could also require whole effluent toxicity testing 

and where appropriate, in-stream biological sampling. 

Overall, the water body-by-water body approach would give states/tribes more flexibility in managing antidegradation 

reviews. The parameter-by-parameter approach can be very tedious and can overlook the larger impact of a potentially 

degrading activity. 

Many states have identified waters that are of an even higher quality than simply being better than the minimum level 

necessary to support DUs, but are not Outstanding National Resource Waters (ONRWs). These waters are often 

referred to as Tier 2.5, outstanding state waters or exceptional waters. WEF recommends that EPA consider some 

provision that allows but does not mandate for differentiating between "garden variety" Tier 2 waters and very high 

quality Tier 2 waters both in terms of identification and the level of antidegradation review. For example, degrading 

activities in both types of waters would be subject to alternatives analysis, but the social and economic evaluation for 

lesser Tier 2 waters could be less rigorous than what is required now for all Tier 2 waters. 

Response 

For response to this comment, see the following response essay(s): 

Comment ID 0228-A2.001.003 

08/04/2015 05:01 PM EDT 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section C 

7.d.ii: Section D 

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Author Name: Conn Rachel 

Organization: Amigos Bravos 

Antidegradation 

Amigos Bravos is generally supportive of EPA's proposal, but believes it misses the mark in several areas. For example 

EPA should require pollutant-by-pollutant determination of High Quality Waters. Pervasive pollutants such as mercury 

and in NM's case, temperature, should not prevent protection of otherwise high water quality. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section B 

Comment ID 0230-A1.001.014 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

Antidegradation 

EPA is proposing to amend several provisions of 40 CFR 131.12 related to antidegradation. The first section relates to 

EPA's proposed method for identifying where Tier 2 protection applies. The second describes the requirement for 

conducting an alternatives analysis under Tier 2. The third requests comment regarding whether states should be 

required to adopt antidegradation implementation methods as WQS subject to EPA approval. Finally, EPA also 

describes several minimum elements of an antidegradation implementation method. 

Tier 2 - identification of "high quality waters" (78 FR at 545268) 

Essentially, Tier 2 prohibits states from granting permits that allow degradation that has not been shown to be 

necessary to accommodate important local social or economic development. 40 C.F.R. 131.12(a)(2). The EPA proposal 

addresses the issue of what waters must be protected by states under the Tier 2 antidegradation and of which 

pollutants trigger a Tier 2 antidegradation review. 

Specifically, EPA indicates that states may use either a parameterbyparameter or a waterbodybywaterbody approach to 

identify when Tier 2 protections are triggered, but proposes to clarify that states may not exclude a waterbody from Tier 

2 coverage simply because not all of the uses specified in CWA section 101(a)(2) are attained. 

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We agree that clarification is needed on the issue of the extent of Tier 2 coverage required of states. Unfortunately, the 

proposed regulatory language is so unclear that it is uncertain what the agency intends. As described further below, we 

believe that EPA should abandon its decision to authorize the waterbodybywaterbody approach. If it will not do that, 

EPA should at least significantly revise this proposal to provide much clearer standards as to when a state can 

categorically eliminate a waterbody from Tier 2 protection. Specifically, if EPA declines to entirely abandon the 

waterbody approach, it should make clear that states must not exclude from high quality water protection any water 

body that is attaining all of the uses specified in CWA section 101(a)(2) and states must protect every water body as to 

all parameters relating to the 101(a)(2) uses the water is attaining. 

We support a parameterbased approach to coverage. Under the parameterbyparameter approach, every water that has 

better than the bare minimum quality needed to meet the criterion for any pollutant is covered and every water is 

protected against an unnecessary increase as to any pollutant for which it has assimilative capacity. (New or increased 

discharges to waters that do not have assimilative capacity to receive them are prohibited under other parts of the 

CWA). [FN3] For example, under the parameterbyparameter approach, if a state proposed to permit more ammonia or 

selenium into a lake that is not impaired for those pollutants, but that is impaired by BOD, e coli, nitrate and mercury, it 

would still be necessary to do an antidegradation analysis before permitting the proposed new loading. 

The parameterbyparameter approach should be adopted by the EPA as the only approach compatible with meeting the 

goals of the Clean Water Act. [FN4] This approach has been mandated by USEPA for waters in the Great Lakes. 

Moreover, it is simply inexplicable how allowing new pollution that has not been shown to be necessary is consistent 

with maintaining and restoring any of the Nation's waters. One does not maintain waters by allowing unnecessary new 

pollution or restore water bodies impaired by one pollutant by allowing them to be contaminated by other pollutants. See 

Petition for Rulemaking under the Clean Water Act, February 11, 2011, filed by Campaign to Save America's Waters, 

the Environmental Law & Policy Center, Gulf Restoration Network and Kentucky Waterways Alliance (attached as 

Exhibit A to the this comment). 

Nonetheless, U.S. EPA has approved state antidegradation standards that adopt the "waterbody-bywaterbody" or 

"waterbody" approach. Under the "waterbody" approach, a state designates a subset of its waters as "high quality 

waters" and only applies Tier 2 to that subset. [FN5] Also, the state may do an antidegradation analysis for only a 

subset of the total pollutant parameters. 

Given the confusion in past discussions and cases, it is useful here to elucidate the relevant choices through 

presentation of a vastly simplified example in which there are only four potential designated water uses: aquatic life, 

swimming, drinking water and fish consumption. Further, in this simplified world, it is assumed that the only pollutants 

that can affect these uses are as follows: 

Aquatic life - Biological Oxygen Demand (BOD) and ammonia 

Swimming - e coli 

Drinking water nitrate 

Fish consumption - mercury and selenium. [FN6] 

Under the "waterbody" approach, a state might decide that "high quality waters" are those containing federallylisted 

endangered species. As to the types of pollution covered, the state might decide it only does antidegradation analyses 

for ammonia. Using our lake example with this extreme "waterbody" approach, the lake impaired by BOD, e coli, nitrate 

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and mercury is unlikely to be protected from unnecessary degradation at all. Even if the lake did support 

federallyprotected species, while a proposed new loading of ammonia could only be allowed if shown necessary, 

increased loadings of selenium could be allowed without a Tier 2 antidegradation analysis. 

A more common approach currently used by states under the waterbody approach is to tie coverage to the state's 

303(d) list and to decide that waters on the list are not "high quality." This makes no sense at all, particularly as waters 

may be on the 303(d) list due to impairments of non101(a)(2) uses and waters that are far from attaining 101(a)(2) uses 

might not be on the 303(d) list because use designations have been removed through 40 C.F.R. 131.10(g). 

The practical problem here is that huge numbers of waters are now impaired by mercury or other pollutants, but they 

may be very high quality as to other parameters and to uses other than fish consumption. For example, for years the 

Commonwealth of Kentucky's water quality standards took the position that Lake Cumberland, impaired by mercury, 

was unworthy of Tier 2 protection, while Kentucky in its tourist brochures claimed that Lake Cumberland was one of the 

premier fisheries and recreational areas in North America. 

The discussion in the Federal Register indicates that EPA intends to improve Tier 2 coverage, but EPA's intent cannot 

be seen clearly in the proposed rule changes. First, the proposal keeps the language of 40 C.F.R. 131.12(a)(2) that 

"where the quality of waters exceed levels necessary to support the protection and propagation of fish, shellfish, and 

wildlife and recreation in and on the water, that quality shall be maintained and protected ... . " We believe the reference 

to "levels" of water quality mandates the parameterbyparameter approach. 

Then, however, EPA proposes as follows: 

High quality waters are identified on a parameterbyparameter basis or on a waterbodybywaterbody basis at the State's 

discretion, but must not exclude any water body from high quality water protection solely because not all of the uses 

specified in CWA section 101(a)(2) are attained; ... 

This language seeks to legitimize the lessprotective, easily abused waterbody approach that does not promote the 

goals of the CWA. Moreover, it explicitly forbids only one method for denying Tier 2 protection but gives no real 

direction for how the waterbody approach should be applied. Reading this sentence in isolation, it appears that a state 

could exclude any water body from high quality water protection based on any criteria other than failure to meet a 

101(a)(2) use. Consistent with the proposed language, a state might afford Tier 2 protection to all waters meeting 

101(a)(2) uses, plus waters impaired for one 101(a)(2) use with names that started with the letter ‘Z.' 

[FN3] See e.g., 40 C.F.R. 122.44(d), Friends of Pinto Creek v. U.S. EPA , 504 F.3d 1007, 101519 (9th Cir. 2007) and 

Alabama Dept. of Env. Mgt. v. Alabama Rivers , 14 So. 3d 853 (Ala. Civ. App. 2007). 

[FN4] We aware, of course, that several courts, affording EPA Chevron deference which we believe to have excessive, 

have upheld EPA decisions that the parameterbyparameter approach is not required. We are confident that the courts 

would uphold a decision by EPA that the parameter approach is required based on further experience. 

[FN5] EPA has done this although the phrase "high quality waters" does not appear in the portion of the current 

regulation that applies to Tier 2 and there is no basis for limiting Tier 2 protections to "high quality waters." Certainly, the 

CWA goal of maintaining and restoring the Nation's waters is not limited to such a subset of the Nation's waters. 

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[FN6] In the real world, there are more uses and each pollutant typically affects more than one use. The effect of this 

reality is to make the "waterbody" approach still more complex and uncertain. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section B 

7.d.iii 

Comment ID 0230-A1.001.015 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

Reading the new proposed sentence together with the existing language and the Federal Register discussion, the most 

logical conclusion is that EPA's intent is that a state must protect at least all waters that meet 101(a)(2) uses and must 

in addition protect at least some waters that do not meet all these uses. Thus, for example in our simplified world, a 

water body that is not impaired for aquatic life (because there is assimilative capacity for BOD and ammonia) but that is 

impaired for swimming and drinking water might need to be protected as to BOD or ammonia even if the water body 

does not attain the swimming use (one use impaired) or the drinking water use (does not count because not a 101(a)(2) 

use). But even interpreting the proposed rule in this manner, the guidance is inadequate to direct further action. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section B 

Comment ID 0234-A2.001.006 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

In particular, we are concerned about the requirement in proposed § 131.12(b)(1) that State implementation methods 

must "ensure" that a State conducts an antidegradation review for a water body if the water body exceeds the quality 

needed to achieve any one of the uses specified in CWA § 101(a)(2). This provision could require States to conduct 

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antidegradation reviews for impaired waters. Such a requirement would be a misallocation of scarce State resources 

and is inconsistent with existing State antidegradation policies, including policies that EPA has successfully defended in 

court. [FN1] It also would be inconsistent with State policies to encourage infilling and protect green space by placing 

additional barriers on discharges near impaired waters. 

[FN1] See, e.g., Colorado antidegradation regulations (5 CCR 1002-31, section 31.8); Kentucky Waterways Alliance v. 

EPA, 540 F.3d 466 (6th Cir. 2008) (upholding EPA approval of the provisions of Kentucky's antidegradation policy that 

exclude impaired waters from antidegradation review). 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.d.iii 

Comment ID 0240-A2.001.019 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

In regards to part one of this section, 131.12(b)(1), EPA proposes that "[h]igh quality waters are identified on a 

parameter-by-parameter basis or on a water body-by-water body basis at the State's discretion, but must not exclude 

any water body from high quality water protection solely because not all of the uses specified in CWA section 101(a)(2) 

are attained." 

e. We agree that a water body-by-water body analysis should continue to be allowed; such has previously been 

approved by EPA in many states, including AL, CO, ID, KY, NE, OK, and PA. However, the rule states that a water 

body may not be excluded from high quality water protection because not all uses are attained. This statement 

inappropriately places restrictions on the states' discretion to utilize a water body-by-water body approach, and implies 

that EPA would evaluate and review high quality waters on the parameter-by-parameter basis, regardless of a state's 

determination and identification of high quality waters. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.d.iii 

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Comment ID 0252-A2.001.029 

Author Name: Fry Eric 

Organization: Peabody Energy 

With regard to clarifying the options for identifying Tier 2 high quality waters, EPA's proposed language appears to 

indicate that waterbody-by-waterbody analysis would be allowed. However, it then states a waterbody may not be 

excluded from high quality water protection because not all uses are attained. This places restrictions on the waterbodyby-waterbody approach, and implies EPA would evaluate and review high quality waters on a parameter-by-parameter 

basis regardless of the State's determination and identification of high quality waters. EPA should specify that States 

and Tribes have discretion on how to conduct the Tier 2 reviews - as per the agency's current policy. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0256-A2.001.010 

Author Name: Shepherd Hal 

Organization: The Center for Water Advocacy 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

VI. Antidegradation Implementation 

A. Identification of High Quality Waters 

We agree with EPA that "[p]rotection of waters that meet or exceed levels necessary to support the CWA uses is central 

to supporting both economic and community growth and sustainability." The purpose of antidegradation is to maintain 

and protect the uses of specified in CWA section 101(a)(2). For that reason, CWA recommends EPA abandon the 

"water body by water body" approach in favor of the parameter by parameter approach in order to ensure that waters 

that are better than any given water quality standards will be protected for those standards and cleaned up for the other. 

CWA proposes the following changes to EPA's proposal and the existing regulations to accomplish these objectives 

(new language in bold; removed language in strikethrough): 

40 C.F.R. § 131.12(b)(1): "High quality waters are identified on a parameter-by-parameter basis or on a waterbody-bywaterbody basis [begin strikeout] at the State's discretion [end strikeout], but [begin new text] states [end new text] must 

not exclude [begin strikeout] any water body [end strikeout] from high quality water protection [begin new text] any water 

[end new text] [begin strikeout] solely because not all [end strikeout] [begin new text] that is attaining one or more [end 

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new text] of the uses specified in CWA section 101(a)(2) [begin strikeout] are attained [end strikeout] [begin new text] 

and states must protect every water as to all parameters that exceed applicable criteria [end new text]; . . . " 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section B 

Comment ID 0257-A1.001.007 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

2. Designation of High Quality Waters 

EPA has proposed to amend 40 CFR 131.12 to provide that states that identify high quality waters on a waterbody-bywaterbody basis, such as Kentucky, must not exclude a waterbody from "high quality water protection" "solely because 

not all of the uses specified in CWA Section 101(a)(2) are attained." In the preamble, EPA provides an example of a 

waterbody that may be impaired for primary contact recreation, but not aquatic life, as one that should be subject to 

high quality water antidegradation review. EPA's proposal is an improper intrusion on the rights of states to develop 

their own antidegradation approaches. In the case of Kentucky, its use of a waterbody-by-waterbody approach to 

antidegradation review was approved by the United States Court of Appeals for the Sixth Circuit in Kentucky Waterways 

Alliance v. Johnson, 540 F.3d 466 (6th Cir. 2008). EPA was aware of how Kentucky implemented antidegradation 

review on a waterbody-by-waterbody basis and approved the state's antidegradation provisions. As the court noted, the 

waterbody-by-waterbody approach "allows States and Tribes to focus limited resources on protecting higher-value State 

or Tribal Waters." Id. at 477. The Proposed Rule would deprive states of that policy option and substantially increase 

the burden on states by requiring high-level antidegradation review (as delineated in the rule and discussed below) on 

waters that are impaired for one or possibly even multiple uses. 

EPA's proposed rule would conflict with the previously approved implementation procedures adopted by Kentucky. 

EPA's interpretation represents an intrusion on the state's authority under the Clean Water Act to define its own water 

quality standards based upon its evaluation of uses, particularly in an instance where a waterbody is not of sufficient 

quality to meet all uses. This appears to be an attempt to force all states that utilize a waterbody-by-waterbody 

approach to effectively switch to a parameter-by-parameter approach for all non-impaired uses. If EPA adopts the 

provisions on high quality water classifications at 40 CFR 131.12(b)(1), at a minimum it should clarify that previously 

approved state antidegradation policies remain in effect and do not need to be amended. 

It is also unclear as to how the phrase "solely because not all of the uses specified" are attained in 40 CFR 131.12(b)(1) 

will be interpreted. The likely result will be increased litigation over NPDES permit issuance in any state that implements 

a waterbody-by-waterbody approach unless the state acquiesces with EPA's preferences and utilizes a parameter-byparameter approach for all non-impaired uses. It is important to note that this is not a mere clarification of existing 

requirements, but would clearly impose new duties and obligations on some states to change regulatory classifications 

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of waterbodies and increase the number of waterbodies subject to high quality review. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

7.d.iii 

Comment ID 0264-A2.001.012 

Author Name: Chard-McClary Shellie 

Organization: Association of Clean Water Administrators 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

II. Antidegradation Policy and Implementation Methods 

1) Identifying high quality waters is a state-specific process 

Identification of high quality/Tier 2 waters is a state primacy decision, as is the methodology chosen by the state as
 

recognized by EPA in the preamble. [FN6] We support state WQS program decisions in this regard, provided they
 

operate within the framework of the Act - and believe that the incorporation of the 303(d) list into that decision-making is
 

within that state authority. If the water body-by-water body approach is acceptable, the mechanism by which high
 

quality water bodies receive this level of protection should be at a state's discretion.
 

Suggested revision:
 

§ 131.12(b)(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body
 

basis at the State's discretion,[begin strikeout] but must not exclude any water body from high quality water protection
 

solely because not all of the uses specified in CWA section 101(a)(2) are attained; [end strikeout]
 

Another option would be to include language in the final rule preamble clarifying that the proposed rulemaking does not
 

preclude a state's discretion to leave a waterbody off the Tier 2 list if one or more of its uses is not met.
 

[FN6] Id. at p. 11, col. 1 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

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7.d.ii: Section C 

7.d.iii 

Comment ID 0267-A1.001.006 

Author Name: Ingle April 

Organization: Georgia River Network 

• We also suggest EPA require Tier 2 antidegradation protections be applied on a parameter-by-parameter basis (rather 

than waterbody-by-waterbody). 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section B 

Comment ID 0268-A2.001.018 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

The EPA Proposal– Part 1: Identification of High Quality Waters 

As we have pointed out in the example from Oregon, states have figured out how to neuter the requirement to conduct 

Tier 2 reviews of high quality waters, with the support of EPA's policy that allows the waterbody-by-waterbody approach 

to identifying high quality waters subject to Tier 2 reviews. The obvious answer to this problem is to require that states 

use the parameter-by- parameter approach to identifying high quality waters just the way states use the parameter-byparameter approach to identifying impairments for purposes of listing them on the 303(d) list and for the purpose of 

developing TMDLs to restore those impairments. It is frankly absurd to create one set of approaches and assumptions 

for one purpose and an entirely different set of approaches and assumptions for the other half of the regulatory 

program. It dooms the entire project to certain failure. Add to this backdrop EPA's position that states need only 

complete a Tier 2 review when a proposal intends to lower water quality from the current levels, no matter how 

inappropriate those levels may be, and the Tier 2 review is virtually pointless. 

EPA says that states using the waterbody-by-waterbody approach "typically" identify HQW in advance. Oregon does 

not. EPA also says that states typically weigh a variety of factors to classify a water's "overall quality." Oregon does not. 

In other words we know of at least one state which challenges all of EPA's assumptions about inherent protections in 

the waterbody-by-waterbody approach. Instead, Oregon has taken EPA's lax approach to the maximum extent 

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allowable and as a result likely never uses Tier 2 with the exception of permit writers' filling out the checklist discussed 

above. Presumably this approach is what EPA terms "may be contrary to the intent of the antidegradation provisions." 

Why does EPA equivocate here with the use of the word "may"? Either it's contrary or it is not. EPA's description of the 

automatic removal of waters from being considered high quality based on just one parameter of impairment is precisely 

what Oregon does. We certainly agree with EPA's conclusions about the end result of this approach: a "large number of 

waters would never be subject to Tier 2 review for any parameter." Id. at 54527. Why does EPA not conclude 

definitively that this is contrary to the intent of antidegradation and if EPA's current rules do not lend themselves to that 

conclusion why is EPA not proposing to amend the rules in this rulemaking to ensure that states can no longer act 

contrary to the intent of the policy? Finally, as discussed below, EPA has put Oregon's "contrary" Tier 2 approach 

outside the realm of EPA's authority to reject it and EPA proposes in this rulemaking process to continue to do so while 

claiming that its proposed rules will advance the protection of water quality. These two positions are inconsistent. 

We object to EPA's promoting a hybrid of the waterbody-by-waterbody approach based on "overall quality." First, it is 

built on a flawed foundation, which EPA's notice does a fine job of explaining. Second, it introduces a level of ambiguity, 

discretion, and potential for political mischief into the process of using an "overall holistic assessment" approach. Third, 

when the parameter-by-parameter approach does such an excellent job of cleanly determining how to evaluate lowered 

water quality, tied in to existing 303(d)-related programs, why does EPA want to encourage states to wallow in 

unnecessary decision-making? States are already unable to conduct triennial reviews, unable to timely adopt new 

criteria, unable to get their 303(d) lists done, unable to complete the development of TMDLs, unable to effectively 

monitor their waters, and unable to reissue NPDES permits in a timely fashion (and are for the most part utterly 

disinterested in controlling nonpoint sources). EPA does not have the resources to step in and help fix these problems. 

So why does EPA want to encourage this level of navel staring on the part of states? What public policy end does it 

achieve to have states pondering the holistic water quality of each waterbody segment within its boundaries? Yes, EPA 

is correct that "numerous tools" exist to aid in this effort. But unanswered is whether in a time of constrained resources 

it makes any sense at all for states to indulge themselves in this play for opportunities to pollute. And unanswered is 

whether EPA has the resources to oversee such a highly discretionary process. Finally, does EPA really want to police 

the excuses that states will come up with to avoid being deemed as having "solely" excluded waterbodies from their 

high quality waters lists based on impaired parameters? The water quality program is complicated enough without 

inserting this extra layer of messiness. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section B 

Comment ID 0269-A2.001.006 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

a) Identification of High Quality Waters. EPA proposes that high quality waters be identified on a parameter-by08/04/2015 05:01 PM EDT 2-652 
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parameter basis, such that a waterbody can be high quality for one parameter even though it is listed on the 303(d) list 

for another. NYSDEC does support the concept of identifying high quality waters on an expanded basis, but believes 

the parameter-by-parameter approach would be cumbersome and impractical. We suggest an alternative use-by-use 

approach. For instance, a water could be impaired for fishing due to PCB contamination, but still be high quality for 

swimming. Such identification of high quality/Tier 2 waters is a state primacy decision and should not be mandated. If 

the use-by-use approach is acceptable, the mechanism by which water bodies receive this level of protection should be 

at a state's discretion. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section C 

Comment ID 0270-A1.001.005 

Author Name: Todd Andrew 

Organization: Colorado Water Quality Control Commission 

IV. Antidegradation 

The Commission is committed to maintenance and protection of high quality waters, and for that reason adopted an 

antidegradation policy and implementation methods which have been part of Colorado's water quality standards 

framework for many years. The Commission supports EPA's endorsement of the waterbody-by-waterbody approach. 

However, the Commission has grave concerns regarding EPA's proposed restrictions on the waterbody-by-waterbody 

approach, specifically the limitation that a waterbody-by- waterbody approach "must not exclude any water body from 

high quality water protection solely because not all of the uses specified in CWA section 101(a)(2) are attained." EPA's 

new proposed limitation is a complete reversal of EPA's position and the court's decision in Kentucky Waterways 

Alliance v. Johnson, 540 F.3d 466 (6th Cir. 2008). In that decision, the court held that the regulations as they currently 

exist allow for a water to be excluded from Tier II protection if the water is impaired for either aquatic life or recreationbased uses. EPA has not explained the basis for its reversal of position. EPA has already approved Colorado's 

antidegradation program which was developed under the current federal regulations, and the Commission is concerned 

about the consequences that the new restrictions would cause to Colorado's program. It is unclear what motivation 

there is for adopting these restrictions when Colorado has had a successful antidegradation program in place and no 

real or perceived environmental benefit would come from the new restrictions. Colorado employs a waterbody-bywaterbody approach which is structured with a fundamental intention to take a holistic view of a waterbody, which is 

EPA's stated intent. The Commission believes that EPA should continue to allow states flexibility to utilize holistic 

approaches like Colorado's to provide antidegradation protection and should not adopt the proposed restrictions to the 

waterbody-by-waterbody approach. 

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Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section C 

Comment ID 0272-A2.001.015 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

IV. ANTIDEGRADATION 

A. EPA Must Abandon The Water Body Approach To Antidegradation As Not Adequately Protective Under The Clean 

Water Act. 

EPA proposes to recommend to states the parameter by parameter approach to identifying "high quality" waters (Tier II 

waters) for antidegradation purposes, but retains the inadequate approach of states identifying high quality waters on a 

water body by water body basis as less-favored, but still allowed. See 78 Fed. Reg. at 54,527-28. While EPA attempts 

in this rulemaking to put more limits and structure on states that use the water body approach, EPA simply trades a 

currently bad policy that is not compliant with antidegradation requirements for a vague policy that will require a socalled "holistic assessment" of a water body with a variety of factors that will likely result in confusion and error by 

states. The Water Protection Groups ask EPA to abandon the failed water body approach and to adopt and require the 

parameter by parameter approach. 

1. The parameter basis reflects the correct approach for identifying Tier II waters for higher antidegradation protection. 

Tier II or "High Quality" waters have water quality that exceeds or is better than water quality standards. The Clean 

Water Act and EPA regulation have long required states to ensure that those waters retain that high quality without any 

degradation absent a demonstration that some degradation is necessary to accommodate important economic or social 

development and that the state assures that the highest, best treatment to protect existing uses is applied. 40 C.F.R. § 

131.12(2). How some states identify High Quality waters has been problematic. Because some pollutants are pervasive 

and cause problems for meeting standards in many waters, even waters that would otherwise be completely pristine 

might violate standards for one or more parameters (mercury is an obvious example), but are cleaner than standards 

for many (or all) others. A state should not be allowed to apply lesser protections to what might otherwise be a High 

Quality Water, allowing it to degrade for many different pollutants, simply because it exceeds a standard for a single 

pervasive pollutant. That is the antithesis of the basic principles of the Clean Water Act and antidegradation regulations. 

The water body approach to identifying High Quality waters means that waters will become more degraded rather than 

less-a ludicrous result under the Act. 

Conversely, the parameter approach conforms to the dictates of the Clean Water Act to eliminate discharges and 

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protect from pollution, and conforms to antidegradation regulations by ensuring that waters that are better than any 

given water quality standard will be protected for those standards and cleaned up for the others. A water that is 

impaired by mercury can still be protected as a High Quality water for all other pollutants, as opposed to allowing it to 

degrade for everything and cleaned up later (when it is much more difficult, much more expensive and has resulted in 

significant potential loss of aquatic benefits.) There is no support in the Act for the water body approach. 

EPA seems to recognize this with its preference and recommendation to states to adopt a parameter approach, yet it 

proposes to continue to allow states to use the water body approach albeit with some additional limitations. The 

limitations identified by EPA are inadequate to prevent degradation. The proposed regulatory language would only limit 

states from "exclud[ing] any water body from high quality water protection solely because not all of the uses specified in 

CWA section 101(a)(2) are attained." 78 Fed. Reg. at 54544. This leaves states with ample room to claim that some 

waters are not of high quality, based on impairment of only one parameter. In the preamble to the proposed rule (but 

not the proposed rule text), EPA suggests a number of factors that states might consider in conducting a more "holistic" 

assessment. EPA states: 

Some of the factors a state or tribe may consider include, but are not limited to, existing aquatic life uses including 

aquatic assemblages, habitat, hydrology, geomorphic processes, and landscape condition; existing recreational uses 

and recreational significance; and the overall value and significance of the water body from an ecological and publicuse perspective. 

78 Fed. Reg. at 54,527. (Emphasis added.) The Water Protection Groups strongly oppose this last factor, and urge 

EPA to delete it from the final rule preamble. This factor is so vague and poorly worded, it is likely to be cited by states 

as an excuse not to identify high quality waters simply by declaring any individual water body as not very important to 

public use. Further, the detail and amount of work inherent in application of the "holistic" factors necessary to use the 

water body approach will require a level of vigilance by EPA (not to mention citizens) that EPA has not demonstrated to 

date when monitoring state compliance with antidegradation requirements. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section B 

Comment ID 0274-A2.001.008 

Author Name: Yeaton Violet 

Organization: Region 10 Regional Tribal Operations Committee 

4. Antidegradation 

The Tribal Caucus supports the Proposed Rules efforts to amend the antidegradation requirements through clear, 

regulatory requirements, but is concerned about the approach set forth in this proposal. However, the waterbody-by08/04/2015 05:01 PM EDT 2-655 
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waterbody approach to Tier 2 Reviews will likely result in more confusion and error. 

Under the waterbody-by-waterbody approach, high quality waters could be excluded from Tier 2 because one pollutant 

is present although the water is otherwise pristine. This approach represents creates a loophole that could allow the 

degradation of high water quality. Moreover, the Proposed Rule lacks any requirements for the waterbody-by-waterbody 

designation. 

The Tribal Caucus urges EPA to revise the Proposed Rule to a parameter-by-parameter approach for identifying high 

quality waters and that all parameters are to be evaluated. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section A 

7.d.ii: Section B 

7.d.iii 

Comment ID 0275-A2.001.008 

Author Name: Reeves Sarah 

Organization: Colorado Monitoring Framework 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

High Quality Waters - § 131.12(b)(1). The CMF believes that a waterbody with impairments would not appropriately be 

labeled as a high quality water. Therefore, in Tier 2 waters it is not appropriate to include segments that are water 

quality limited (e.g., "any segment where it is known that water quality does not meet applicable water quality standards, 

and/or is not expected to meet applicable water quality standards, even after the application of the technology-based 

effluent limitations required by sections 301(b) and 306 of the Act"). This approach allows states flexibility to develop 

and implement antidegradation policies to address site-specific considerations. 

We recommend the proposed language in § 131.12(b)(1) be modified as follows: 

(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body basis at the 

State's discretion, [begin strikeout] but must not exclude any water body from high quality water protection solely 

because not all of the uses specified in CWA section 101(a)(2) are attained [end strikeout] [begin new text] taking into 

consideration appropriate chemical, biological, and physical characteristics [end new text]. . . 

Response 

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For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0280-A2.001.011 

Author Name: Aspatore Amanda 

Organization: National Mining Association 

Identifying Tier 2 Waters 

While the proposal states that "high quality waters may be identified on a parameter-by-parameter basis or on a water 

body-by-water body basis," EPA contradicts that statement by requiring states and tribes to ensure that waters are not 

excluded from Tier 2 protection solely because not all of the uses specified in Sec. 101(a)(2) are attained. This 

requirement places undue restrictions on the use of the water body-by-water body approach to identifying Tier 2 waters, 

and implies that EPA will evaluate and review high quality waters on a parameter-by-parameter basis regardless of a 

state's approach to identifying such waters. EPA, therefore, should instead specify that states and tribes have discretion 

concerning how to conduct their Tier 2 reviews. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

7.d.ii: Section C 

Comment ID 0283-A1.001.013 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

However, if any applicable criterion for aquatic life is not being met, the water body should not be considered high 

quality for aquatic life and, similarly, if any criterion for recreational use protection is not being met, the water body 

should not be considered high quality for recreation, unless those uses are not attainable . This is consistent with the 

alternative suggested in the draft regulations at page 54528. 

Response 

For response to this comment, see the following response essay(s): 

7.d.ii 

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7.d.ii: Section B 

7.d.ii: Section C 

7.d.iii 

7.D.III - ANTIDEG HQ - TIER 2 REVIEW 

Comment ID 0166-A2.001.008 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

KDOW and EPA have long experience with antidegradation policy. Following nearly fourteen years of litigation, 

Kentucky's waterbody-by-waterbody approach to antidegradation review was approved by the United States Court of 

Appeals for the Sixth Circuit in Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th Cir. 2008). EPA was aware 

of how Kentucky implemented antidegradation review on a waterbody-by-waterbody basis, approved the state's 

antidegradation provisions, and vigorously defended the decision. As the court noted, quoting EPA's own language in 

its Advanced Notice of Proposed Rulemaking, 63 FR 36742 (July 7, 1998 [63 FR at 36783] the waterbody-bywaterbody approach "allows States and Tribes to focus limited resources on protecting higher-value State or Tribal 

Waters." Id. at 477. This is still true, and EPA again approved amendments to Kentucky's Antidegradation Policy 

Implementation regulation in November, 2010, which continues to be conducted successfully on a waterbody-bywaterbody approach. The proposed WQS regulation contradicts EPA's long history of approving and successfully 

defending the waterbody-by-waterbody approach and begs the question why would EPA seek to make such a change 

when it approved the waterbody-by-waterbody approach to antidegradation as recently as 2010. The proposed WQS 

regulation contradicts the ruling of the Sixth Circuit Court and the precedent of EPA's approval of Kentucky's 

Antidegradation Policy Implementation Methodology as well as EPA's previously published position regarding the 

waterbody-by-waterbody approach. 

Response 

For response to this comment, see the following response essay(s): 

7.d.iii 

7.d.iii: Section B 

Comment ID 0175-A1.001.019 

Author Name: Canton Steven 

Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. 

f. In the preamble EPA proffers several examples of how Tier 2 reviews could be conducted. Many of these options 

require extensive amounts of data that would be very costly to the states, adding yet another financial burden (to the 

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HAU and UAA requirements noted earlier). We recommend EPA use the last option: that EPA state that states and 

tribes have discretion on how to conduct the Tier 2 reviews, as is current policy. 

Response 

For response to this comment, see the following response essay(s): 

7.d.iii 

7.d.iii: Section A 

Comment ID 0186-A1.001.006 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

• The rule should allow states to have considerable discretion in selecting their methods for Tier 2 antidegradation 

review. 

Response 

For response to this comment, see the following response essay(s): 

7.d.iii 

7.d.iii: Section A 

Comment ID 0186-A1.001.023 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

The rule should allow states to have considerable discretion in selecting their methods for Tier 2 antidegradation review. 

The proposed rule suggests that one option for rule clarification is to allow state discretion as to selecting methods for 

Tier 2 antidegradation review (78 Fed. Reg. 54528). The proposed rule language at 40 CFR 131.12(b)(1) would codify 

this principle, and API supports this proposal. 

API believes that each state has developed methods for both identifying high quality waters within the state in 

accordance with Section 101(a) of the CWA and protecting their existing high quality waters consistent with the 

antidegradation provisions of the existing language in 40 CFR 131.12. Prescriptive Federal regulations establishing 

methods that states must use for antidegradation review will be incompatible with many states' methodologies for 

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identifying and protecting high quality surface waters. For example, the states that use biological criteria to determine 

the aquatic life use subcategories for individual water bodies and to determine whether or not, the uses are being both 

achieved and constitute "high quality waters" will not be able to directly use constituent-by-constituent approaches in 

the determination of whether a new or changed discharge constitutes a lowering of water quality because the biological 

criteria integrate the effects of multiple physical and chemical characteristics and thus are not susceptible to this 

analysis format. States using such methods for determining uses and high quality waters must have the discretion to 

adopt antidegradation evaluation methods that are compatible with their use designations and supporting 

methodologies for determining water quality that supports such designated uses. 

API therefore supports the proposed language for 40 CFR 131.12(b)(1) that will continue the current EPA policy of 

allowing each state to establish its own antidegradation policies and methodologies, subject to EPA and public review 

and comment. 

Response 

For response to this comment, see the following response essay(s): 

7.d.iii 

7.d.iii: Section A 

Comment ID 0201-A1.001.019 

Author Name: Godfrey Mike 

Organization: Alabama Power 

Separately, in response to EPA's specific request for comments, Alabama Power believes EPA should refrain from 

specifying how States determine for which parameters Tier 2 review must be conducted depending on the approach 

used to identify high quality waters. Instead, EPA should specify that States have discretion on how to conduct Tier 2 

reviews, which is in accordance with the fundamental principle under the CWA that the primary responsibility for 

establishing and implementing WQS rests with States. 

Response 

For response to this comment, see the following response essay(s): 

7.d.iii 

7.d.iii: Section A 

Comment ID 0212-A1.001.013 

Author Name: Norton Kelly 

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Organization: Arizona Mining Association 

• Possible specification by EPA of how a state determines for which parameters a Tier 2 review is required: EPA solicits 

comment on whether it should specify "how a state or tribe determines for which parameters Tier 2 reviews must be 

conducted depending on the approach used to identify high quality waters." See 78 Fed. Reg. at 54528. The AMA 

generally supports the alternative approach mentioned by EPA that would allow states discretion on how to conduct 

Tier 2 reviews. Such an approach would better recognize the primary role of states in the water quality standards 

process under the CWA, and provide the flexibility for different states to craft approaches appropriate to their conditions 

and needs. 

Response 

For response to this comment, see the following response essay(s): 

7.d.iii 

7.d.iii: Section A 

Comment ID 0219-A1.001.010 

Author Name: McNelly Jeff 

Organization: ARIPPA 

C. Identifying Tier 2 Waters 

We are concerned about how the language in one instance allows for "high quality waters to be identified on a 

parameter-by-parameter basis or on a water body-by-water body basis", but later the Agency requires that waters are 

not excluded from Tier 2 protection solely because not all of the uses specified in Sec. 101(a)(2) are attained. As a 

result, this creates problems in conducting the analysis on a water-body by water-body approach. EPA should give the 

States and Tribes discretion on how it conducts its review of Tier 2 Waters. 

Response 

For response to this comment, see the following response essay(s): 

7.d.iii 

7.d.iii: Section A 

Comment ID 0230-A1.001.016 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

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On the question of what parameters must be considered as to waters that are given Tier 2 protection, EPA does not 

propose language. In its discussion of the question (Fed. Reg.78 FR 54528), EPA allows that either all parameters 

should be considered for "high quality waters" or only those parameters relevant to the uses for which the water body is 

meeting uses. Applying this latter approach to our four designated use example from above, for a hypothetical water 

body meeting the aquatic life use, but not meeting the swimming use because of e coli or the fish consumption use 

because of mercury, there would need to be an antidegradation analysis before allowing new loadings of ammonia or 

BOD. In this hypothetical, the state need not protect the lake against unnecessary new loadings of selenium because 

the fish consumption use is impaired by mercury. 

Because we believe firmly that EPA should adopt a rule requiring the parameterbyparameter approach, we propose that 

the agency adopt the following language to clarify 40 C.F.R. 131.12(a)(2) in the newly proposed 131.12(b)(1): 

Where, for any parameter, the quality of the waters exceed levels necessary to support the propagation of fish, 

shellfish, and wildlife and recreation in and on the waters, that quality shall be maintained and protected unless the 

State or Tribe finds, after full satisfaction of intergovernmental coordination and public participation provisions of the 

State or Tribes' continuing planning process, that allowing lower water quality is necessary to accommodate important 

economic or social development in the area in which the waters are located. 

We perceive, however, that the agency is unwilling to adopt the parameterbyparameter approach but instead wishes to 

adopt an approach that requires as a minimum only that waters that are attaining 101(a)(2) uses be protected as to the 

uses they are attaining. While we emphatically disagree with both the legality and soundness of this approach, the 

Agency should at minimum propose language that accurately captures its apparent intent. Following EPA's draft 

language as closely as possible, we believe the language that captures EPA's intent is: 

High quality waters are identified on a parameterbyparameter basis or on a waterbodybywaterbody basis at the State's 

discretion, but states must not exclude from high quality water protection any water body that is attaining all of the uses 

specified in CWA section 101(a)(2) and states must further protect every water body as to all parameters relating to the 

101(a)(2) uses the water is attaining; ...[FN7] 

[FN7] To return to our simplified example, under this proposed language, if the lake met aquatic life standards and 

drinking water standards but failed to attain recreation standards due to pathogens and fish consumption due to 

mercury, Tier 2 would apply to applications to add loadings of ammonia, BOD and nitrate because the lake is high 

quality as to aquatic life and drinking water, but Tier 2 would not be applicable to new proposed loadings of selenium 

because the water is impaired as to fish consumption. This would be true even though there is assimilative capacity to 

protect as to selenium. 

Response 

For response to this comment, see the following response essay(s): 

7.d.iii: Section A 

08/04/2015 05:01 PM EDT 

7.d.iii 

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Comment ID 0231-A2.001.028 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

With regard to clarifying the options for identifying Tier 2 high quality waters, EPA's proposed language appears to 

indicate that waterbody-by-waterbody analysis would be allowed. However, it then states a waterbody may not be 

excluded from high quality water protection because not all uses are attained. This places restrictions on the waterbodyby-waterbody approach, and implies EPA would evaluate and review high quality waters on a parameter-by-parameter 

basis regardless of the State's determination and identification of high quality waters. EPA should specify that States 

and Tribes have discretion on how to conduct the Tier 2 reviews - as per the agency's current policy. 

Response 

For response to this comment, see the following response essay(s): 

7.d.iii 

7.d.iii: Section A 

Comment ID 0240-A2.001.020 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

f. In the preamble EPA proffers several examples of how Tier 2 reviews could be conducted. Many of these options 

require extensive amounts of data that would be very costly to the states, adding yet another financial burden (to the 

HAU and UAA requirements noted earlier). We recommend EPA use the last option: that EPA state that states and 

tribes have discretion on how to conduct the Tier 2 reviews, as is current policy. 

Response 

For response to this comment, see the following response essay(s): 

7.d.iii 

7.d.iii: Section C 

Comment ID 0244-A2.001.017 

Author Name: Loomis Marion 

Organization: Wyoming Mining Association 

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With regard to clarifying the options for identifying Tier 2 high quality waters, EPA's proposed language appears to 

indicate that waterbody-by-waterbody analysis would be allowed. However, EPA contradicts this by stating that a 

waterbody may not be excluded from high quality water protection because not all uses are attained. This places 

restrictions on the waterbody-by-waterbody approach, and implies EPA would evaluate and review high quality waters 

on a parameter-by-parameter basis regardless of the State's determination and identification of high quality waters. 

EPA should specify that States and Tribes have discretion on how to conduct the Tier 2 reviews - as per the agency's 

current policy. 

Response 

For response to this comment, see the following response essay(s): 

7.d.iii 

7.d.iii: Section A 

Comment ID 0248-A2.001.010 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

First, EPA invites comment on whether the Agency should specify how a state should determine which parameters 

require review as part of its evaluation about whether it is necessary to lower the water quality standards for Tier 2 

waters (the "Tier 2 review"), or whether EPA should leave the method of Tier 2 review to the discretion of the states. 

See 78 Fed. Reg. at 54528. Mosaic believes that EPA should leave the method of Tier 2 review to the states. The 

reasons supporting that view are simple: this is a localized determination, it may or may not require review of multiple 

parameters, it may or may not require review of particular segments of a water body, and any number of other local 

variables may come into play. If EPA could establish the method of Tier 2 review it would confine the discretion of the 

states (without any apparent benefit) and impede the states' ability to apply the best options to address local conditions 

Accordingly, EPA should continue the longstanding practice of leaving the form of Tier 2 review to the states, requiring 

only that any water body or parameter that is supporting a designated use be subject to an appropriate Tier 2 review 

before reducing its designated use protection. 

Response 

For response to this comment, see the following response essay(s): 

7.d.iii 

7.d.iii: Section A 

Comment ID 0278-A2.001.016 

Author Name: Hornback Chris 

08/04/2015 05:01 PM EDT 2-664 
Chapter 2 - Comment Documents Antidegradation 

Organization: National Association of Clean Water Agencies 

NACWA respectfully submits that how a state conducts its antidegradation Tier 2 review, and what it requires as part of 

any successful Tier 2 demonstration, are squarely within the state's discretion as part of its primary authority over the 

water quality standards program. Imposing new, substantive requirements as a matter of federal law intrudes on state 

primacy, and subjects states to wholly new and burdensome administrative requirements that will be both costly and 

time consuming to implement. 

Response 

For response to this comment, see the following response essay(s): 

7.d.iii 

7.d.iii: Section A 

7.E - ANTIDEG - ALT ANALYSIS 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

7.E.I - ANTIDEG ALT - GEN SUPP 

Comment ID 0123-A1.001.013 

Author Name: Chin Ryan 

Organization: NA 

The second proposal that states and tribes will only be able to make a finding that lowering water quality is necessary, 

only after conducting an alternatives analysis that evaluates the range of non-degrading and minimally degrading 

practicable alternatives that have the potential to prevent or minimize the degradation, also supports the overall purpose 

of the CWA. Specifically, a finding that lowering water quality is necessary, should only be allowed after all practicable 

alternatives have been examined and evaluated, because a finding that lowering water quality is necessary implies that 

there is no other possible practicable alternative. If there are other alternatives that can achieve the same goal, but with 

a much less impact (whether it is nondegrading or minimally degrading), then lowering the water quality would not be 

necessary. This should have been implicit or implied in the reading of Tier 2 Review, which states "1) whether allowing 

lower water quality is necessary to accomplish the proposed activity, typically by examining alternative ways of 

accomplishing the activity through an alternatives analysis; and 2) whether the proposed activity that will result in lower 

water quality will accommodate important economic or social development, through a socio-economic analysis." The 

consideration of alternatives should have been implied within the first step of the Tier 2 Review, and here EPA is simply 

now making it an express requirement to fulfill the alternatives consideration. As EPA has established and explained 

that practicable means "alternatives considered must be available for the proposed activity, technologically possible, 

able to be done or put into practice successfully at the site in question, and economically viable," allows for enough 

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factors to be weighed into the overall reasonable consideration of both the finding and possible alternatives, without 

making the review "strict in theory, fatal in fact." Moreover, by requiring states and tribes to first identify practicable 

alternatives, and then requiring an evaluation of the practicable alternatives to establish the extent of degradation that 

would result, it allows for leeway for states and tribes to pick from a range of alternatives representing different levels of 

degradation, and allows the states and tribes to make a required finding considering the factors outlined above to come 

to a conclusion and whether an alternative exists that would accomplish the overall result and goal while lowering the 

amount of proposed degradation. 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section A 

Comment ID 0129-A2.001.012 

Author Name: Steidel Robert 

Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc. 

B. Alternatives Analysis Prior to Lowering of Water Quality 

Second, we agree with EPA's decision to specifically require an alternatives analysis as part of any decision on lowering 

of water quality. We believe that, although not currently explicit in the regulation, an alternatives analysis is a natural 

element of any decision on lowering of water quality. 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section A 

7.e.i: Section B 

7.i 

Comment ID 0150-A1.001.010 

Author Name: Heisig-Mitchell Jamie 

Organization: Hampton Roads Sanitation District 

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2. Alternatives Analysis Prior to Lowering of Water Quality 

HRSD agrees with EPA's decision to specifically require an alternatives analysis as part of any decision on lowering of 

water quality. HRSD believes that, although not currently explicit in the regulation, an alternatives analysis is a natural 

element of any decision on lowering of water quality. 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section A 

7.e.i: Section B 

7.i 

Comment ID 0154-A2.001.005 

Author Name: McGee Beth 

Organization: Chesapeake Bay Foundation 

CBF also supports EPA's proposal to require an alternatives analysis as part of the Tier 2 review. Clarifying the 

expectations and providing additional guidance to the states for how these evaluations should be conducted will 

increase the effectiveness of Tier 2 protection and promote consistency in implementation. Again, based on our 

experience within the Chesapeake Bay watershed, we see a huge discrepancy among the jurisdictions in the level of 

detail regarding Tier 2 evaluations. EPA's proposal to require a range of alternatives be identified and evaluated will 

greatly improve the current program. 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section A 

Comment ID 0179-A2.001.005 

Author Name: Spotts David 

Organization: Pennsylvania Fish and Boat Commission 

Furthermore, the PFBC agrees that any decision to reduce the protection of a High Quality Water must include a fully 

explored alternatives analysis to avoid and minimize potential degradation to the waterbody and that variances should 

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be time limited and subject to review with changes to the most updated scientific evidence. 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section A 

7.e.i: Section B 

7.e.i: Section H 

7.i 

8.g.iii 

Comment ID 0199-A1.001.012 

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

b. Alternatives analysis 

EPA proposes to add a requirement to 40 CFR § 131.12(b)(2) that states and tribes conduct an alternatives analysis 

before making a finding that lowering water quality is necessary. The regulation would also require that if a practicable 

alternative is available, that alternative must be implemented before lowering water quality. We support this change with 

the addition of the following underlined phrase to prevent states from adopting "minimally degrading" alternatives that 

are more degrading than the non-degrading or "least degrading alternatives." The alternatives analysis should 

"evaluate[] a range of non-degrading and [begin strikeout] minimally [end strikeout] [begin new text] least [end new text] 

degrading practicable alternatives that have the potential to prevent or minimize the degradation associated with the 

proposed activity." [FN8] 

[FN8] Id. at 54,528. 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section D 

Comment ID 0204-A1.001.003 

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Author Name: Thomas John
 

Organization: Law office of John R. Thomas on behalf of Chassahowitzka River Restoration Committee, et al.
 

The EPA Proposal-Part 2: Alternatives Analysis 

The Interest Groups support a publicly open and transparent alternatives analysis process. 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section A 

7.e.i: Section B 

Comment ID 0212-A1.001.016 

Author Name: Norton Kelly 

Organization: Arizona Mining Association 

• Level of effort for antidegradation alternatives analysis: The preamble states that the level of detail and documentation 

for a Tier 2 alternatives analysis should be tailored to the significance and magnitude of the particular circumstances 

encountered. See 78 Fed. Reg. at 54529. This is a very important concept and should be included in the rule, rather 

than in unenforceable and easily missed preamble language. 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section C 

Comment ID 0216-A2.001.004 

Author Name: Brisson Brook
 

Organization: Trustees for Alaska on behalf of the Alaska Center for the Environment et al.
 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

EPA Proposal Part 2: Alternatives Analysis 

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EPA proposes adding a specific subsection to clarify that states must undertake an alternatives analysis prior to finding 

that lowing water quality is necessary. Proposed Rule, 78 Fed. Reg. at 54,528. To the extent that this requirement is 

unclear in the existing regulation or in practice, Commenters generally support the proposal. [FN4] Commenters believe 

that to allow the reduction in water quality, the alternatives considered must include less-degrading and non-degrading 

alternatives to the proposed discharge, including no-discharge. And the alternative selected must be the leastdegrading alternative. This requirement is consistent with the goals of the CWA in general and antidegradation. 

Commenters propose the following changes to EPA's proposed language and existing regulations to address these 

concerns (new language in bold; removed language in strikethrough): 

40 C.F.R. § 131.12(b)(2): "The State will only make a finding that lowering high water quality is necessary, pursuant to 

paragraph (a)(2) of this section, after conducting an alternatives analysis that evaluates a range of non-degrading, 

[begin strikeout] and [end strikeout] minimally-degrading, [begin new text] and least-degrading [end new text] 

practicable alternatives that have the potential to prevent or minimize the degradation associated with the proposed 

activity. If the State can identify any [begin new text] less-degrading [end new text] practicable alternatives, the State 

must choose [begin strikeout] one [end strikeout] [begin new text] the least degrading [end new text] of those 

alternatives to implement when authorizing a lowering of high water quality." 

[FN4] By definition, something cannot be "necessary" unless there are no alternatives available. 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section D 

Comment ID 0223-A1.001.008 

Author Name: Lindekugel Buck 

Organization: Grassroots Attorney on behalf of Southeast Alaska Conservation Council 

Alternatives Analysis 

SEACC supports EPA's proposal to clarify that a Tier 2 review explicitly requires an alternative analysis. Two examples 

since the State of Alaska assumed primacy under the pollutant discharge program reveal how the lack of this specific 

requirement in the existing regulation allows a state to lower water quality without making a reasonable finding that such 

lowering is necessary. 

ADEC Authorization No. AK-G70-1063 - Discharge of Bark and Woody Debris at the Pothole Log Storage Area in 

Alexander Bay. 

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The intermittent storage of log raft bundles in Alexander Bay in Wrangell Narrows (known as the Pothole) has been a 

significant source of controversy with the Tonka Timber Sale, approved by the Tongass Forest Supervisor in March of 

2012. The Pothole is important for commercial crabbing, and log storage is known to negatively affect the seafloor and 

crab populations. The record for ADEC's authorization shows the Forest Service misrepresented and omitted pertinent 

information from its application for authorization to store log rafts instead of barging the logs. The Forest Service hid the 

ball from ADEC by claiming that barging doubled the cost of log transport when it only increased the cost by 5 percent 

and telling ADEC "there was no available upland storage anywhere" after it had chosen to develop a 5-acre upland log 

sort yard in its timber sale decision. In spite of this record, the ADEC Commissioner found that in light of "the broad 

discretion for determining which alternatives to consider which is conferred by the Department's regulations, the ... 

consideration of alternatives was adequate to provide a reasonable basis for its Decision authorizing the Pothole LSA." 

See Commissioner of ADEC, Order Denying Request for Adjudicatory Hearing at 15 (Aug. 29, 2012). Instead of 

properly applying the required standards when making a finding that lowering water quality is necessary, the 

Commissioner instead applied broad discretionary authority in Alaska's WQS that allow ADEC to approve exceedances 

of Alaska's strict residue standard. See 18 AAC 70.210(b)(1). 

ADEC Permit No. AK0043206, Hecla Greens Creek Mine. 

Hecla Greens Creek Mine is an underground lead, zinc, silver, and gold mine located within the Admiralty Island 

National Monument. Full scale development of the mine began in 1987. Wastewater from the mine's acid-generating 

tailings and waste rock is currently discharged into Hawk Inlet, classified by ADEC as a Tier 2 high quality water. 

Since the spring of 2011, ADEC has attempted to reissue a discharge permit for the mine. In September 2011, ADEC 

approved a permit that doubled the previously authorized size of the mixing zone for cadmium, copper, cyanide, lead, 

mercury, zinc and pH. This decision was remanded to ADEC staff to address issues raised by SEACC. During that 

remand, we provided ADEC with information we had received from Dr. David M. Chambers of the Center for Science in 

Public Participation on an approach that made the mixing of mine pollutants in Hawk Inlet unnecessary - a 

demonstrated treatment alternative to direct discharges from underground gold mines previously approved by ADEC 

and EPA for the Pogo Mine in 2011. 

ADEC issued a draft permit for public review in April of 2013. Without explanation, the draft permit fact sheet lacked any 

discussion of the demonstrated treatment alternative we had identified for the Hawk Inlet mixing zone. In our comments 

on the draft permit, we supplemented the information previously shared with evidence that this treatment alternative 

appeared economically feasible. 

Late last year, ADEC issued a notice of a preliminary draft Alaska Pollutant Discharge Permit prepared for Hecla's 

review. Again, without explanation, the preliminary draft permit fact sheet contained no information evaluating the flow 

augmentation alternative to the discharge of pollutants into Hawk Inlet. ADEC is now preparing a draft permit and fact 

sheet for a formal 30- day public review period later this winter. We do not reasonably expect the draft permit to 

consider practicable, less-degrading alternatives to the mixing zone. 

Response 

For response to this comment, see the following response essay(s): 

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7.e.i 

7.e.i: Section A 

Comment ID 0236-A2.001.014 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

Alternatives Analysis 

WDNR supports the following clarifications: 

• An alternatives analysis is needed before the State can find that lowering of high water quality is necessary. 

• State's should choose practicable and economically viable alternatives to avoid lowering of high quality waters, if such 

alternatives exist. 

Recommended changes: 

• WDNR requests that EPA provide guidance on how to make a successful "alternatives analysis" demonstration. 

• WDNR requests that paragraph (b)(2) be amended to read: ".... If the State can identify any-practicable and 

economically viable alternatives, the State must choose one of those alternatives..." (language addition bolded for 

ease). 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section E 

7.e.i: Section F 

Comment ID 0249-A2.001.012 

Author Name: Calamita F. Paul
 

Organization: General Counsel on behalf of The Wet Weather Partnership et al.
 

B. Alternatives Analysis Prior to Lowering of Water Quality 

Second, we agree with EPA's decision to specifically require an alternatives analysis as part of any decision on 

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activities that will lower water quality beyond de minimis amounts. We believe that, although not currently explicit in the 

regulation, an alternatives analysis is a natural element of any decision on lowering of water quality (by more than de 

minimis amounts). 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section A 

7.i 

Comment ID 0261-A2.001.011 

Author Name: Bartlett Drew 

Organization: Florida Department of Environmental Protection 

3) Alternatives Analysis. 

Florida already requires an alternatives analysis for NPDES permits authorizing a new or expanded discharge and 

generally supports EPA's attempt to clarify this important component of the antidegradation review. However, given the 

lead in language, it is not clear in what context an alternatives analysis is required. Traditionally, this analysis has 

always been performed in the context of permitting. Assuming that remains the case, the rule language needs to be 

clarified. 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section G 

7.g.iii 

Comment ID 0268-A2.001.014 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

We agree that a Tier 2 review must contain an alternatives analysis. 

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Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section A 

Comment ID 0268-A2.001.019 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

The EPA Proposal– Part 2: Alternatives Analysis 

We support EPA's proposal. 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section A 

Comment ID 0271-A1.001.007 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

7. Addition of paragraph (b)(2) to § 131.12. The Pueblo of Sandia agrees with the additions to this paragraph. The 

Pueblo of Sandia also agrees that the lowering of water quality requirements should only be conducted when absolutely 

necessary and be documented through alternative analysis. 

Response 

For response to this comment, see the following response essay(s): 

7.e.i 

7.e.i: Section A 

7.e.i: Section B 

7.E.II - ANTIDEG ALT - GEN OPP 

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Comment ID 0119-A1.001.009 

Author Name: Lemke Lee 

Organization: Georgia Mining Association 

Alternatives Analysis 

GMA finds the proposal to codify a paragraph (b)(2) to 40 CFR 131.12 as redundant and the micromanagement of the 

States by EPA. Given that §131.12(a)(2) already requires that the State protect existing uses fully and implement the 

"highest statutory and regulatory requirements" to minimize the impact of point sources and "all cost-effective and 

reasonable best management practices" for nonpoint source control. Should it be necessary to require States to 

develop statewide antidegradation implementation methods, the content of those methods should be at the discretion of 

the states. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section Q 

7.f.i 

7.g.ii 

Comment ID 0128-A1.001.007 

Author Name: Boon Richard 

Organization: California Stormwater Quality Association 

In particular, we are concerned with elements of the requirements to conduct an alternatives analysis per 131.12(b)(2). 

This proposal unnecessarily expands the current scope of antidegradation analyses and the proposed language in 

131.12(b)(2) should be removed. The requirement that "If the State can identify any practicable alternatives, the State 

must choose one of those alternatives to implement when authorizing the lowering of high quality water," would not be 

consistent with the intent of considering the accommodation of important economic and social development. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

7.e.ii: Section J 

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Chapter 2 - Comment Documents Antidegradation 

Comment ID 0131-A1.001.013 

Author Name: Rager David 

Organization: Sanitation District Number 1 of Northern Kentucky 

Comment 5b - The proposed language in § 131.12(b)(2) should be strengthened to better reflect the importance of 

choosing alternatives that are both effective and affordable. EPA's proposal indicates that water quality may be lowered 

"after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading practicable 

alternatives..." In the Federal Register, EPA defines a practicable alternative as one that is "available for the proposed 

activity, technologically possible, able to be done or put into practice successfully at the site in question, and 

economically viable" (78 FR 54528). Although EPA did not provide a definition of "economically viable," SD1 interprets 

the phrase to mean that only affordable treatment alternatives should be considered practicable. We support EPA's 

willingness to include affordability in the consideration of what constitutes a practicable alternative. 

We respectfully request that the definition of "practicable" be included in the regulation itself, and that the term 

"economically viable" be replaced with "affordable." 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section O 

Comment ID 0133-A2.001.011 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

e. LDEQ suggests that the proposed rule utilizes several terms that require definition: 

i. Degradation 

ii. Minimally-degrading 

iii. Non-degrading 

iv. Practical Alternative 

v. Alternative analysis 

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f. LDEQ suggests that, at a minimum, the term "degradation" be defined to describe a permanent, measurable lowering 

of water quality as a result of a point source discharge(s). 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section O 

Comment ID 0134-A1.001.014 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

• Alternatives analysis - EPA's proposal to require states to perform an alternatives analysis when determining if 

lowering high water quality is necessary opens the door to litigation and undermines state primacy, especially in 

conjunction with EPA's proposed expansion to include 303(d) listed waters. EPA should drop that proposal. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section G 

7.e.ii: Section H 

Comment ID 0145-A2.001.014 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

• Alternatives analysis - EPA's proposal to require states to perform an alternatives analysis when determining if 

lowering high water quality is necessary opens the door to litigation and undermines state primacy, especially in 

conjunction with EPA's proposed expansion to include 303(d) listed waters. EPA should drop that proposal. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section G 

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7.e.ii: Section H 

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Comment ID 0153-A2.001.010 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

D. The proposed alternatives analysis disrupts a state's flexibility in maintaining high quality waters. 

EPA proposes to add paragraph (b)(2) to section 131.12 to provide that states will only make a finding that lowering a 

high quality water is "necessary," pursuant to paragraph (a)(2), after conducting an alternatives analysis to determine 

whether any "practicable" alternative has the potential to minimize the degradation associated with the proposed 

activity. (78 Fed. Reg. 54544, col. 3.) The preamble states that "practicable" means "that the alternatives considered 

must be available for the proposed activity, technologically possible, able to be done or put into practice successfully at 

the site in question, and economically viable." (Id., 54528, col. 3.) 

As the preamble points out, currently, a state is not required to conduct an alternative's analysis yet doing so is often 

the way in which a state reaches a finding of necessity. (Id., 54528, col. 3.) While the State Water Board believes an 

alternatives analysis may often, in part, comprise a state's Tier 2 review, the proposed requirement to conduct an 

alternatives analysis in all cases is overly proscriptive and unnecessary. 

The State Water Board is also concerned that the lack of specificity in the general proposal to require states to conduct 

an alternatives analysis, and select one that is practicable, will unavoidably create significant exposure to litigation for 

case law to ultimately settle: the interpretation of the definition for "practicable," the quantum of evidence necessary for 

an alternative to be deemed "practicable," the extent with which a state must support its determination of 

"impracticable," whether the alternatives analysis need be exhaustive or whether it is subject to a "reasonableness" 

standard, the interpretation of the phrase "minimally degraded," etc. These and similar issues have loomed large in 

litigation for decades under the California Environmental Quality Act's similar requirement for an alternatives analysis, 

and would likely be repeated as a result of the proposed alternatives analysis here. Under current law, a state's Tier 2 

review and determination of necessity must be supported by the administrative record. The quantum of evidence 

necessary to support a state's decision is subject to judicial review in accordance with state law. The State Water Board 

recommends that states continue to have flexibility in the manner in which Tier 2 review is meaningfully conducted and 

that EPA's final rule not mandate a state to conduct an alternatives analysis. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section G 

7.e.ii: Section H 

7.e.ii: Section K 

7.e.ii: Section O 

7.e.ii: Section R 

7.i 

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Comment ID 0153-A2.001.012 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

The State Water Board's proposed revision to 131.12(b)(2): "The State [begin new text] 's administrative record must 

support any [end new text] [begin strikeout] will only make a [end strikeout] finding that lowering high water quality is 

necessary, pursuant to paragraph (a)(2) of this section [begin strikeout] , after concluding conducting an alternatives 

analysis that evaluates a range of no non-degrading and minimally degrading practicable alternatives that have the 

potential to prevent or minimize the degradation associated with the proposed activity. [end strikeout] If [begin strikeout] 

the State can identify [end strikeout] any [begin new text] nondegrading or minimally degrading [end new text] 

practicable alternatives [begin new text] to the proposed activity that do not have greater overall environmental impacts 

[end new text] are identified, the State must choose one of those alternatives to implement when authorizing a lowering 

of high water quality." 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section G 

7.e.ii: Section H 

7.e.ii: Section K 

7.e.ii: Section O 

7.e.ii: Section R 

Comment ID 0156-A1.001.011 

Author Name: Jackie Kepke Adam Link 

Organization: California Association of Sanitation Agencies and Tri-TAC 

Second, CASA and Tri-TAC oppose expanding the scope of the antidegradation analysis by mandating a complex new 

alternatives analysis (FR 54528, 40 CFR section 131.12(b)(2)). In California, an alternatives analysis is generally a 

component of an antidegradation analysis, even though as the Notice states, there is no explicit requirement to conduct 

one. However, it is best left to the discretion of the State as to how and whether to conduct such analysis, and the 

details should not be included as part of a prescriptive federal regulation. 

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7.e.ii 

Chapter 2 - Comment Documents Antidegradation 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii: Section E 

7.e.ii: Section G 

Comment ID 0157-A1.001.007 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

Antidegradation Methodology and Standard for Lowering Water Quality 

In conjunction with the expansion of the number of waterbodies that will be subject to high quality antidegradation 

review under EPA's proposal in Kentucky and other states that apply a waterbody-by-waterbody approach, EPA's 

proposed revisions on the procedures and standards for conducting antidegradation reviews would significantly 

increase the burden on states in conducting such reviews and the stringency of the criteria for allowing lower water 

quality. Specifically, EPA's proposal to mandate that states conduct "an alternatives analysis that evaluates a range of 

non-degrading and minimally degrading practicable alternatives that have the potential to prevent or minimize the 

degradation" under 40 CFR 131.12(b)(2) is an intrusion on a state's inherent flexibility to establish its own policies and 

procedures for antidegradation reviews. It also has no basis in "standards" established under the Clean Water Act. 

EPA's proposal goes even further and would require states to "choose" one of the non-degrading or minimally 

degrading alternatives before allowing any lowering of high quality water (which, as stated above, could include 

waterbodies that are actually impaired for one or more uses). 

The preamble to the regulation at 78 Fed. Reg. page 54529 illustrates the degree to which EPA, and any potential 

challenger to a project, would contend that such an alternatives analysis must be conducted and the level of proof 

required before lower water quality could be allowed. The preamble specifies that the alternative analysis could include 

"no discharge, pollution prevention measures, process changes, and reduction in the scale of the project." In effect, 

these alternatives go well beyond evaluation of whether more effective wastewater treatment technologies are 

technically and affordably available. States would effectively have to conduct a NEPA-like alternative review analysis 

and then potentially take the additional step of mandating project changes and/or business choices for the permittee 

unrelated to wastewater treatment technologies. At most, antidegradation review should involve state consideration of 

whether additional cost-effective and available wastewater treatment technologies exist that could reduce the mass 

and/or concentration of pollutants discharged for a project as proposed. States should not be in the business of 

directing industries as to how to manufacture products or whether such products may even be permissibly produced as 

a part of an antidegradation review. It is doubtful NPDES Permit writers have the expertise to make such manufacturing 

alternative determinations and such decisions would readily be subject to challenge. 

Similarly, although the term "practicable alternative" would not be defined in the actual regulation, the preamble 

indicates the term means that "the alternatives considered must be available for the proposed activity, technologically 

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possible, able to be done or put into practice successfully at the site in question, and economically viable." 78 Fed. Reg. 

at 54528. Such an analysis could effectively require states to conduct a type of best available technology economically 

achievable analysis for every pollutant discharged for a project to high quality water (not just pollutants of concern as in 

a technology-based BPJ analysis under 40 CFR 125.3). It is also unclear what the standard would be for an 

"economically viable alternative." Would an economically "viable" alternative include not proceeding with the project? 

With respect to wastewater treatment technologies, an economically "viable" technology could be construed as one that 

could be implemented even if it precluded the company from making any reasonable profit on a venture. To the extent 

EPA proceeds with the regulation, the Chamber requests the term "practicable" be defined as a wastewater treatment 

technology that is proven to be effective and implementable at the facility at a reasonable cost in light of the project 

purpose. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section D 

7.e.ii: Section E 

7.e.ii: Section F 

7.e.ii: Section G 

7.e.ii: Section H 

7.e.ii: Section I 

7.e.ii: Section K 

7.e.ii: Section O 

Comment ID 0158-A1.001.018 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

EPA proposes to amend the Water Quality Standards Rule at §131.12(b)(2) to state: 

"The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this 

section, after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading 

practicable alternatives that have the potential to prevent or minimize the degradation associated with the proposed 

activity. If the State can identify any practicable alternatives, the State must choose one of those alternatives to 

implement when authorizing a lowering of high water quality. (emphasis added)" 

KDOW agrees alternatives to eliminate and minimize water quality impacts to Tier 2 waters are appropriate and agrees 

an "alternatives analysis" is a key component of antidegradation implementation. However, KDOW has a number of 

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concerns regarding this proposed language. First, the enabling provision of the CWA at §303(c) requires only that, for 

waters that equal or exceed the quality necessary to meet designated uses, a water quality standard for such waters 

may be revised only if such revision is consistent with "the antidegradation policy established under" §303(c). That 

policy is set out at 40 CFR § 131.12 and requires only that (1) existing uses be protected, and (2) before the State may 

authorize a discharge that will lower water quality, an "alternatives analysis" must be conducted. By its proposed 

language EPA is ranging far afield of policy and well into implementation – EPA's language seeks to dictate to States 

how an alternatives analysis shall be conducted, and which alternative States shall choose. It is not in EPA's purview to 

review implementation of standards; the Act does not provide EPA authority to prescribe how States will implement their 

water quality standards. The proposed language goes well beyond consideration of wastewater options or no-discharge 

considerations. The proposed language would result in States making business and process decisions for an applicant. 

It should not be the State's burden to perform an alternatives analysis on a potentially unlimited number of scenarios. 

KDOW is concerned the final rule language will prohibit States' consideration of cost-effectiveness as a factor in the 

alternative selection when reviewing antidegradation alternatives analyses. While there may be situations where a lessdegrading treatment technology or other alternative may exist for a proposed discharge, States must be able to 

determine whether additional water quality benefit is sufficient to justify the additional expense or whether pursuing 

more holistic approaches would lead to as great or greater water quality improvements. 

Specifically, EPA's proposal to mandate that states conduct "an alternatives analysis that evaluates a range of nondegrading and minimally degrading practicable alternatives that have the potential to prevent or minimize the 

degradation" under §131.12(b)(2) intrudes on the States' flexibility to establish their own policies and procedures for 

antidegradation reviews. EPA authority to mandate implementation also has no basis in "standards" established under 

§303(c) of the Act. Nevertheless, EPA's proposal goes even further to require states to "choose" one of the nondegrading or minimally degrading alternatives before allowing any lowering of high quality water. Typically, the applicant 

for a discharge permit conducts the alternatives analysis and presents the analysis and data to the State, including the 

selection of the proposed alternative. The State then reviews the analysis and the proposed alternative and either 

approves the analysis and alternative selection or finds the analysis and conclusion deficient. 

The proposed §131.12(b)(2) creates a situation that establishes a seemingly unattainable standard of review for States, 

thus providing potential litigants a very low bar for challenges to State permitting decisions. The preamble [78 FR 

54529] specifies that the alternatives analysis could include "no discharge, pollution prevention measures, process 

changes, and reduction in the scale of the project." The alternatives outlined in the preamble go well beyond evaluation 

of whether more effective wastewater options are technically and affordably available. As such, a potential challenger to 

a proposed permit may successfully contend that nearly any alternative should be considered, and as the standard of 

review of such considerations is not well defined the proposed addition to the regulation creates an uncertain decision 

process for States. 

Similarly, the term 'practicable' as used in §131.12(b)(2), is ambiguous and has the potential to lead to excessive 

litigation. "Practicable alternative" is not defined in the proposed regulation. However, EPA indicates in the preamble [78 

FR 54528] that the term means "the alternatives considered must be available for the proposed activity, technologically 

possible, able to be done or put into practice successfully at the site in question, and economically viable." This view of 

"practicable alternative" also goes well beyond consideration of wastewater options to considerations most States are 

not equipped or authorized to make and beyond the intent of the Act. Likewise, it is not clear what would be the 

standard for an "economically viable alternative." As proposed, §131.12(b)(2) places the onus on States to conduct the 

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alternatives analysis as well as the selection of alternatives, while the ambiguities in terms of "practicable alternative" 

and "economically viable" put an ever greater resource demand on States to conduct Tier II reviews and present a low 

bar for anyone opposing a permit to challenge a State's Tier II determination. The proposal would engender even more 

involvement of EPA in State decision-making regarding wastewater planning, infrastructure, etc. 

KDOW believes antidegradation review appropriately includes consideration by the State of whether alternate 

wastewater options that will limit the lowering of water quality are available to the permit applicant, are affordable, and 

have been appropriately considered for the proposed discharge. States do not have the expertise or resources to make 

such determinations on the potentially unlimited number of scenarios, nor has EPA taken any of this resource demand 

on states into consideration in its cost/benefits analysis. Again, the applicant for a discharge permit, not the State, 

typically conducts the alternatives analysis and presents the analysis and data to the State, including the selection of 

the proposed alternative. The State then reviews the analysis and the proposed alternative and either approve the 

analysis and alternative selection or find the analysis and conclusion deficient. To place the onus of the alternatives 

analysis and alternative selection on States not only creates considerable resource demands on States, it puts States in 

the position of making policy, local development, and resources decisions that many States, Kentucky included, may 

not be authorized to make, or which are otherwise not advisable. In practice, most States review the alternatives 

analyses submitted by the applicants who seek permits to discharge to Tier 2 waters. Additionally, some States, such 

as Kentucky, have processes that sequence the components of an alternatives analysis that may be constrained by the 

current proposed language. 

KDOW suggests that)(2) be stricken in its entirety as EPA is not authorized to mandate how water quality standards are 

implemented. 

[begin strikeout] "(2) The State will only make a finding that lowering high water quality is necessary, pursuant to 

paragraph (a)(2) of this section, after conducting an alternatives analysis that evaluates a range of non-degrading and 

minimally degrading practicable alternatives that have the potential to prevent or minimize the degradation associated 

with the proposed activity.If the State can identify any practicable alternatives, the State must choose one of those 

alternatives to implement when authorizing a lowering of high water quality." [end strikeout] 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section A 

7.e.ii: Section D 

7.e.ii: Section E 

7.e.ii: Section G 

7.e.ii: Section H 

7.e.ii: Section J 

7.e.ii: Section K 

7.e.ii: Section O 

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Comment ID 0161-A2.001.005 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

4. Section §131.12(b)(2) states "The State will only make a finding that lowering high water quality is necessary, 

pursuant to paragraph (a)(2) of this section, after conducting an alternatives analysis that evaluates a range of nondegrading and minimally degrading practicable alternatives that have the potential to prevent or minimize the 

degradation associated with the proposed activity. If the State can identify any-practicable alternatives, the State must 

choose one of those alternatives to implement when authorizing a lowering of high water quality." 

• We question who is supposed to "conduct" the alternatives analysis? Our EPA-approved state Antidegradation 

Implementation Procedure does not include the state conducting alternatives analyses. That is completed by the 

facilities or their representatives. The State ensures these analyses are conducted and then approves or disapproves 

the selected alternative. The language could also be construed to require the state to implement the alternative. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section D 

Comment ID 0165-A2.001.010 

Author Name: Gunderson Steven 

Organization: Colorado Department of Public Health and Environment 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

9. Antidegradation Implementation - Alternatives Analysis 

Colorado generally supports the proposed revisions to 131.12(b)(2). The following refinements make it clear that the 

state does not necessarily conduct the alternatives analysis itself and that the state has discretion regarding the types 

of alternatives that need to be evaluated and the extent of analysis needed to support the finding: 

(2) The State will only make a finding that lowering high water quality is necessary pursuant to paragraph (a)(2) of this 

section, after [begin strikeout] conducting [end strikeout] an alternatives analysis [begin new text] has been conducted 

[end new text] that evaluates a range of [begin strikeout] non-degrading and minimally [end strike] [begin new text] less 

[end new text] degrading [begin strikeout] practicable [end strikeout] [begin new text] reasonable [end new text] 

alternatives that have the potential to prevent or minimize degradation associated with the proposed activity.[begin 

strikeout] If the State can identify any practicable alternative, the State must choose one of those alternatives to 

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implement when authorizing a lowering of high water quality. [end strikeout] [begin new text] The State may authorize a 

lowering of water quality through implementation of an identified less degrading reasonable alternative.[end new text] 

Colorado specifically suggests that the rule be modified to remove the term "practicable" from the description of 

alternatives that must be evaluated. The term practicable is used elsewhere in the Clean Water Act Framework and is 

not appropriate in this context. Colorado has been making sound judgments regarding the reasonableness of 

antidegradation alternatives for many years, and has at times eliminated an alternative based on a qualitative 

assessment of the cost. States should continue to be allowed broad discretion in determining that degradation is 

"necessary". 

Colorado suggests the following revision to the preamble to the rule: 

For these purposes, the term "[begin strikeout] practicable [end strikeout] [begin new text] reasonable [end new text]" 

means that the alternatives considered must be available for the proposed activity, technologically possible, able to be 

done or put into practice successfully at the site in question, and economically [begin strikeout] viable [end strikeout] 

[begin new text] reasonable.[end new text] 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section D 

7.e.ii: Section O 

Comment ID 0166-A2.001.018 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

EPA proposes to amend the Water Quality Standards Rule at §131.12(b)(2) to state: 

"The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this 

section, after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading 

practicable alternatives that have the potential to prevent or minimize the degradation associated with the proposed 

activity. If the State can identify any practicable alternatives, the State must choose one of those alternatives to 

implement when authorizing a lowering of high water quality. (emphasis added)" 

KDOW agrees alternatives to eliminate and minimize water quality impacts to Tier 2 waters are appropriate and agrees 

an "alternatives analysis" is a key component of antidegradation implementation. However, KDOW has a number of 

concerns regarding this proposed language. First, the enabling provision of the CWA at §303(c) requires only that, for 

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waters that equal or exceed the quality necessary to meet designated uses, a water quality standard for such waters 

may be revised only if such revision is consistent with "the antidegradation policy established under" §303(c). That 

policy is set out at 40 CFR § 131.12 and requires only that (1) existing uses be protected, and (2) before the State may 

authorize a discharge that will lower water quality, an "alternatives analysis" must be conducted. By its proposed 

language EPA is ranging far afield of policy and well into implementation – EPA's language seeks to dictate to States 

how an alternatives analysis shall be conducted, and which alternative States shall choose. It is not in EPA's purview to 

review implementation of standards; the Act does not provide EPA authority to prescribe how States will implement their 

water quality standards. The proposed language goes well beyond consideration of wastewater options or no-discharge 

considerations. The proposed language would result in States making business and process decisions for an applicant. 

It should not be the State's burden to perform an alternatives analysis on a potentially unlimited number of scenarios. 

KDOW is concerned the final rule language will prohibit States' consideration of cost-effectiveness as a factor in the 

alternative selection when reviewing antidegradation alternatives analyses. While there may be situations where a lessdegrading treatment technology or other alternative may exist for a proposed discharge, States must be able to 

determine whether additional water quality benefit is sufficient to justify the additional expense or whether pursuing 

more holistic approaches would lead to as great or greater water quality improvements. 

Specifically, EPA's proposal to mandate that states conduct "an alternatives analysis that evaluates a range of nondegrading and minimally degrading practicable alternatives that have the potential to prevent or minimize the 

degradation" under §131.12(b)(2) intrudes on the States' flexibility to establish their own policies and procedures for 

antidegradation reviews. EPA authority to mandate implementation also has no basis in "standards" established under 

§303(c) of the Act. Nevertheless, EPA's proposal goes even further to require states to "choose" one of the nondegrading or minimally degrading alternatives before allowing any lowering of high quality water. Typically, the applicant 

for a discharge permit conducts the alternatives analysis and presents the analysis and data to the State, including the 

selection of the proposed alternative. The State then reviews the analysis and the proposed alternative and either 

approves the analysis and alternative selection or finds the analysis and conclusion deficient. 

The proposed §131.12(b)(2) creates a situation that establishes a seemingly unattainable standard of review for States, 

thus providing potential litigants a very low bar for challenges to State permitting decisions. The preamble [78 FR 

54529] specifies that the alternatives analysis could include "no discharge, pollution prevention measures, process 

changes, and reduction in the scale of the project." The alternatives outlined in the preamble go well beyond evaluation 

of whether more effective wastewater options are technically and affordably available. As such, a potential challenger to 

a proposed permit may successfully contend that nearly any alternative should be considered, and as the standard of 

review of such considerations is not well defined the proposed addition to the regulation creates an uncertain decision 

process for States. 

Similarly, the term 'practicable' as used in §131.12(b)(2), is ambiguous and has the potential to lead to excessive 

litigation. "Practicable alternative" is not defined in the proposed regulation. However, EPA indicates in the preamble [78 

FR 54528] that the term means "the alternatives considered must be available for the proposed activity, technologically 

possible, able to be done or put into practice successfully at the site in question, and economically viable." This view of 

"practicable alternative" also goes well beyond consideration of wastewater options to considerations most States are 

not equipped or authorized to make and beyond the intent of the Act. Likewise, it is not clear what would be the 

standard for an "economically viable alternative." As proposed, §131.12(b)(2) places the onus on States to conduct the 

alternatives analysis as well as the selection of alternatives, while the ambiguities in terms of "practicable alternative" 

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and "economically viable" put an ever greater resource demand on States to conduct Tier II reviews and present a low 

bar for anyone opposing a permit to challenge a State's Tier II determination. The proposal would engender even more 

involvement of EPA in State decision-making regarding wastewater planning, infrastructure, etc. 

KDOW believes antidegradation review appropriately includes consideration by the State of whether alternate 

wastewater options that will limit the lowering of water quality are available to the permit applicant, are affordable, and 

have been appropriately considered for the proposed discharge. States do not have the expertise or resources to make 

such determinations on the potentially unlimited number of scenarios, nor has EPA taken any of this resource demand 

on states into consideration in its cost/benefits analysis. Again, the applicant for a discharge permit, not the State, 

typically conducts the alternatives analysis and presents the analysis and data to the State, including the selection of 

the proposed alternative. The State then reviews the analysis and the proposed alternative and either approve the 

analysis and alternative selection or find the analysis and conclusion deficient. To place the onus of the alternatives 

analysis and alternative selection on States not only creates considerable resource demands on States, it puts States in 

the position of making policy, local development, and resources decisions that many States, Kentucky included, may 

not be authorized to make, or which are otherwise not advisable. In practice, most States review the alternatives 

analyses submitted by the applicants who seek permits to discharge to Tier 2 waters. Additionally, some States, such 

as Kentucky, have processes that sequence the components of an alternatives analysis that may be constrained by the 

current proposed language. 

KDOW suggests that)(2) be stricken in its entirety as EPA is not authorized to mandate how water quality standards are 

implemented. 

[begin strikeout] "(2) The State will only make a finding that lowering high water quality is necessary, pursuant to 

paragraph (a)(2) of this section, after conducting an alternatives analysis that evaluates a range of non-degrading and 

minimally degrading practicable alternatives that have the potential to prevent or minimize the degradation associated 

with the proposed activity.If the State can identify any practicable alternatives, the State must choose one of those 

alternatives to implement when authorizing a lowering of high water quality." [end strikeout] 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section A 

7.e.ii: Section D 

7.e.ii: Section E 

7.e.ii: Section G 

7.e.ii: Section H 

7.e.ii: Section J 

7.e.ii: Section K 

7.e.ii: Section O 

Comment ID 0167-A1.001.010 

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Author Name: Anderson Paul 

Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District 

ii. Part 2 - Alternatives Analysis 

The District requests further clarification of that portion of EPA's review on p. 54528, third column, regarding the term 

"practicable". Specifically, the District would like further clarification of what EPA means by a "practicable" alternative 

being "economically viable". The District proposes that if a minimally-degrading alternative exists, it must also be one 

which can be implemented at a reasonable cost to the regulated entity in light of that entity's finances or without 

otherwise causing a substantial hardship to that entity or its customers. Colorado's antidegradation rules include an 

alternatives analysis component which takes into account the economic reasonableness of the alternative. Colorado 

Water Quality Control Commission Regulation No. 31, The Basic Standards and Methodologies for Surface Water (5 

CCR 1002-31), Section 31.8(3)(d)(iii), pp. 20-21. The District does not agree that an alternative which otherwise meets 

the other factors for being "practicable" must be implemented if it cannot be done at a reasonable cost and/or would 

cause a significant hardship. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section J 

7.e.ii: Section O 

Comment ID 0169-A1.001.004 

Author Name: Letient Henri 

Organization: Teck Alaska Incorporated 

• EPA Should Remove the Alternatives Analysis From the Proposed Regulations. The other main component of EPA's 

antidegradation proposal (as set out in proposed 40 CFR 131.12(b)(2), 70 Fed. Reg. 54544, and the Preamble, Section 

III(E)(2), 70 Fed. Reg. 54528) concerns the alternatives analysis, and this issue raises the most concerns for Teck. The 

nature of the alternatives analysis described in the proposed rule, as supplemented by the proposed preamble-including 

evaluating and selecting "practicable" possible reductions in the scale of a proposed project-significantly and 

impermissibly expands EPA's role in setting an "antidegradation policy" under the Clean Water Act. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

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Comment ID 0169-A1.001.006 

Author Name: Letient Henri 

Organization: Teck Alaska Incorporated 

• Not only is EPA's proposed requirement that states look at a facility's "upstream" operations unauthorized, but it also 

is unwise. Asking a state's environmental regulatory agency to evaluate alternatives to a proposed project would take 

the agency's staff well outside of their area of expertise. For instance, large-scale mining projects are highly dependent 

on economies of scale. In Alaska and other remote areas, hard-rock mines will only be profitable if operated on a large 

scale-otherwise, companies are unlikely to recover their initial capital investment and make sometimes low-grade 

deposits economically viable to mine. Teck strongly believes the types of economic and feasibility analyses that drive 

resource development projects should not be subject to second-guessing by environmental regulators who simply do 

not have the expertise to properly evaluate them. Existing environmental laws, such as NEPA and the LEDPA analysis 

required under Section 404 of the Act, already require extensive vetting of alternatives. As evidenced by these statutes, 

Congress knows how to communicate to agencies when it wants them to undertake alternatives analyses; the absence 

of explicit language in the Act endorsing an alternatives analysis for antidegradation strongly suggests that Congress 

did not intend for EPA to engage in alternatives analysis in the context of NPDES permits. 

• As Teck has laid out above, the proposed alternatives analysis should be removed from the proposed rule because it 

is both unauthorized by the Clean Water Act and imprudent to implement. If states desire to implement such initiatives 

at their own behest, they should be free to do so, but should not be compelled to do so by EPA. This would be 

consistent with and further Congress' clearly-stated policy to "recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan the development and use 

(including restoration, preservation, and enhancement) of land and water resources .... " 33 U.S.C. § 1251(b 

• In the Alternative, EPA Should Give States the Discretion to Select Their Alternatives Analysis Methods. As discussed 

above, Teck strongly believes that EPA should remove the antidegradation alternative requirement from the regulation. 

However, if EPA chooses to retain some form of an alternatives analysis requirement in its regulations, it must clarify 

that states should have discretion in how they use the alternatives analysis, including flexibility based on the relative 

significance and magnitude of the proposed "lowered water quality" as suggested in the rule proposal. See 78 Fed. 

Reg. 54259. Teck believes the concept set forth in Appendix E of the Great Lakes regulations is more sensible. Those 

regulations say, in effect, that states should use the alternatives analysis and other information to inform the decision on 

whether the lowering of water quality is "necessary." Under no set of circumstances should states be required to select 

an alternative, whether the standard be based on "practicability" or other considerations. Teck is very concerned that 

EPA's proposal will introduce significant uncertainty into the permitting process and, ultimately, lead to litigation 

between applicants, regulators, and third parties. In short, Teck strongly believes the alternatives information should be 

viewed as a source of information to guide agency decision-making but that there should not be a substantive obligation 

on the part of the permitting agency. 

Response 

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For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section D 

7.e.ii: Section E 

7.e.ii: Section G 

7.e.ii: Section L 

Comment ID 0170-A1.001.012 

Author Name: Faggert Pamela 

Organization: Dominion Resources Services, Inc. 

Second, the proposed regulatory changes would require states to conduct an alternatives analysis when proposing to 

lower high-quality water. In the proposed regulatory changes if a practicable alternative exists to minimize degradation 

associated with an activity, the State must choose that alternative based on specific criteria in the rule. Decisions 

regarding project review and water quality designations should be left up to the States and alternatives analysis is 

beyond the requirements of the CWA. We request that requirements for alternatives analysis should be removed from 

the regulation. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

Comment ID 0172-A2.001.006 

Author Name: Foster Tad 

Organization: Tad S. Foster Attorney at Law on behalf of three small municipal dischargers 

EPA proposes at §131.12(a)(2) performing an alternatives analysis of "practicable alternatives." While some would seek 

a definition of "practicable," it is better to have this concept in the regulation than not at all. For many dischargers, it is 

not practicable to go to reverse osmosis to remove the miniscule concentrations that will increase and cause the review. 

The cost of preparing such an alternative should not be imposed on the discharger performing that alternatives 

analysis. But it has been done. This is another misallocation of resources. "Practical" is defined as "obtained through 

practice." In an initiating regulatory process, little has been done "through practice." Yet most regulators know what is 

anticipated. EPA and states should provide guidance on what is not practical. 

Response 

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For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section O 

Comment ID 0175-A1.001.020 

Author Name: Canton Steven 

Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. 

Part two of this section, 131.12(b)(2), would require the states and tribes to conduct "an alternatives analysis that 

evaluates a range of non-degrading and minimally degrading practicable alternatives that have the potential to prevent 

or minimize the degradation associated with the proposed activity. If the State can identify any-practicable alternatives, 

the State must choose one of those alternatives to implement when authorizing a lowering of high water quality." 

g. Under the current rule, states consider alternatives prior to lowering WQS. The proposed rule would only allow states 

and tribes to consider approving discharges that lower water quality after an extensive alternatives analysis is 

conducted that includes all "practicable" treatment, including evaluation of NPS and BMPs in the watershed unrelated to 

any specific discharge. Such a requirement has several problems. First, it suggests that all alternatives would have to 

be considered for EPA to approve the change. Second the nature and amount of information required will cause delays 

and substantial additional expenses for the states, tribes, and the regulated community. Third, the preamble defines 

"practicable" as technologically possible, able to be put into practice at the site in question, and economically viable. It 

would be more appropriate to replace ‘possible' with ‘feasible'. The preamble lists many alternatives that can be 

considered, but while some of these are always ‘possible' often they are not feasible. Fourth, the inclusion of NPS 

controls exceeds EPA's statutory authority under the CWA. 

h. The preamble also suggests that, when evaluating alternatives, the states and tribes should consider "impacts 

beyond the direct effects on water quality, such as cross-media impacts" giving the example of impacts on land due to 

land application. This mandate exceeds EPA's CWA-granted authority. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section F 

7.e.ii: Section K 

7.e.ii: Section O 

7.e.iv 

Comment ID 0177-A2.001.007 

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Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

b) Alternatives Analysis. EPA proposes adding a requirement that states may only find the lowering of water quality 

necessary after first conducting an alternatives analysis. NYSDEC is concerned that changes to 131.12(b)(2) would 

require alternatives analyses for all activities affecting Tier 2 waters. 

In theory, any activity in the watershed of a Tier 2 water body has some potential to degrade water quality, however, in 

many cases, the impacts of these activities will be insignificant. Performing alternatives analyses for activities with 

insignificant impacts would strain limited state resources. Therefore, we recommend that the federal regulation only 

require alternatives analysis for those activities that have the potential for significant changes in water quality. We also 

want to be certain that the final rule language allows states, when reviewing antidegradation alternatives analyses, to 

consider cost-effectiveness as an important factor in the alternative selection. While there may be situations where a 

less-degrading treatment technology or other alternative may exist for a proposed discharge, it may provide less 

additional water quality benefit for the additional expense than would pursuing more holistic approaches to water quality 

improvements. That is, resources could be spent to achieve a marginally better quality effluent at a single discharge 

point or to install nonpoint source controls throughout the watershed to achieve an overall water quality improvement. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section I 

7.e.ii: Section J 

7.e.ii: Section R 

7.i 

Comment ID 0178-A2.001.007 

Author Name: Burnell Barry 

Organization: Idaho Department of Environmental Quality 

While we agree that degradation must be justified as necessary and important, we do not believe that this analysis must 

be done by the authorizing state or tribe. Most likely it will be an analysis performed by the discharger, and reviewed by 

the state or tribe. Similarly the choice of alternative will be made by the discharger, subject to state or tribal review. 

Please see ACWA's letter for specific changes they suggest to clarify this. 

Response 

For response to this comment, see the following response essay(s): 

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7.e.ii 

7.e.ii: Section D 

Comment ID 0180-A2.001.005 

Author Name: Hobson Chris 

Organization: Southern Company 

B. Alternatives Analysis 

EPA's Proposal contains a new requirement for states to conduct an "alternatives analysis" as part of the 

antidegradation review, and obligates states to reject a project that is the subject of such review if there is a "nondegrading or minimally degrading practicable alternative." Proposed 40 CFR §131.12(b)(2). This would turn a state's 

antidegradation review into a NEPA-like process. And every such review would be susceptible to challenge on grounds 

that a state did not consider all of the alternatives or did not consider some of the alternatives in sufficient detail. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section H 

7.e.ii: Section I 

7.e.ii: Section K 

Comment ID 0180-A2.001.007 

Author Name: Hobson Chris 

Organization: Southern Company 

This issue has been heavily litigated in some states, such as Georgia. In those cases, it is well established that the 

intent behind any evaluation of alternatives is to determine whether a non-discharging option is viable. This is 

commonly done by looking at land-application of wastewater, recycle and reuse options or the possibility of converting 

from a direct to indirect discharge. 

EPA's Proposal would take this evaluation one step further, effectively requiring a permit applicant to demonstrate, not 

just that there are no non-discharging options, but also that the least degrading alternative has been selected. To do so, 

an applicant would essentially have to demonstrate that its level of treatment is the highest level technologically and 

economically achievable, thus converting antidegradation review into a form of New Source Performance Standard 

(NSPS) assessment. We do not believe that this is appropriate. First, it superimposes a technology-based analysis on 

what is fundamentally a water quality-based issue. 

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Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

7.e.ii: Section P 

7.e.iv 

Comment ID 0180-A2.001.010 

Author Name: Hobson Chris 

Organization: Southern Company 

Finally, the way in which EPA defines "practicable" for purposes of its proposed alternatives analysis is different than, 

and inconsistent with, the definition of the same term in other EPA regulations. In the Proposal, EPA says that 

"practicable" means that the alternative is "technologically possible, able to be done or put into practice successfully at 

the site in question, and economically viable." 78 Fed. Reg. at 54528 col. 3. By contrast, in the wetlands context, EPA 

defines "practicable" to mean "available and capable of being done after taking into consideration cost, existing 

technology, and logistics in light of overall project purposes." 40 CFR §230.3(q) (emphasis added). At a minimum, EPA 

needs to add "in light of overall project purposes" to its definition in the federal water quality standards regulation, since 

these purposes are critical to a meaningful analysis of alternatives. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section O 

Comment ID 0186-A1.001.008 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

• API recognizes that EPA's proposed antidegradation alternatives analysis language at 40 CFR 131.12(b)(2) is 

consistent with past EPA policies. However, EPA should not promote the use of its March 1995 Interim Economic 

Guidance for Water Quality Standards as a basis for determining whether an individual WQS variance has widespread 

"social and economic impact" until such time as the Guidance is revised to make it workable. 

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Chapter 2 - Comment Documents Antidegradation 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii: Section J 

Comment ID 0186-A1.001.024 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

Part 2: Alternatives Analysis (78 Fed. Reg. 54527-54528) 

API recognizes that EPA's proposed antidegradation alternatives analysis language at 40 CFR 131.12(b)(2) is 

consistent with past EPA policies. However, API is concerned that the proposed codification of this language 

constitutes a confirmation of certain EPA guidance on alternatives evaluation that will make many projects not viable. 

The proposed alternatives analysis language is consistent with EPA guidance for antidegradation review. However, 

EPA's historic guidance on both economic viability of effluent management alternatives and socio-economic justification 

for lowering of high water quality, coupled with low thresholds of significance for defining high water quality, may make 

many projects that have important positive economic benefits and in some cases, environmental benefits, not viable for 

implementation. 

For example, the proposal states that: 

"Even if a state or tribe conducts an alternatives analysis, the regulation does not specify that, where there is a 

practicable alternative, the state or tribe must select an alternative for implementation. For these purposes, the term 

"practicable" means that the alternatives considered must be available for the proposed activity, technologically 

possible, able to be done or put into practice successfully at the site in question, and economically viable." 

(78 Fed. Reg. 54528) 

The best example of the difficulty of selecting and implementing a "practicable" alternative is for an increase in an 

inorganic constituent of an effluent, such as sulfate. Petroleum refineries nationwide have installed flue gas 

desulfurization systems to reduce sulfur emissions to air. These systems substantially increase the effluent sulfate and 

total dissolved solids (TDS) concentrations in refinery effluents. Also, when a refinery increases its crude petroleum 

throughput the effluent mass loading of salts such as chloride increases because these are contaminants in the crude 

oil. Similarly when a POTW must increase its effluent flow to account for population increases, the loadings of TDS, 

chlorides and sulfates will increase. 

There are technologically "possible" alternatives for controlling such inorganic constituents in an effluent; for example, 

by use of demineralization treatment processes such as reverse osmosis. However, the technical practicality of such 

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treatment processes being applied to a petroleum refinery or POTW effluent is questionable given that they generate 

significant high salt residuals that still require disposal and will typically require installation of substantial tertiary effluent 

treatment upstream of the desalination step in order to operate successfully. The term "economically viable" in this 

quote is also problematic because there is no corresponding guidance on what constitutes viability. The financial impact 

analysis guidance that EPA has historically recommended (see EPA, March 1995, Interim Economic Guidance for 

Water Quality Standards, Workbook, EPA-823-8-95-002, Office of Water), if strictly followed, makes it practically 

impossible for a major industrial firm to demonstrate that virtually any type of effluent treatment alternative is not 

"economically viable." This is because EPA's financial analysis essentially looks at whether a corporation as a whole, 

rather than a specific facility, can afford to implement the alternative. No corporation will implement pollution control 

alternatives for a new project that does not have an economic benefit (i.e., is profitable) at the specific facility that is 

being considered. 

States should have discretion in selecting their Tier 2 alternatives analysis methods, including flexibility based on the 

relative significance and magnitude of the proposed "lowered water quality" as suggested in the rule proposal (78 Fed. 

Reg. 54259). The proposed language at 40 CFR 131.12(b) is acceptable, provided that states are given discretion in 

defining what constitutes "practicable" alternatives that will result in non-degradation or minimal lowering of water 

quality. The proposed language that states that if "any" practicable alternatives are identified, one must be chosen will 

almost certainly be problematic, if "practicable" means technologically possible and economic viability is judged using 

EPA's March 1995 guidance. Because the term "practicable" has different meanings to different audiences, the 

proposed requirement at 40 CFR 131.12(b)(2) that states "must" choose one of any "practicable" alternatives identified 

during the Tier 2 alternatives evaluation process is unworkable and must be changed in the absence of a definition of 

how the term practicable is to be assessed. 

The proposed WQS clarifications of Tier 2 antidegradation policy should include a provision requiring states to define 

the term "practicable" as it is used in the alternatives evaluation. The definition of practicable should include evaluation 

of non-water quality impacts of each alternative to be evaluated. 

As stated in the preceding comment, EPA's statement in the proposal that "practicable" alternatives should be 

"technologically possible, able to be done or put into practice successfully at the site in question, and economically 

viable" are an inadequate basis for the Tier 2 evaluation. First, nowhere in the CWA is the term "technologically 

possible" used as a basis for setting effluent limits The concept of using only "demonstrated" technology, which is the 

highest level of effluent control required by the CWA, is established by the statutory requirement for best available 

demonstrated control technology (BADCT) (aka new source performance standards, NSPS) for new industrial sources 

[CWA Section 306(a)(1)]. 

EPA defines NSPS as follows: 

"New Source Performance Standards (NSPS) is defined at Section 306 of the CWA. New Source Performance 

Standards (NSPS) reflect effluent reductions that are achievable based on the best available demonstrated control 

technology. New sources have the opportunity to install the best and most efficient production processes and 

wastewater treatment technologies. As a result, NSPS should represent the most stringent controls attainable through 

the application of the best available demonstrated control technology for all pollutants (i.e., conventional, nonconventional, and priority pollutants). In establishing NSPS, EPA is directed to take into consideration the cost of 

achieving the effluent reduction and any non-water quality environmental impacts and energy requirements." 

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http://water.epa.gov/scitech/wastetech/guide/questions_index.cfm 

The term "demonstrated" technology is interpreted by EPA as having been installed and successfully operated at a 

facility in the applicable point source category or in another category with similar wastewater characteristics. In 

particular, the BADCT analysis looks at the cost-effectiveness of alternative control technologies when it makes its 

decisions on the required NSPS for a point source category. For example, EPA rejected granular activated carbon 

adsorption treatment as NSPS for petroleum refineries because of its "marginal benefits and uncertain effectiveness." 

(EPA, October 1982, Development Document for Effluent Limitations Guidelines and Standards for the Petroleum 

Refining Point Source Category, EPA 440/1-82/014, Effluent Guidelines Division, Washington, D.C.) 

An essential aspect of alternatives evaluation for Tier 2 antidegradation, which is not identified in EPA's description of 

"practicable" in the proposal, are non-water quality impacts of control alternatives. The evaluation of the non-water 

quality impacts of treatment alternatives is enshrined in the CWA for every level of effluent control prescribed in the Act 

[see CWA Section 304(b) and 306]. This consideration is essential because in many cases a technology that removes 

small amounts of wastewater constituents may generate significant non-water quality impacts associated with energy 

use, air emissions, and disposal of treatment residuals. 

Using the same example presented earlier in these comments, if an increase in effluent chloride concentrations due to 

a refinery expansion exceeds a de minimis threshold of significance and triggers a Tier 2 alternatives evaluation, the 

only technologically possible alternative would be some form of demineralization, likely reverse osmosis applied to 

some portion of the total effluent flow. Reverse osmosis won't function successfully on treated effluent (either refinery or 

municipal) without extensive pretreatment. Therefore, the alternative would typically include in addition to the reverse 

osmosis unit activated carbon adsorption and filtration. Not only would this installation have high capital and operating 

costs, it would require substantial electrical and thermal energy and would generate residual streams requiring disposal. 

In particular, the reverse osmosis reject stream that would contain the salts would have to be transported off-site for 

disposal or alternatively would have to be treated on site by crystallization so that the salts could be disposed of in a 

landfill. The non-water quality impacts would be substantial including in addition to disposal of the treatment residuals 

increased air emissions associated with regeneration of the carbon, electrical energy used for the treatment units, and 

thermal energy for evaporation of water if the crystallization process were used. 

Clearly, the simplistic description of practicable alternatives described in the proposal is inadequate and grossly 

understates the complexity of evaluating alternatives to prevent or limit lowering of existing water quality. The openended alternatives evaluation that is described in proposed 40 CFR 131.12(b)(2) will result, in some states, in long, 

drawn-out, and possibly inconclusive analyses of alternatives with the result that projects with substantial socioeconomic benefits for an area may be cancelled because the time required to complete an analysis that is satisfactory 

to all stakeholders will make the project uneconomical. API believes that EPA may be underestimating the potential that 

the antidegradation policy that is proposed in this rule can serve as a vehicle for some stakeholders to prevent projects 

with substantial benefits to a region's economy from being implemented simply by making the demonstration burden 

virtually impossible. 

API recommends that EPA add to the regulation that the evaluation of control alternatives should be based on the CWA 

factors used for best practicable control technology (BPT), best available technology economically achievable (BAT), 

and NSPS [see CWA Sections 304(b) and 306(a)]. These factors have been used by EPA since the CWA was adopted 

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by Congress to evaluate the cost-effectiveness of treatment and control technologies and are appropriate for the 

alternatives evaluation required for Tier 2 antidegradation. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section F 

7.e.ii: Section G 

7.e.ii: Section J 

7.e.ii: Section O 

Comment ID 0186-A1.001.034 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

2. The proposed WQS clarifications of Tier 2 antidegradation policy should include a provision requiring states to define 

the term "practicable" as it is used in the alternatives evaluation. The definition of practicable should include evaluation 

of non-water quality impacts of each alternative to be evaluated. 

3. EPA should not promote the use its March 1995 Interim Economic Guidance for Water Quality Standards as a basis 

for determining whether an individual WQS variance has widespread "social and economic impact" until such time as 

the Guidance is revised to make it workable. As it is currently written, the Guidance makes it impossible for any large 

industrial corporation with multiple plants to demonstrate that any level of effluent controls, including zero discharge, is 

economically infeasible, even if the cost is so great that a proposed project is unprofitable and would never be 

constructed. This comment applies to the determination of revised uses, the Tier 2 antidegradation alternatives review, 

and the WQS variance economic analysis described in the proposed revisions to Part 131. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section J 

7.e.ii: Section O 

Comment ID 0188-A2.001.005 

Author Name: Ehm William 

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Organization: Iowa Department of Natural Resources 

4. Section §131.12(b)(2) states "The State will only make a finding that lowering high water quality is necessary, 

pursuant to paragraph (a)(2) of this section, after conducting an alternatives analysis that evaluates a range of nondegrading and minimally degrading practicable alternatives that have the potential to prevent or minimize the 

degradation associated with the proposed activity. If the State can identify any-practicable alternatives, the State must 

choose one of those alternatives to implement when authorizing a lowering of high water quality." 

• We question who is supposed to "conduct" the alternatives analysis? Our EPA-approved state Antidegradation 

Implementation Procedure does not include the state conducting alternatives analyses. That is completed by the 

facilities or their representatives. The State ensures these analyses are conducted and then approves or disapproves 

the selected alternative. The language could also be construed to require the state to implement the alternative. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section D 

Comment ID 0196-A1.001.011 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

EPA's use of the term "ensure" is also troubling, as it invites litigation and even more confusion, this time over which 

alternatives the state evaluated, whether they are practicable, and the ultimate selection of the alternative. Pursuant to 

the principles of cooperative federalism underlying the CWA, states should be given authority to make these 

implementation decisions, and EPA should refrain from promulgating federal regulations concerning such issues. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section F 

7.e.ii: Section H 

3.a 

10.a 

Comment ID 0197-A1.001.013 

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Author Name: Garrison Naoh 

Organization: Natural Resources Defense Council 

Second, the Proposed Rule would amend 40 C.F.R. § 131.12(b)(2) to require that states and tribes conduct an 

alternatives analysis before making a determination that lowering water quality is necessary. (78 Fed. Reg. § 54,528.) 

However, the requirement will be ineffective as drafted. The Proposed Rule would require a state to evaluate a range of 

"non-degrading and minimally degrading practicable alternatives" and if a practicable alternative is identified to "choose 

one of those alternatives." But it does not define "minimally degrading," and would allow a state to choose such an 

approach even if it would cause degradation and even if a non-degrading (or less degrading) approach is available. In 

order to minimize the potential impacts to water bodies, EPA should revise the Proposed Rule such that section 

131.12(b)(2) requires a state to review, and where appropriate, choose the "least degrading" identified alternative. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section C 

7.e.iv 

Comment ID 0201-A1.001.020 

Author Name: Godfrey Mike 

Organization: Alabama Power 

Alternatives Analysis 

EPA has proposed to promulgate § 131.12(b)(2) to purportedly more clearly delineate the alternatives analysis States 

must undertake prior to lowering the water quality of any water body. Specifically, proposed § 131.12(b)(2) provides: 

The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this 

section, after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading 

practicable alternatives that have the potential to prevent or minimize the degradation associated with the proposed 

activity. If the State can identify any practicable alternatives, the State must choose one of those alternatives to 

implement when authorizing a lowering of high water quality. 

78 Fed. Reg. at 54,544. 

Alabama Power has a number of concerns with this proposed provision. First, it expands the scope of the review States 

must conduct before permitting lower water quality. For instance, EPA provides in the Draft Rule that it expects States 

to not only consider potential impacts to water quality in its alternatives analysis, but also potential impacts to land use 

and/or air quality. Evaluating these potential "cross-media" impacts will place a significant additional economic burden 

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on States each time they conduct one of these analyses and it is questionable whether the agency has the authority to 

require such analyses pursuant to its CWA authority. 

Certain terms must also be more clearly defined or explained, either in the regulations or the preamble to any final rule. 

For instance, how will "degradation", "non-degrading", and "minimally degrading" each be defined? Alabama Power 

supports a definition of "degradation" that is limited to describe only a permanent, material lowering of water quality as a 

result of a point source discharge. Similarly, what constitutes a "practicable" alternative must be more clearly defined by 

the agency. In the Draft Rule, EPA defines a practicable alternative as one that is "available for the proposed activity, 

technologically possible, able to be done or put into practice successfully at the site in question, and economically 

viable." 78 Fed. Reg. at 54,528. Against what standard will "available", "possible", or "viable" be objectively evaluated 

within this criterion? Alabama Power supports an evaluation of whether a particular alternative is available or 

technologically possible based on what is commonly achievable within the industry of the regulated entity. Economic 

viability should also be something more than an affordability analysis. Instead, some form of a proportionate costbenefit ratio should be employed so that States are not forced to undertake unnecessarily costly actions that produce 

nominal additional environmental benefit. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

7.e.ii: Section F 

7.e.ii: Section O 

12.a 

Comment ID 0202-A2.001.014 

Author Name: Frederick Kevin 

Organization: Wyoming Department of Environmental Quality/Water Quality Division 

Alternatives Analysis 

The EPA is proposing to add to 131.12(b)(2) the requirement that "The State will only make a finding that lowering high 

water quality is necessary, pursuant to paragraph (a)(2) of this section, after conducting an alternatives analysis that 

evaluates a range of non-degrading and minimally degrading practicable alternatives that have the potential to prevent 

or minimize the degradation associated within the proposed activity. If the State can identify any practicable 

alternatives, the State must choose one of those alternatives to implement when authorizing a lowering of high water 

quality." The WDEQ/WQD strongly opposes the proposed language as too restrictive and not providing states with 

sufficient flexibility in conducting antidegradation reviews for tier 2 waters. As such, the WDEQ/WQD recommends the 

EPA replace the words "will only" with "may" within the regulation and allow for entities other than the state to conduct 

the alternatives analysis by modifying the text to "after an alternatives analysis has been conducted." 

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As the EPA is aware, many states only require alternatives analyses after a preliminary evaluation identifies that the 

proposed activity will result in more than a minimal amount of degradation. As such, the WDEQ/WQD also recommends 

that the EPA make the regulation clear that an alternatives analysis may be necessary only after a state has determined 

that the proposed action will result in more than a minimal amount of degradation. As currently written, the regulation 

can be interpreted to require an alternatives analysis if there is any lowering of high water quality. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section D 

7.e.ii: Section G 

7.e.ii: Section R 

7.i 

Comment ID 0203-A1.001.014 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

B. Alternatives Analysis 

To decide that lower water quality is necessary in a Tier 2 water, the state would have to consider "alternatives." The 

state would have to analyze less degrading alternatives to the proposed activity and would have to consider crossmedia impacts, meaning land use and (we presume) air pollution. This would turn Tier 2 antidegradation analysis into a 

NEPA-like process. And every such analysis would raise issues, possibly in court, about whether the agency had 

looked thoroughly enough for all the "alternatives." 

EPA is not clear about how the decision process would work when the state considers alternatives. How does the 

"necessary to accommodate important economic or social development" standard, which is used to determine when 

lower water quality is justified, work with the analysis of alternatives? Does the state have to find the most protective 

alternative that would accommodate economic or social development? If there is a less degrading alternative but the 

state has no authority to require it, what is the state supposed to do? The proposal as written would create confusion, 

administrative burdens for the states, and another obstacle to states' ability to allow lower water quality in the interest of 

economic development. 

In addition, the way EPA defines "practicable" for its proposed alternatives analysis is different from, and inconsistent 

with, the definition of the same word in other EPA regulations. In this proposal EPA says that "practicable" means that 

the alternative is "technologically possible, able to be done or put into practice successfully at the site in question, and 

economically viable." 78 Fed. Reg. 54,528 col. 3. By contrast, in the wetlands context, EPA defines "practicable" to 

mean "available and capable of being done after taking into consideration cost, existing technology, and logistics in light 

of overall project purposes." 40 C.F.R. 230.3(q) (emphasis added). At a minimum EPA should add "in light of overall 

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project purposes" to the definition in the water quality standards rule, since these purposes are critical to a meaningful 

analysis of alternatives. 

Moreover, requiring states to consider alternatives gives EPA the power of approval or disapproval over new 

development. The preamble suggests that EPA will oversee how the state applies its antidegradation policy and can 

overrule a decision to allow degradation. If so, then this change would vastly broaden federal control over state 

antidegradation decisions (assuming federal oversight is lawful in the first instance), undercutting the states' 

management of their antidegradation programs. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

7.e.ii: Section H 

7.e.ii: Section I 

7.e.ii: Section J 

7.e.ii: Section K 

7.e.ii: Section O 

Comment ID 0205-A1.001.012 

Author Name: Burd Charlie 

Organization: Independent Oil and Gas Association of West Virginia Inc. 

With regard to the second proposed revision, the incorporation of a new alternatives analysis would create both (1) an 

avenue for legal challenges to the sufficiency of this analysis and (2) significant administrative burdens for states, while 

introducing yet another layer of federal oversight into the process. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section F 

7.e.ii: Section H 

Comment ID 0206-A1.001.012 

Author Name: Foster Kelly 

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Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

B. Alternatives Analysis (78 Fed. Reg. 54,528-9) 

The Proposed Rule would require an alternatives analysis that mandates states "consider a range of non-degrading and 

minimally degrading practicable alternatives" prior to allowing new or increased pollution. We do not believe this 

proposal is consistent with the existing antidegradation regulations. The current language prohibiting the lowering of 

water quality is quite plain and, if alternatives are available, the proposal is not necessary. See 40 C.F.R. §131.12(a)(2). 

Further, as proposed, the language is problematic because it requires states to consider both non-degrading and 

minimally degrading alternatives but, in turn, does not require a state to choose a non-degrading alternative or even the 

least degrading alternative. To the contrary, the proposed language appears to allow a state to choose any of the 

alternatives evaluated. Clearly, a minimally degrading alternative is going to lower water quality more than a nondegrading alternative, yet the Proposed Rule would allow a state to choose any of the practicable alternatives 

evaluated. 

We believe that the proposed language is inconsistent with existing antidegradation and CWA requirements, and should 

not be adopted. If EPA proceeds with adoption of the proposal, the language should be altered to make it consistent 

with existing antidegradation requirements and the CWA. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section C 

7.e.iv 

Comment ID 0207-A1.001.011 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

o Alternatives analysis - The mandate to perform an alternatives analysis opens the door to litigation, undermines state 

primacy, and will result in federal control over land use decisions. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section G 

7.e.ii: Section H 

7.e.ii: Section K 

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Comment ID 0207-A1.001.027 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

We also believe that the language of proposed § 131.12(b)(2) will unlawfully encroach on state authority and will 

engender litigation over land use alternatives. EPA is proposing regulatory language requiring a state antidegradation 

implementation method "ensure" the following: 

(2) The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this 

section, after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading 

practicable alternatives that have the potential to prevent or minimize the degradation associated with the proposed 

activity. If the State can identify any-practicable alternatives, the State must choose one of those alternatives to 

implement when authorizing a lowering of high water quality. 

The word "ensure" is an invitation for disapproval by EPA or a citizen suit by any person based on differing views 

regarding what alternatives are evaluated, what alternatives are practicable, and what alternatives are selected. Under 

the cooperative federalism structure of the CWA, these implementation decisions should be state determinations so 

federal regulation on these points is inappropriate. 

EPA has no authority to mandate an alternatives analysis. When EPA reviewed and approved Washington State's 

antidegradation provisions, EPA expressly declined to review the state regulation that asserted that: "The department 

retains the discretion to require that the applicant examine specific alternatives, or that additional information be 

provided to conduct the analysis." EPA stated that: 

EPA is not required to act on this provision because examining specific alternative or requiring additional information is 

the Washington Department of Ecology's discretion. It is not a water quality standard under Section 303(c) of the Clean 

Water [Act] because it is a supplementary requirement beyond what the CWA requires. Letter dated May 2, 2007, from 

Michael Gearheard, EPA Region 10, to David Peeler, Washington Department of Ecology (emphasis added) (attached). 

EPA suggests in the preamble of the proposed rule that the alternatives analysis contemplated in new § 131.12(b) is 

the same as the analysis required for the Great Lakes in Appendix E of 40 C.R.R. CFR Part 132. 78 Fed. Reg. at 

54529. There are two problems with this assertion. First, EPA has no authority over antidegradation implementation 

methods and cannot apply Appendix E of part 132 to dischargers outside of the Great Lakes. Second, EPA's proposed 

language is even broader than Appendix E and could encompass alternatives that are outside the control of a 

discharger rather than alternatives "available to the entity" seeking the permit. For example, the proposed language 

could be used to bootstrap authority over land use and even over nonpoint sources, as so-called "practicable 

alternatives."[FN3] The mere reference to a state antidegradation policy in § 303(d) of the CWA does not support such 

an expansion of federal authority. 

[FN3] Under current regulations, a State "shall assure that there will be achieved .... all cost-effective and reasonable 

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management practices for non-point source control. ́ 40 C.F.R. 131.12(a)(2). However, this language does not give 

EPA authority to require a State to establish controls on nonpoint sources. Such an interpretation would exceed the 

authority granted to EPA by Congress. See Memorandum from Tudor Davies to Water Management Division Directors, 

on Interpretation of Federal Antidegradation Requirement, Feb. 22, 1994. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

7.e.ii: Section G 

7.e.ii: Section H 

7.e.ii: Section K 

7.e.ii: Section L 

Comment ID 0208-A1.001.014 

Author Name: Foster Wade 

Organization: The Fertilizer Institute 

The proposed alternatives analysis is particularly onerous, essentially forcing states to perform a UAA when 

implementing State antidegradation provisions. The amendments mandate that the states must choose any practicable 

alternative that has the potential to prevent or minimize degradation associated with the proposed activity. This is a 

level of intrusive federal oversight that falls just short of outright federal assumption of the states' water quality programs 

and is contrary to the state/federal partnership concept that is the basis for cooperative federalism under the CWA. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

7.e.ii: Section F 

Comment ID 0212-A1.001.015 

Author Name: Norton Kelly 

Organization: Arizona Mining Association 

• Overlapping alternatives analyses in the context of Section 401 certifications of Section 404 permits: Where a state is 

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conducting a Section 401 certification of a Section 404 permit being issued by the Corps of Engineers, the AMA has a 

concern with overlap in any alternatives analysis required for Tier 2 antidegradation and the separate alternatives 

analysis required under 404(b)(1) guidelines and/or NEPA documentation for the underlying activity. There is a very real 

potential for there to be three separate forms of alternatives analysis conducted by three separate agencies (the state, 

the Corps, and the NEPA lead agency in cases where that agency is not the Corps) for the same project. Although 

there technically may be slight differences in the scope of the various analyses, in practice they are very likely to be end 

up being very similar. For example, the EPA preamble notion of "practicable" alternatives [FN3] is very close to the 

concept of practicability found in the 404(b)(1) guidelines at 40 C.F.R. § 230.10(a)(2). 

If the concept of an alternatives analysis is carried forward into the final rule as part of the required antidegradation 

review for Tier 2 waters, then the final rule should make clear that if there are other alternatives analyses conducted by 

other agencies for the same project, a state may rely on those analyses as the basis for some or all of the required 

antidegradation alternatives analysis for Tier 2 waters. 

[FN3] The preamble suggests that in order to be practicable, an alternative must be available, technologically possible, 

able to be done or put into practice successfully at the site, and economically viable. See 78 Fed. Reg. at 54528. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section I 

Comment ID 0215-A1.001.012 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

B. Alternatives Analysis (78 Fed. Reg. 54,528-9) 

The Proposed Rule would require an alternatives analysis that mandates states "consider a range of non-degrading and 

minimally degrading practicable alternatives" prior to allowing new or increased pollution." We do not believe this 

proposal is consistent with the existing antidegradation regulations. The current language prohibiting the lowering of 

water quality is quite plain and, if alternatives are available, the proposal is not necessary. See 40 C.F.R. §131.12(a)(2). 

Further, as proposed, the language is problematic because it requires states to consider both non-degrading and 

minimally degrading alternatives but, in turn, does not require a state to choose a non-degrading alternative or even the 

least degrading alternative. To the contrary, the proposed language appears to allow a state to choose any of the 

alternatives evaluated. Clearly, a minimally degrading alternative is going to lower water quality more than a nondegrading alternative, yet the Proposed Rule would allow a state to choose any of the practicable alternatives 

evaluated. 

We believe that the proposed language is inconsistent with existing antidegradation requirements and CWA 

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requirements, and should not be adopted. If EPA proceeds with adoption of the proposal, the language should be 

altered to make it consistent with existing antidegradation requirements and the CWA. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section C 

7.e.iv 

Comment ID 0217-A2.001.016 

Author Name: Hale Michelle 

Organization: Alaska Department of Environmental Conservation 

c. Alternatives analysis 

EPA should recognize that the level of detail required in an alternatives analysis should be commensurate with the level 

of risk posed by a discharge. For example, a small wastewater treatment system with a well understood waste stream 

should have the flexibility to perform a minimal alternatives analysis. 

The alternatives analysis may incorporate a range of practicable options, but should not require an evaluation of all 

possible options, particularly if options are not raised until after issuance of the initial permit. As long as the alternatives 

analysis meets the requirement of presenting a valid range of practicable alternatives, the review process should not be 

restarted if a new option is identified. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section K 

Comment ID 0218-A1.001.003 

Author Name: Elardo Pam 

Organization: King County Department of Natural Resources and Parks 

• Refrain from imposing specific requirements related to anti-degradation analysis on states already in compliance with 

these requirements 

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Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section P 

Comment ID 0218-A1.001.011 

Author Name: Elardo Pam 

Organization: King County Department of Natural Resources and Parks 

The EPA's proposal also articulates specific requirements for alternative analyses that would require a greater level of 

specificity than necessary. For example, setting in rule a definition for the term "practicable" in this context to mean 

"...the alternatives considered must be available for the proposed activity, technologically possible, able to be done or 

put in practice successfully at the site in questions, and economically viable" intrudes on states' discretion. While 

offering the example of approaches taken by the Great Lakes States to such terms is helpful, imposing those specific 

requirements is not warranted in states already implementing appropriate antidegradation analysis programs through 

their permit programs. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section G 

7.e.ii: Section L 

7.e.ii: Section O 

7.e.ii: Section P 

Comment ID 0219-A1.001.008 

Author Name: McNelly Jeff 

Organization: ARIPPA 

A. Alternatives Analysis 

This proposal reopens the considerable amount of work related to the development and implementation of 

antidegradation programs that the States and Tribes, by suggestion that the States and Tribes now have to do a new 

"alternative analysis". In addition, the proposed changes may cause considerable unwanted litigation at both the 

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Federal level and at the State-Tribe level (which has had litigation on these issues in the past). 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section F 

7.e.ii: Section H 

Comment ID 0220-A2.001.010 

Author Name: Anderson Paul 

Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District 

ii. Part 2 - Alternatives Analysis 

The District requests further clarification of that portion of EPA's review on p. 54528, third column, regarding the term 

"practicable". Specifically, the District would like further clarification of what EPA means by a "practicable" alternative 

being "economically viable". The District proposes that if a minimally-degrading alternative exists, it must also be one 

which can be implemented at a reasonable cost to the regulated entity in light of that entity's finances or without 

otherwise causing a substantial hardship to that entity or its customers. Colorado's antidegradation rules include an 

alternatives analysis component which takes into account the economic reasonableness of the alternative. Colorado 

Water Quality Control Commission Regulation No. 31, The Basic Standards and Methodologies for Surface Water (5 

CCR 1002-31), Section 31.8(3)(d)(iii), pp. 20-21. The District does not agree that an alternative which otherwise meets 

the other factors for being "practicable" must be implemented if it cannot be done at a reasonable cost and/or would 

cause a significant hardship. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section J 

7.e.ii: Section O 

Comment ID 0222-A1.001.015 

Author Name: Modeer David 

Organization: Western Urban Water Coalition 

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3. Proposed section 131.12(b)(2) states that if "the State [defined to include a tribe] can identify any-practicable 

alternatives, the State must choose one of those alternatives to implement when authorizing a lowering of high water 

quality." In other words, where there is "a practicable alternative, a state or tribe must select an alternative for 

implementation." It is unclear, however, exactly how such a mandate would apply in the case of a water supply project 

needing a section 401 certification and going through a separate NEPA process. How would this requirement fit with 

either the NEPA "purpose and need" statement of the project proponent or the independent NEPA alternatives 

analysis? 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section I 

Comment ID 0222-A1.001.018 

Author Name: Modeer David 

Organization: Western Urban Water Coalition 

4. EPA should recognize the difficulty of "approving or disapproving" the methods associated with an alternatives 

analysis, including any accompanying social/economic analysis, if it were to mandate EPA review of the state 

implementation methods. The states need local flexibility in fashioning these metrics given the myriad of situations they 

will face as a result of state statutory schemes, geographic and hydrologic differences, and local economic conditions. 

EPA should drop this requirement and retain flexibility for the states. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section G 

7.e.ii: Section Q 

7.f.i 

Comment ID 0223-A1.001.009 

Author Name: Lindekugel Buck 

Organization: Grassroots Attorney on behalf of Southeast Alaska Conservation Council 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

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SEACC believes the language proposed by EPA gives a state too much wiggle room to choose an alternative that 

would degrade water quality even when a non-degrading alternative is available. In addition, it allows a state to select 

an alternative that satisfies some undefined "minimally degrading" criteria even if a less degrading alternative is 

available. 

In the Preamble to the proposed rule, EPA "lists areas states' and tribes implementation measures would need to 

address, at a minimum." 78 FR at 54530. The proposed rule, however, does not incorporate all these minimum 

measures explicitly into § 131.12(a) or (b). As proposed, we found the regulation unclear whether (or when) States must 

perform both "a social and/or economic analysis" and the alternative analysis, as well as clarity as to what level of social 

and economic development could be used to justify degradation of high quality waters. We found the transparency and 

scope of the policies adopted for the Great Lakes Water Quality Initiative most helpful in formulation of our suggested 

changes to EPA's proposal. See 40 CFR Pt. 132, App. E, III & IV (2013). SEACC proposes the following changes to 

proposed amendment number 7 to §§ 131.12(a)(2) and (b) to address these concerns (new language in bold; removed 

language in strikethrough): 

§ 131.12 (a): (2) Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and 

wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after 

full satisfaction of the intergovernmental coordination and public participation provisions of the State's continuing 

planning process, that allowing lower water quality is necessary, [begin new text] and if necessary, whether the benefits 

of economic or social development unquestionably outweigh the costs of lower water quality [end new text] [begin 

strikeout] to accommodate important economic or social development [end strikeout] [begin new text] to the affected 

community or surrounding area [end new text] [begin strikeout] in the area in which [end strikeout] [begin new text] 

where [end new text] the waters are located. In allowing such degradation or lower water quality, the State shall assure 

water quality adequate to protect existing uses fully. Further, the State shall assure that there shall be achieved the 

highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and 

reasonable best management practices for nonpoint source control. 

§ 131.12 (b): (2) The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph 

(a)(2) of this section, after [begin strikeout] c [end strikeout] onducting an alternatives analysis that evaluates a range of 

non-degrading, [begin strikeout] and [end strikeout] minimally-degrading [begin new text], and least-degrading [end new 

text] practicable alternatives that have the potential to prevent or minimize the degradation associated with the 

proposed activity. If the State can identify any [begin new text] least-degrading [end new text] practicable alternatives 

that are [begin new text] less degrading than the applicant's proposal, [end new text] the State must choose one of 

those alternatives to implement [begin strikeout] when [end strikeout] [begin new text] before [end new text] authorizing 

a lowering of high water quality. [begin new text] If the State can identify practical alternatives less degrading than the 

applicant's proposal, the State must chose to implement the least degrading practical alternative before authorizing a 

lowering of high water quality. [end new text] 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

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7.e.ii: Section J 

7.e.ii: Section Q 

7.e.iv 

7.g.i 

7.g.ii 

7.g.iii 

Comment ID 0224-A1.001.011 

Author Name: Ternieden Claudio 

Organization: Water Environment Federation 

2. EPA Proposal––Part 2: Alternatives Analysis: 

EPA is proposing to add a paragraph to 40 CFR 131.12 that requires states/tribes to conduct an alternatives analysis 

that evaluates non-degrading and minimally degrading practicable alternatives to the activity as proposed. This 

proposal also requires that the state/tribe choose one of the practicable non-degrading or minimally degrading 

alternatives when authorizing a lowering of the quality of Tier 2 waters. 

WEF Comments: 

Tier 2 review entails determining: (1) whether allowing lower water quality is necessary to accomplish the proposed 

activity and (2) whether the proposed activity that will result in lower water quality will accommodate important economic 

or social development. EPA's guidance for Tier 2 review is found in Interim Economic Guidance for Water Quality 

Standards Workbook, EPA, March 1995 which does refer to alternatives analysis in Chapter 5, Section 5.1: 

Whatever approach, the discharger must demonstrate that the proposed project is the most appropriate means of 

meeting water quality standards and must document project cost estimates. If there is at least one of the treatment 

alternatives that allow the applicant to maintain high-quality water without incurring substantial impacts, then they have 

failed to show that the requirements would interfere with the development. 

The proposed rule revision would make the alternatives analysis more explicit, however WEF believes that the 1995 

guidance may still be useful in evaluating the alternatives to determine if the degrading alternative is necessary to 

accomplish the proposed activity. It should also be noted that the guidance puts the burden of the alternatives analysis 

on the discharger. 

In its proposal, EPA appears to define practicable alternatives as those being available for the proposed activity, 

technologically possible, feasible for the site in question, and economically viable. To ensure that this standard is 

applied, WEF recommends that EPA include a definition of practicable in the revisions to 40 CFR Part 131.12 and or 

131.3 (definitions). 

States and tribes may set the order of the review such that, if the degradation is not necessary (i.e., non-degrading or 

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minimally degrading alternative is practicable), then a social/economic evaluation would not be required. In this revision, 

EPA should also explicitly state that application of a minimally-degrading alternative would not trigger Tier 2 review. 

The proposed rule language is not clear how or when the "review" process would take place. Currently, states and 

tribes have very different practices for this review. Many states require "any" increased discharge to undergo an 

antidegradation analysis, resulting in a burdensome process every time. EPA should clarify that "Antidegradation" is a 

WQS issue, and is to be handled under the WQS program and not under the NPDES program. There is no direct 

relationship between the permit limit setting process and the anti-degradation policy. 

The NPDES regulations are written to use water quality criteria (numeric and narrative) to develop permit limits. Water 

quality criteria are developed to protect "designated" uses. NPDES regulations at 40 CFR 122.44(d) set the 

requirements permit writers are to follow to develop water quality-based effluent limits. The regulations include 

reasonable potential analysis and effluent limit derivation. The regulations do not include any provision where limits are 

based upon anti-degradation [FNi] . Antidegradation is a provision designed to protect the "existing" use. Especially 

when looking at Tier 2 identified waters. Less so with Tier 1 identified waters. It is not possible to compare existing use 

and designated use in the context of the NPDES permit. This comparison must be done as part of the water quality 

standards program. If the permit writer drafts a permit limit to protect the existing use each time a permit is issued, and 

the belief is that the existing use is a higher use than the designated use and requires a more stringent criteria to 

protect it, the permit writer is essentially changing the water quality criteria and the "use" of the waterbody. This change 

to the designated use and criteria would be done at the individual permit level without the required notice or as part of 

the triennial review or within the WQS program. WEF recommends that EPA clarify that antidegradation is a policy to be 

implemented by the WQS program. After it is determined the existing use has improved, a UAA would be conducted 

and the use formally changed to reflect the improvement. The criteria can then be changed if needed to protect this new 

(and recognized) existing use – following that process would bring the existing and designated use into alignment. 

[FNi] The following is the relevant regulation, and the highlighted are those portions addressing water quality criteria: (d) 

Water quality standards and State requirements: any requirements in addition to or more stringent than promulgated 

effluent limitations guidelines or standards under sections 301, 304, 306, 307, 318 and 405 of CWA necessary to: 

(1) Achieve water quality standards established under section 303 of the CWA, including State narrative criteria for 

water quality. 

(i) Limitations must control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic 

pollutants) which the Director determines are or may be discharged at a level which will cause, have the reasonable 

potential to cause, or contribute to an excursion above any State water quality standard, including State narrative 

criteria for water quality. 

ii) When determining whether a discharge causes, has the reasonable potential to cause, or contributes to an instream 

excursion above a narrative or numeric criteria within a State water quality standard, the permitting authority shall use 

procedures which account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant 

or pollutant parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole effluent 

toxicity), and where appropriate, the dilution of the effluent in the receiving water. 

(iii) When the permitting authority determines, using the procedures in paragraph (d)(1)(ii) of this section, that a 

discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above the allowable 

ambient concentration of a State numeric criteria within a State water quality standard for an individual pollutant, the 

permit must contain effluent limits for that pollutant. 

(iv) When the permitting authority determines, using the procedures in paragraph (d)(1)(ii) of this section, that a 

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discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above the numeric 

criterion for whole effluent toxicity, the permit must contain effluent limits for whole effluent toxicity. 

(v) Except as provided in this subparagraph, when the permitting authority determines, using the procedures in 

paragraph (d)(1)(ii) of this section, toxicity testing data, or other information, that a discharge causes, has the 

reasonable potential to cause, or contributes to an in-stream excursion above a narrative criterion within an applicable 

State water quality standard, the permit must contain effluent limits for whole effluent toxicity. Limits on whole effluent 

toxicity are not necessary where the permitting authority demonstrates in the fact sheet or statement of basis of the 

NPDES permit, using the procedures in paragraph (d)(1)(ii) of this section, that chemical-specific limits for the effluent 

are sufficient to attain and maintain applicable numeric and narrative State water quality standards. 

(vi) Where a State has not established a water quality criterion for a specific chemical pollutant that is present in an 

effluent at a concentration that causes, has the reasonable potential to cause, or contributes to an excursion above a 

narrative criterion within an applicable State water quality standard, the permitting authority must establish effluent limits 

using one or more of the following options: 

(A) Establish effluent limits using a calculated numeric water quality criterion for the pollutant which the permitting 

authority demonstrates will attain and maintain applicable narrative water quality criteria and will fully protect the 

designated use. Such a criterion may be derived using a proposed State criterion, or an explicit State policy or 

regulation interpreting its narrative water quality criterion, supplemented with other relevant information which may 

include: EPA's Water Quality Standards Handbook, October 1983, risk assessment data, exposure data, information 

about the pollutant from the Food and Drug Administration, and current EPA criteria documents; or 

(B) Establish effluent limits on a case-by-case basis, using EPA's water quality criteria, published under section 304(a) 

of the CWA, supplemented where necessary by other relevant information; or 

(C) Establish effluent limitations on an indicator parameter for the pollutant of concern, provided: 

(1) The permit identifies which pollutants are intended to be controlled by the use of the effluent limitation; 

(2) The fact sheet required by § 124.56 sets forth the basis for the limit, including a finding that compliance with the 

effluent limit on the indicator parameter will result in controls on the pollutant of concern which are sufficient to attain 

and maintain applicable water quality standards; 

(3) The permit requires all effluent and ambient monitoring necessary to show that during the term of the permit the limit 

on the indicator parameter continues to attain and maintain applicable water quality standards; and 

(4) The permit contains a reopener clause allowing the permitting authority to modify or revoke and reissue the permit if 

the limits on the indicator parameter no longer attain and maintain applicable water quality standards. 

(vii) When developing water quality-based effluent limits under this paragraph the permitting authority shall ensure that: 

(A) The level of water quality to be achieved by limits on point sources established under this paragraph is derived from, 

and complies with all applicable water quality standards; and 

(B) Effluent limits developed to protect a narrative water quality criterion, a numeric water quality criterion, or both, are 

consistent with the assumptions and requirements of any available wasteload allocation for the discharge prepared by 

the State and approved by EPA pursuant to 40 CFR 130.7. 

(2) Attain or maintain a specified water quality through water quality related effluent limits established under section 302 

of CWA; (3) Conform to the conditions to a State certification under section 401 of the CWA that meets the 

requirements of § 124.53 when EPA is the permitting authority. If a State certification is stayed by a court of competent 

jurisdiction or an appropriate State board or agency, EPA shall notify the State that the Agency will deem certification 

waived unless a finally effective State certification is received within sixty days from the date of the notice. If the State 

does not forward a finally effective certification within the sixty day period, EPA shall include conditions in the permit 

that may be necessary to meet EPA's obligation under section 301(b)(1)(C) of the CWA; 

(4) Conform to applicable water quality requirements under section 401(a)(2) of CWA when the discharge affects a 

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State other than the certifying State; 

(5) Incorporate any more stringent limitations, treatment standards, or schedule of compliance requirements established 

under Federal or State law or regulations in accordance with section 301(b)(1)(C) of CWA; 

(6) Ensure consistency with the requirements of a Water Quality Management plan approved by EPA under section 

208(b) of CWA; 

(7) Incorporate section 403(c) criteria under part 125, subpart M, for ocean discharges; 

(8) Incorporate alternative effluent limitations or standards where warranted by ‘‘fundamentally different factors,'' under 

40 CFR part 125, subpart D; (9) Incorporate any other appropriate requirements, conditions, or limitations (other than 

effluent limitations) into a new source permit to the extent allowed by the National Environmental Policy Act, 42 U.S.C. 

4321 et seq. and section 511 of the CWA, when EPA is the permit issuing authority. (See § 122.29(c)). 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section M 

7.e.ii: Section N 

7.e.ii: Section O 

7.e.ii: Section R 

7.i 

Comment ID 0226-A1.001.004 

Author Name: Jones Lewis 

Organization: King and Spalding LLP on behalf of Georgia Water Quality Stakeholders 

The Georgia Stakeholders object to the proposed clarification of the Water Quality Standards Rule as it relates to 

antidegradation review. See United States Environmental Protection Agency, Water Quality Standards Regulatory 

Clarifications; Proposed Rule, 78 Fed. Reg. 54518, 54528 (Sept. 4, 2013). The Georgia Water Quality Stakeholders 

recommend that the proposal to add a new paragraph (b)(2) to 40 C.F.R § 131.12 be rejected. 

The proposed new paragraph (b)(2) should be rejected because: 

• The proposed standard is too vague. It requires that a "less degrading" alternative be implemented, so long as one 

can be identified, but it does not identify the standard to be used to choose among less degrading alternatives; nor does 

it identify factors (such as cost) that may justify rejecting an alternative even though it is less degrading. 

• The proposed amendment exceeds EPA's authority and could conflict with specific provisions of the Clean Water Act, 

including Sections 301 and 303(c). The effect of the proposed amendment would be to create a new effluent standard 

to be applied plant-by-plant. This would render the uniform technology-based requirements developed by EPA pursuant 

to Section 301 almost entirely superfluous. The proposed amendment would thus bring the rule into conflict with these 

provisions in ways the existing policy does not. 

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These points are discussed below, after a discussion of the legal framework and background on the manner in which 

antidegradation review is conducted in Georgia. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

7.e.ii: Section H 

7.e.ii: Section J 

Comment ID 0226-A1.001.006 

Author Name: Jones Lewis 

Organization: King and Spalding LLP on behalf of Georgia Water Quality Stakeholders 

III. DESCRIPTION OF THE PROPOSED AMENDMENT 

The proposed new paragraph (b)(ii) would establish a new substantive decision standard for Tier 2 antidegradation 

review. Before determining that "it is necessary to authorize a lowering of water quality," States would first be required 

to conduct an "alternatives analysis" among "practicable alternatives that have the potential to prevent or minimize the 

degradation associated with the proposed activity." [FN3] The required review would include a full range of "costeffective pollution prevention alternatives and techniques," including but not limited to "no discharge, pollution 

prevention measures, process changes, reduction in the scale of the project, advanced or different treatment 

technologies, water recycling and reuse, land application, seasonal or controlled discharge options avoiding critical 

water quality periods, and alternative discharge locations." [FN4] The permit writer would then be required to select one 

of the "less degrading" alternatives identified through this analysis for implementation. [FN5] 

The rule does not state how the choice among alternatives would be made. It states only that the permit-writer would be 

required to "evaluate the alternatives in terms of the extent of degradation that would result" and then "consider[] the 

implications and technological and economic practicability of the alternatives more holistically ... to determine whether 

the lowering of water quality is necessary...." [FN6] 

IV. DISCUSSION 

A. The Proposed New Antidegradation Standard is Too Vague 

The proposed standard is too vague. The standard needs to be clear not only for permit writers, but also for reviewing 

courts. The proposal identifies the broad range of alternatives to be considered, but it does not identify the standard to 

be used to choose from among them. Nor does it identify the factors, such as cost, that may justify rejecting an 

alternative even if it is less degrading. 

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The notice suggests that a "holistic" analysis should be used to make the "required finding," [FN7] but it never explains 

precisely what finding is required. Under what circumstances can a State determine that it is "necessary" to authorize a 

lowering of water quality, if a less degrading alternative is available? Georgia's view is that the necessity determination 

should be focused on the general necessity for the project, and not on the necessity to establish any particular effluent 

limit. According to this view, it is "necessary to authorize a lowering of water quality," however small, whenever it is 

necessary to authorize a new or expanded discharge. If this view is rejected, and if the required finding is that it is 

"necessary" to authorize specific effluent limitations––as the proposed rule appears to assume––then the nature of the 

Tier 2 analysis changes entirely, and it is essential to define what it means to be "necessary." 

Black's Law Dictionary provides the following definition: 

Necessary. This word must be considered in the connection in which it is used, as it is a word susceptible of various 

meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, 

useful, appropriate, suitable, proper, or conducive to the end sought. It is an adjective expressing degrees, and may 

express mere convenience or that which is indispensable or an absolute physical necessity. [FN8] 

If EPA intends to require a finding that each specific effluent limitation is "necessary," it is imperative that it identify 

where, on the spectrum between "mere convenience" and "absolute physical necessity," it intends for the line to be 

drawn. It appears that EPA does not believe that "absolutely physical necessity" is required, as this would equate to 

requiring selection of the "least degrading alternative" in all cases, [FN9] but EPA has not identified the standard to be 

used in its stead. 

If EPA's intention is merely to require that the selected alternative be reasonable considering the balance of costs and 

benefits––and hence that the degree of degradation authorized by the permit be "reasonably necessary"––this should 

be stated clearly. If this is not what EPA intends, then this too should be stated clearly; and in that case, EPA should 

also explain how the standard it is proposing compares to other standards provided in the statute. 

A related problem is that it is meaningless to state that a "less degrading alternative" must be selected without 

identifying a baseline for comparison. It would be irrational always to require selection of an alternative that is less 

degrading than the applicant's proposal, if this is EPA's intention, as this would arbitrarily exclude the applicant's 

proposal from ever being selected––even in cases where it would represent the best balance of costs and benefits. 

Finally, the Georgia Stakeholders note that it is especially important to establish clear legal standards given the process 

that Georgia has established for reviewing permits. Georgia's process is unusual because it requires permit challenges 

to be decided by generalist Administrative Law Judges ("ALJs"), whose decisions become final agency action without 

any further review at the agency level. See O.C.G.A. § 12-2-2(c)(4). This is problematic because ALJs are not 

environmental specialists;[FN10] and yet they are required to render an "independent judgment" on all contested 

matters––including technical matters––"without according deference or presumption of correctness to [the permit 

writer's] decision." [FN11] This system works reasonably well when ALJs are provided clear legal standards to work 

with, but it breaks down completely when ALJs are provided vague legal standards such as the one EPA is proposing to 

adopt. 

[FN3] Water Quality Standards Regulatory Clarifications; Proposed Rule, 78 Fed. Reg. at 54528. 

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[FN4] Id. at 54529.
 

[FN5] Id. at 54528.
 

[FN6] Id. at 54529.
 

[FN7] Id.
 

[FN8] Black's Law Dictionary 1029 (West Publishing Co., 6th Ed. 1990).
 

[FN9] Water Quality Standards Regulatory Clarifications; Proposed Rule, 78 Fed. Reg. at 54529 (explaining that EPA is
 

not proposing to require selection of the least degrading alternative).
 

[FN10] ALJs carry an extremely heavy caseload consisting of appeals from at least 27 other state agencies. The ALJs
 

are employed by a separate State agency, the Georgia Office of State Administrative Hearings ("OSAH"). According to
 

statistics compiled by OSAH, its ALJs adjudicate at least three times more cases per judge than any other ALJs in the
 

United States.
 

[FN11] Longleaf Energy Associates, LLC v. Friends of Chattahoochee, Inc., 298 Ga. App. 753, 768 (Ga. Ct. App. 2009)
 

(emphasis added).
 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section F 

7.e.ii: Section G 

7.e.ii: Section H 

7.e.ii: Section J 

Comment ID 0226-A1.001.008 

Author Name: Jones Lewis 

Organization: King and Spalding LLP on behalf of Georgia Water Quality Stakeholders 

C. EPA Should Clarify that Antidegradation Review is Only Triggered by a "Significant" Lowering of Water Quality. 

Finally, the Georgia Stakeholders suggest that EPA clarify that antidegradation review is only triggered by a "significant" 

lowering of water quality. This is implicit in the rule, but one Georgia ALJ has held that any "significance threshold" 

established at the State level must be established by rule. The Georgia Stakeholders disagree. Because we understand 

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that EPA disagrees as well, [FN38] and that EPA has actually encouraged the use of significance thresholds, the 

Georgia Stakeholders suggest that EPA clarify its position. 

V. CONCLUSION 

The Georgia Stakeholders recommend that the proposed new paragraph (b)(2) to 40 C.F.R. § 131.12 not be adopted. 

The Georgia Stakeholders further submit that Georgia's antidegradation program is finally getting on track, after being 

affirmed by the Georgia Court of Appeals, but that this proposed amendment would completely derail it. For the reasons 

explained above, the Georgia Stakeholders contend that the proposed amendment is not only unwise, but also 

unauthorized. 

[FN38] If significance thresholds could only be established by rule, then the federal rule would have to be amended 

before any significance threshold could be established at the State level, whether by rule or otherwise. Given that EPA 

has already approved significance thresholds established by many States, that cannot be its position. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

7.e.ii: Section R 

7.i 

Comment ID 0229-A2.001.010 

Author Name: Tillison Naomi 

Organization: Bad River Band of Lake Superior Tribe of Chippewa Indians 

The proposed revisions to 40 CFR 131.12(b)(2) are vague, however, and as a result, subject to litigation if applied. For 

example, the definitions of alternatives or practicability and details on how the terms are implemented are absent from 

the proposed changes. EPA's narrative in part III.E.2. of the federal register notice (pages 54528- 54529) contains 

critical details that are missing from the proposed revisions to 40 CFR 131.12(b)(2) that could help address this 

vagueness. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section H 

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Comment ID 0230-A1.001.017 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

Alternatives Analysis (78 FR at 545289) 

Another proposed clarification relates to the requirement that alternatives be considered as part of determining whether 

it is "necessary" to lower water quality. It is unclear such clarification is needed because the plain meaning of 

"necessary" implies the need to consider alternatives. Having an alternative to doing something means it is not 

necessary to do it. 

Nonetheless, EPA has proposed requiring an alternatives analysis that requires a state to "consider a range of 

nondegrading and minimally degrading practicable alternatives" before allowing new or increased pollution. A problem 

here is the use of the term "minimally degrading," which might be construed to allow for a state to choose to lower water 

quality to a greater extent than necessary where lesspolluting options are available. Sometimes, there will be a range of 

discharge and treatment options some of which will be very degrading (e.g. no phosphorus removal) and some of which 

will be less so but far from minimally degrading (e.g. treating to achieve 0.3 mg/L TP). We are concerned that some 

states will decide that because all of the practicable alternatives are more than "minimally degrading," it can permit the 

worst of them. 

We propose that, if EPA believes it is necessary that the need to consider alternatives be clarified, the relevant 

language of proposed 131.12(b)(2) state "after conducting an alternatives analysis that evaluates a reasonable range of 

nondegrading, minimally degrading and less degrading practicable alternatives .. ." 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section K 

Comment ID 0231-A2.001.026 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

Specifically, EPA proposes minimum elements that must be included in States' antidegradation procedures. Aside from 

CWA s. 118 (pertaining to the Great Lakes), the CWA mentions antidegradation only once, in CWA s. 303(d)(4). The 

CWA provides no specifics as to what elements must be contained in a State's antidegradation procedures. 

Accordingly, there is no basis to require States to implement antidegradation in a particular way. Further, the proposed 

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language of s. 131.12(b)(1) could require States to conduct antidegradation reviews for impaired waters. And in 

proposed s. 131.12(b)(2), EPA errs because the agency has no authority to mandate an alternatives analysis. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

7.e.i 

Comment ID 0234-A2.001.007 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

We also are concerned about the language of proposed § 131.12(b)(2). EPA is proposing regulatory language requiring 

a State antidegradation implementation method "ensure" the following: 

(2) The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this 

section, after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading 

practicable alternatives that have the potential to- prevent or minimize the degradation associated with the proposed 

activity. If the State can identify any practicable alternatives, the State must choose one of those alternatives to 

implement when authorizing a lowering of high water quality. 

The words "ensure" and "must choose" could lead to litigation over differing views regarding what alternatives are 

evaluated, what alternatives are practicable, and what alternatives are selected. Under the cooperative federalism 

structure of the CWA, these implementation decisions should be State determinations, so federal regulation on these 

points is inappropriate. 

In fact, EPA has no authority to mandate an alternatives analysis. When EPA reviewed and approved Washington 

State's antidegradation provisions, EPA expressly declined to review the following state regulation: "The department 

retains the discretion to require that the applicant examine specific alternatives, or that additional information be 

provided to conduct the analysis." In doing so, EPA stated that: 

EPA is not required to act on this provision because examining specific alternative [sic] or requiring additional 

information is the Washington Department of Ecology's discretion. It is not a water quality standard under Section 

303(c) of the Clean Water [Act] because it is a supplementary requirement beyond what the CWA requires. Letter dated 

May 2, 2007, from Michael Gearheard, EPA Region 10, to David Peeler, Washington Department of Ecology (emphasis 

added) (attached). 

EPA suggests in the preamble of the proposed rule that the alternatives analysis contemplated in new § 131.12(b) is 

the same as the analysis required for the Great Lakes in Appendix E of 40 C.F.R. Part 132. 78 Fed. Reg. at 54529. 

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However, EPA cannot apply Appendix E of Part 132 to dischargers outside of the Great Lakes. Further, EPA's 

proposed language is even broader than Appendix E because it could encompass alternatives that are outside the 

control of a discharger rather than alternatives "available to the entity" seeking the permit and requires a State to 

choose a practicable alternative even if a State determines under § 131.12(a)(2) that lowering water quality is 

necessary to accommodate important economic or social development. [FN2] 

[FN2] According to the preamble, "the term 'practicable' means that the alternatives considered must be available for 

the proposed activity, technologically possible, able to be done or put into practice successfully at the site in question, 

and economically viable." 78 Fed. Reg. at 54528. This is narrower than the consideration of "important economic or 

social development" under § 131.12(a)(2). 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

7.e.ii: Section G 

7.e.ii: Section H 

7.e.ii: Section J 

7.e.ii: Section L 

7.e.ii: Section O 

Comment ID 0240-A2.001.021 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

Part two of this section, 131.12(b)(2), would require the states and tribes to conduct "an alternatives analysis that 

evaluates a range of non-degrading and minimally degrading practicable alternatives that have the potential to prevent 

or minimize the degradation associated with the proposed activity. If the State can identify any practicable alternatives, 

the State must choose one of those alternatives to implement when authorizing a lowering of high water quality." 

g. Under the current rule, states consider alternatives prior to lowering WQS. The proposed rule would only allow states 

and tribes to consider approving discharges that lower water quality after an extensive alternatives analysis is 

conducted that includes all "practicable" treatment, including evaluation of NPS and BMPs in the watershed unrelated to 

any specific discharge. Such a requirement has several problems. First, it suggests that all alternatives would have to 

be considered for EPA to approve the change. Second the nature and amount of information required will cause delays 

and substantial additional expenses for the states, tribes, and the regulated community. Third, the preamble defines 

"practicable" as technologically possible, able to be put into practice at the site in question, and economically viable. It 

would be more appropriate to replace 'possible' with 'feasible'. The preamble lists many alternatives that can be 

considered, but while some of these are always 'possible' often they are not feasible. Fourth, the inclusion of NPS 

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controls exceeds EPA's statutory authority under the CWA. 

h. The preamble also suggests that, when evaluating alternatives, the states and tribes should consider "impacts 

beyond the direct effects on water quality, such as cross-media impacts" giving the example of impacts on land due to 

land application. This mandate exceeds EPA's CWA-granted authority. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section F 

7.e.ii: Section K 

7.e.ii: Section O 

7.e.iv 

Comment ID 0243-A2.001.009 

Author Name: Daniels Zane 

Organization: Ohio Coal Association 

Under the Proposed Rule, for high-quality ("Tier 2") waters, a lowering of water quality will only be acceptable after 

conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading practicable 

alternatives. 78 Fed. Reg. 54528. While Ohio already requires consideration of both a non-degradation alternative and 

a minimal degradation alternative in addition to an applicant's preferred alternative, the Proposed Rule appears to 

require that the less-degrading alternative be selected if it is "practicable". See Ohio Adm.Code 3745-1-05; 78 Fed. 

Reg. 54528. "Practicable," for USEPA's purposes, means that the alternative considered is "available for the proposed 

activity, technologically possible, able to be done or put into practice successfully at the site in question, and 

economically viable." 78 Fed. Reg. 54528. This requirement stands in sharp contrast to the local control and flexibility 

already codified in the CWA and related regulations. The Proposed Rule also injects the vague "practicability" standard, 

exposing Ohio Coal's members, as well as other businesses that are the lifeblood of the United States, to a crippling 

lack of regulatory certainty. The "practicable" standard appears to be so broad that many degradation alternatives, even 

if meeting the vague "economically viable" standard, may not be profitable enough to undertake the project, thus 

harming Ohio Coal's members, the many Ohioans they employ, and the domestic energy market that relies on the 

electricity produced by burning Ohio coal. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section H 

7.e.ii: Section I 

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7.e.ii: Section O 

7.e.iv 

Comment ID 0248-A2.001.011 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

Second, we believe that requiring (i) an alternatives analysis in federal water quality regulations as a mandatory step 

before allowing the lowering of a water quality designation, and (ii) that states adopt any "practicable alternative" other 

than a less stringent designated use, imposes unwarranted constraints on the exercise of state discretion in the 

administration of programs to which primacy has been delegated to the states under the Act. These provisions create 

new, and sometimes duplicative requirements, which can be burdensome and unnecessary. Moreover, as drafted, the 

proposed language is an invitation to costly and resource-consuming litigation against states and/or EPA based on 

policy disagreements over what constitutes a "practicable alternative." "Practicable alternatives" can be construed to 

include a range of policy options beyond the reach of EPA's authority under the CWA, such as land use changes or 

other state public policies. Indeed, proposed paragraph §131.12(b)(2) refers directly to paragraph § 131.12(a)(2), which 

explicitly requires states to pursue "all cost-effective and reasonable best management practices for non-point source 

control." Requiring states to consider and perhaps even adopt non-point source control measures before a state may 

conclude that lowering a designated use is necessary would wreak considerable havoc on state implementation of 

water quality standards, an important administrative function already strained to the limit by budgetary limits and cuts at 

the state level. We urge EPA to delete this provision. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section F 

7.e.ii: Section G 

7.e.ii: Section H 

7.e.ii: Section K 

Comment ID 0250-A2.001.005 

Author Name: Batterton Carol 

Organization: Water Environment Association of Texas, Texas Association of Clean Water Agencies, and Texas Water 

Conservation Association 

Similarly, the requirement for a detailed, EPA-directed alternatives analysis unnecessarily interferes with the primacy of 

the states with respect to the establishment of water quality standards. As proposed, the acceptability of a lowering of 

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water quality would be based on the lack of availability of a "practical" alternative. This can lead to extensive, 

expensive, and repetitive studies because of differing opinions regarding whether all possible alternatives have been 

evaluated and whether any of them meet the definition of "practical'. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section F 

7.e.ii: Section G 

7.e.ii: Section K 

12.a 

Comment ID 0252-A2.001.027 

Author Name: Fry Eric 

Organization: Peabody Energy 

Specifically, EPA proposes minimum elements that must be included in States' antidegradation procedures. Aside from 

CWA s. 118 (pertaining to the Great Lakes), the CWA mentions antidegradation only once, in CWA s. 303(d)(4). The 

CWA provides no specifics as to what elements must be contained in a State's antidegradation procedures. 

Accordingly, there is no basis to require States to implement antidegradation in a particular way. Further, the proposed 

language of s. 131.12(b)(1) could require States to conduct antidegradation reviews for impaired waters. And in 

proposed s. 131.12(b)(2), EPA errs because the agency has no authority to mandate an alternatives analysis. [FN4] 

[FN4] Preamble language advocates for States/Tribes to consider "impacts beyond the direct effects on water quality, 

such as cross-media impacts (e.g., impacts on land due to land application...)" when evaluating alternatives. This 

appears to be outside the scope of the CWA. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

7.e.ii: Section H 

7.e.ii: Section R 

7.e.i 

Comment ID 0256-A2.001.011 

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Author Name: Shepherd Hal 

Organization: The Center for Water Advocacy 

B. Alternatives Analysis 

CWA supports EPA's proposal to clarify that a Tier 2 review explicitly requires an alternative analysis. The language 

proposed by EPA falls short of this objective, however, because it gives a state wiggle room to choose an alternative 

that would degrade water quality even when a non-degrading alternative is available. In addition, it allows a state to 

select an alternative that satisfies some undefined "minimally degrading" criteria even if a less degrading alternative is 

available. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section C 

Comment ID 0257-A1.001.009 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

4. Antidegradation Methodology and Standard for Lowering Water Quality 

In conjunction with the expansion of the number of waterbodies that will be subject to high quality antidegradation 

review under EPA's proposal in Kentucky and other states that apply a waterbody-by-waterbody approach, EPA's 

proposed revisions on the procedures and standards for conducting antidegradation reviews would significantly 

increase the burden on states in conducting such reviews and the stringency of the criteria for allowing lower water 

quality. Specifically, EPA's proposal to mandate that states conduct "an alternatives analysis that evaluates a range of 

non-degrading and minimally degrading practicable alternatives that have the potential to prevent or minimize the 

degradation" under 40 CFR 131.12(b)(2) is an intrusion on a state's inherent flexibility to establish its own policies and 

procedures for antidegradation reviews. It also has no basis in "standards" established under the Clean Water Act. 

EPA's proposal goes even further and would require states to "choose" one of the non-degrading or minimally 

degrading alternatives before allowing any lowering of high quality water (which, as stated above, could include 

waterbodies that are actually impaired for one or more uses). 

The preamble to the regulation at 78 Fed. Reg. page 54529 illustrates the degree to which EPA, and any potential 

challenger to a project, would contend that such an alternatives analysis must be conducted and the level of proof 

required before lower water quality could be allowed. The preamble specifies that the alternative analysis could include 

"no discharge, pollution prevention measures, process changes, and reduction in the scale of the project." In effect, 

these alternatives go well beyond evaluation of whether more effective wastewater treatment technologies are 

technically and affordably available. States would effectively have to conduct a NEPA-like alternative review analysis 

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and then potentially take the additional step of mandating project changes and/or business choices for the permittee 

unrelated to wastewater treatment technologies. At most, antidegradation review should involve state consideration of 

whether additional cost-effective and available wastewater treatment technologies exist that could reduce the mass 

and/or concentration of pollutants discharged for a project as proposed. States should not be in the business of 

directing industries as to how to manufacture products or whether such products may even be permissibly produced as 

a part of an antidegradation review. It is doubtful NPDES Permit writers have the expertise to make such manufacturing 

alternative determinations and such decisions would readily be subject to challenge. 

Similarly, although the term "practicable alternative" would not be defined in the actual regulation, the preamble 

indicates the term means that "the alternatives considered must be available for the proposed activity, technologically 

possible, able to be done or put into practice successfully at the site in question, and economically viable." 78 Fed. Reg. 

at 54528. Such an analysis could effectively require states to conduct a type of best available technology economically 

achievable analysis for every pollutant discharged for a project to high quality water (not just pollutants of concern as in 

a technology-based BPJ analysis under 40 CFR 125.3). It is also unclear what the standard would be for an 

"economically viable alternative." Would an economically "viable" alternative include not proceeding with the project? 

With respect to wastewater treatment technologies, an economically "viable" technology could be construed as one that 

could be implemented even if it precluded the company from making any reasonable profit on a venture. To the extent 

EPA proceeds with the regulation, the Chamber requests the term "practicable" be defined as a wastewater treatment 

technology that is proven to be effective and implementable at the facility at a reasonable cost in light of the project 

purpose. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section D 

7.e.ii: Section E 

7.e.ii: Section F 

7.e.ii: Section G 

7.e.ii: Section H 

7.e.ii: Section I 

7.e.ii: Section K 

7.e.ii: Section O 

Comment ID 0263-A2.001.010 

Author Name: Gretchen Watkins Larry Wawronowicz 

Organization: Lac du Flambeau Band of Lake Superior Tribe of Chippewa Indians 

The proposed revisions to 40 CFR 131.12(b)(2) are vague, and as a result, subject to litigation if applied. For example, 

the definitions of alternatives or practicability and details on how the terms are implemented are absent from the 

proposed changes. EPA's narrative in part III.E.2. of the federal register notice (pages 54528- 54529) contains critical 

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details that are missing from the proposed revisions to 40 CFR 131.12(b)(2). 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section H 

7.e.ii: Section O 

Comment ID 0264-A2.001.015 

Author Name: Chard-McClary Shellie 

Organization: Association of Clean Water Administrators 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

4) Considerations for analysis of alternatives 

ACWA understands that the concept of an "alternatives analysis" is a key component of antidegradation 

implementation, and appreciates the proposed rule's language to clarify expectations with regard to an antidegradation 

alternatives analysis (as broadly defined to include no discharge alternatives, not just a range of treatment 

technologies). However, we are concerned that the proposed language may not clearly communicate EPA's intent. 

We agree that alternatives to eliminate and minimize water quality impacts to Tier 2 waters are appropriate. However, 

the proposed language, as written, may be interpreted too narrowly, restricting the states' ability to effectively and 

efficiently satisfy this requirement. For example, the proposed language has the state "conducting" an alternatives 

analysis when in practice, most states review the alternatives analyses submitted by the applicants who seek permits to 

impact Tier 2 waters. Additionally, states may have processes that sequence the components of an alternatives 

analysis that may be constrained by the current proposal. The language below helps clarify EPA's intent and allows 

states necessary flexibility needed for efficient and effective implementation of the rule. 

ACWA also wants to be certain that the final rule language allows states, when reviewing antidegradation alternatives 

analyses, to consider cost-effectiveness as an important factor in the alternative selection. Requiring a discharger to 

expend funds up to or near the thresholds expressed in EPA's Interim Economic Guidance for Water Quality Standards 

for a minor improvement in surface water quality is a concerning policy. While there may be situations in which a lessdegrading treatment technology or other alternative exists for a proposed discharge, it may provide less additional water 

quality benefit for the additional expense than would pursuing more holistic approaches to water quality improvements. 

That is, resources could be spent to achieve a marginally better quality effluent at a single discharge point or to install 

nonpoint source controls throughout the watershed to achieve an overall water quality improvement. While we are not 

suggesting that EPA should mandate consideration of nonpoint source controls, EPA should also recognize that the 

level of detail and scope of alternatives considered should be commensurate with the level of risk posed by a discharge. 

For example, a small domestic wastewater facility that is not expected to have significant impacts on water quality 

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should have the flexibility to perform a minimal alternatives analysis. 

Suggested revision: 

§ 131.12(b)(2) The State [begin strikeout] will only [end strikeout] [begin new text] may [end new text] make a finding 

that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this section, after [begin 

strikeout]conducting [end strikeout] an [begin strikeout] alternatives [end strikeout] analysis [begin new text] has been 

conducted [end new text] that evaluates a range of non-degrading and [begin strikeout] minimally [end strikeout] [begin 

new text] less [end new text] degrading practicable alternatives that have the potential to prevent or minimize the 

degradation associated with the proposed activity. [begin strikeout] If the State can identify any [end strikeout] [begin 

new text] When [end new text] practicable alternatives [begin new text] are identified [end new text], [begin strikeout] the 

State must choose [end strikeout] one of those alternatives [begin new text] must be [end new text] [begin strikeout] to 

[end strikeout] implement [begin new text] ed [end new text] when authorizing a lowering of high water quality. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section D 

7.e.ii: Section F 

7.e.ii: Section J 

Comment ID 0269-A2.001.007 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

b) Alternatives Analysis. EPA proposes adding a requirement that states may only find the lowering of water quality 

necessary after first conducting an alternatives analysis. NYSDEC is concerned that changes to 131.12(b)(2) would 

require alternatives analyses for all activities affecting Tier 2 waters. 

In theory, any activity in the watershed of a Tier 2 water body has some potential to degrade water quality, however, in 

many cases, the impacts of these activities will be insignificant. Performing alternatives analyses for activities with 

insignificant impacts would strain limited state resources. Therefore, we recommend that the federal regulation only 

require alternatives analysis for those activities that have the potential for significant changes in water quality. We also 

want to be certain that the final rule language allows states, when reviewing antidegradation alternatives analyses, to 

consider cost-effectiveness as an important factor in the alternative selection. While there may be situations where a 

less-degrading treatment technology or other alternative may exist for a proposed discharge, it may provide less 

additional water quality benefit for the additional expense than would pursuing more holistic approaches to water quality 

improvements. That is, resources could be spent to achieve a marginally better quality effluent at a single discharge 

point or to install nonpoint source controls throughout the watershed to achieve an overall water quality improvement. 

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Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section J 

7.e.ii: Section R 

7.i 

Comment ID 0272-A2.001.016 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

B. The Alternatives Analysis, While Positive In Its Purpose, Will Not Achieve The Stated Goal. 

While the Water Protection Groups support tightening the requirements for deciding that "lowering water quality is 

necessary," 78 Fed. Reg. at 54,528, the language proposed by EPA will not achieve the goal because it leaves room for 

a state to choose an alternative that would lower water quality even when it's demonstrably not necessary. Instead of 

requiring the state to choose the least-degrading practicable alternative, it allows the state to choose any one of "a 

range of non-degrading and minimally degrading practicable alternatives." Proposed § 131.12(b)(2), 78 Fed. Reg. at 

54,544: 

The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this 

section, after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading 

practicable alternatives that have the potential to prevent or minimize the degradation associated with the proposed 

activity. If the State can identify any-practicable alternatives, the State must choose one of those alternatives to 

implement when authorizing a lowering of high water quality. 

This language allows the state to degrade waters even when a non-degrading alternative is available. Moreover, the 

language requires a state to evaluate only "non-degrading and minimally degrading" alternatives (without defining what 

is considered "minimally degrading") and allows the state to degrade if there are no alternatives that meet these 

descriptions. The proposed language in § 131.12(b)(2) allows a state to choose an alternative that it characterizes as 

"minimally degrading," yet there could be less degrading alternatives available. This language does not require the state 

to apply the non-degrading or least degrading alternative. If any option is any less degrading (up to and through nondegrading), then lowering water quality - possibly at all, certainly down to standards - is not "necessary." The current 

proposed language is not consistent with the antidegration requirements and goals of the statute. The Water Protection 

Groups urge EPA to revise this provision to ensure that states fully analyze non-degrading and least degrading options 

before determining that lowering water quality is necessary. 

Response 

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For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section C 

7.e.iv 

Comment ID 0278-A2.001.015 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

Alternatives Analysis 

EPA's proposal contains a new requirement for states to conduct an "alternatives analysis" as part of their 

antidegradation Tier 2 review, and obligates the states to reject a project that is the subject of such review if there is a 

"non-degrading or minimally degrading practicable alternative." For these purposes, EPA has defined "practicable" to 

mean that the alternative is "technologically possible, able to be done or put into practice successfully at the site in 

question, and economically viable." 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section I 

7.e.ii: Section O 

Comment ID 0278-A2.001.018 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

Finally, we note that EPA's definition of "practicable" for purposes of its proposed alternatives analysis is different than, 

and potentially inconsistent with, other definitions of the same term that EPA has used in other Clean Water Act rules. 

For example, in the wetlands context, EPA defines "practicable" to mean "available and capable of being done after 

taking into consideration cost, existing technology, and logistics in light of overall project purposes." 40 CFR §230.3(q) 

(emphasis added). At a minimum, we believe that EPA needs to add "in light of overall project purposes" at the end of 

its proposed definition of "practicable" in the standards proposal, since the overall purposes of a project need to be 

taken into account as part of an alternatives analysis under a state's antidegradation Tier 2 review (in other words, it 

would be inappropriate not to consider the overall purposes of a project when evaluating whether there are practicable 

alternatives). 

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Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section O 

Comment ID 0282-A2.001.008 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

In particular, the addition of new language in paragraph 131.12 (b) (2) is problematic because it appears to limit how the 

state can make a finding that lowering the water qualify is necessary after conducting an alternatives analysis and 

raises questions about how this will interpreted, who will conduct the analysis, and who will implement. These are 

issues that should be left to the individual state's discretion. Concerns include: 

• Washington standards already require that an alternatives analysis be done as part of the Tier II analysis, but we are 

not specific about which alternative must be used; this is evaluated on a case-specific basis. 

• The current federal proposed language has the state doing the alternative analysis, while our state-adopted language 

requires that the applicant provide this information. The state then reviews and evaluates the analysis along with the 

information provided to determine if the lowering of water quality is in the overriding public interest. 

• The statement that "if the state can identify any-practicable alternatives, the state must choose one of those 

alternatives..." is problematic, again because it is not the state that would be doing the analysis and then implementing 

the action, but the applicant. Without further definition of what constitutes "any practicable alternative" it is not clear 

whether cost effectiveness or feasibility could be considered and weighed against the environmental improvements that 

would be gained. For example, an identified alternative might require significant additional expense for minimal 

additional water quality improvement. State discretion must be retained in making these decisions based on information 

as a whole rather than on just one facet of the Tier II analysis. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section D 

7.e.ii: Section G 

7.e.ii: Section P 

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Comment ID 0283-A1.001.014 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

3. Alternatives Analysis 

This proposal greatly and unnecessarily expands the current scope of antidegradation analyses and the proposed 

language in 40 C.F.R. §131.12(b)(2) should be removed (and subsection (b)(1) should become part of (b)). Current 

antidegradation reviews are complicated enough without adding more layers of complexity with the newly proposed 

alternatives analysis and socioeconomic analysis. (78 Fed. Reg. 54528.) States should be allowed flexibility in making 

the determination whether lower water quality is both necessary and will accommodate important economic and social 

development. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section E 

7.e.ii: Section G 

Comment ID 0284-A2.001.008 

Author Name: Gildersleeve Melissa 

Organization: State of Washington, Department of Ecology 

In particular, the addition of new language in paragraph 131.12 (b) (2) is problematic because it appears to limit how the 

state can make a finding that lowering the water qualify is necessary after conducting an alternatives analysis and 

raises questions about how this will interpreted, who will conduct the analysis, and who will implement. These are 

issues that should be left to the individual state's discretion. Concerns include: 

• Washington standards already require that an alternatives analysis be done as part of the Tier II analysis, but we are 

not specific about which alternative must be used; this is evaluated on a case-specific basis. 

• The current federal proposed language has the state doing the alternative analysis, while our state-adopted language 

requires that the applicant provide this information. The state then reviews and evaluates the analysis along with the 

information provided to determine if the lowering of water quality is in the overriding public interest. 

• The statement that "if the state can identify any-practicable alternatives, the state must choose one of those 

alternatives..." is problematic, again because it is not the state that would be doing the analysis and then implementing 

the action, but the applicant. Without further definition of what constitutes "any practicable alternative" it is not clear 

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whether cost effectiveness or feasibility could be considered and weighed against the environmental improvements that 

would be gained. For example, an identified alternative might require significant additional expense for minimal 

additional water quality improvement. State discretion must be retained in making these decisions based on information 

as a whole rather than on just one facet of the Tier II analysis. 

Response 

For response to this comment, see the following response essay(s): 

7.e.ii 

7.e.ii: Section D 

7.e.ii: Section G 

7.e.ii: Section P 

7.E.III - ANTIDEG ALT - SUGG ALT 

Comment ID 0122-A1.001.004 

Author Name: Araujo Jaeleen 

Organization: Sealaska Corporation 

2. Alternatives Analysis 

Sealaska's concern is that an "alternatives analysis" requirement does not become a Petri dish for litigation. With vague 

wording such as a "range" of alternatives, and "practicability," that potential plainly exists. EPA's narrative contains a 

number of reassurances that would reduce that potential, including: a sensible definition of "practicable"; a requirement 

that alternatives need only be considered if they would "significantly reduce" the adverse impacts of the discharge 

[FN2]; and allowing the states flexibility to tailor the scope of the analysis to the significance of the project. 

Unfortunately, those reassurances do not appear in the actual proposed regulatory language. Also omitted are 

opportunities to minimize both the likelihood of litigation and the regulatory cost on the applicant-specifically, by allowing 

applicants to rely on the alternatives analysis performed by the Corps under the CWA §404(b)(1) guidelines. The 

proposal also could also be read to limit the States' ability to consider any environmental impacts associated with the 

alternative that may outweigh any water quality benefits (i.e. solid waste issues associated with land disposal). 

Accordingly, Sealaska would recommend the following regulatory language: 

Amend §131.3 to add a definition to read: 

"Practicable" means available for the proposed activity, technologically possible, able to be done or put into practice 

successfully at the site in question, and economically viable. 

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Amend Proposed §131.12(b)(2) to read: 

(2) The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this 

section, after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading 

practicable alternatives that have the potential to either prevent the degradation associated with the proposed activity or 

significantly reduce the extent to which the increased loading results in a lowering of water quality. If the State can 

identify any practicable alternatives, the State must choose one of those alternatives to implement when authorizing a 

lowering of high water quality. States may use their discretion in varying the scope and substance of the alternatives 

analysis based on the significance and magnitude of the project. In assessing alternatives, States shall consider any 

adverse environmental impacts associated with the alternative. For activities requiring authorization under Section 404 

of the Act, States may choose to adopt the analysis on the project performed under Subpart H of 40 C.F.R. Part 230 as 

the analysis required by this paragraph. 

[FN2] The proposed regulatory language is framed in terms of forcing consideration of alternatives that would 

"minimize" pollution. This could have the ironic effect of expanding the range of alternatives for discharges which are 

minor to begin with, since an alternative that would make only insignificant changes in project loads of a minor project 

could be viewed, in absolute terms, as "minimal." The pertinent issue is the degree to which the alternative would 

reduce proposed loads below those of the proposal itself; not the characterization of the alternatives' impact in the 

abstract (i.e. without reference to the applicant's actual proposal). 

Response 

For response to this comment, see the following response essay(s): 

7.e.iii 

7.e.iii: Section A 

7.e.iii: Section B 

7.e.iii: Section D 

7.e.iii: Section E 

7.e.ii 

Comment ID 0226-A1.001.002 

Author Name: Jones Lewis 

Organization: King and Spalding LLP on behalf of Georgia Water Quality Stakeholders 

Although the Georgia Stakeholders commend EPA's efforts to improve the protection of our nation's waters, the group 

objects to the proposed amendments relating to antidegradation review. As discussed more fully in the attached 

comments, the Georgia Stakeholders urge that the proposal to add a new paragraph (b)(2) to 40 C.F.R. 131.12 not be 

adopted. The Georgia Stakeholders believe this proposed new paragraph would confuse, not clarify, the analysis 

required under the existing rule. They also believe it would bring the rule into conflict with specific provisions of the 

Clean Water Act in a way the existing rule does not. 

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We appreciate this opportunity to provide comments on the proposed rule and please let us know if you have any 

questions concerning these comments. 

Response 

For response to this comment, see the following response essay(s): 

7.e.iii 

7.e.iii: Section F 

7.e.ii 

Comment ID 0247-A2.001.005 

Author Name: Turner Judson 

Organization: Georgia Department of Natural Resources 

Enhanced Treatment Techniques 

Proposed 40 CFR 131.12(b)(2) states that when evaluating a range of nondegrading and minimally degrading 

alternatives, if a State can identify any practicable alternatives, the State must choose one of those to implement when 

authorizing a lowering of high water quality. Page 54529 of the preamble indicates that an alternatives analysis for a 

discharge to high quality water should include an analysis identifying alternative or enhanced treatment techniques. 

Employing enhanced treatment techniques in this way leads to using the anitdegradation analysis process to impose 

alternative treatment levels or permit effluent limits. This requirement fails to recognize situations where returning highly 

treated wastewater to surface waters is preferable. 

The evaluation of enhanced treatment techniques as part of an antidegradation analysis is not needed to ensure that 

permit limits protect and improve water quality in a stringent and proactive manner. For example, in Georgia, EPD sets 

permit limits for discharges through waste load allocations, reasonable potential evaluations, and various strategies that 

infuse margins of safety and conservatism in permit limits. In many cases the permit limits are already stricter than 

necessary to protect water quality and as a result, enhanced treatment technologies are needed to meet those limits. In 

the last six years, EPD has only allowed secondary treatment limits in one permit, an ocean discharge. Section 12-5­

23(c) of the Georgia Water Quality Act (Act) provides the Director the authority to set effluent limitations based on an 

assessment of technology and processes unrelated to the quality of the receiving waters of the state. 

Section 391-3-6- .06(4)(a)10 of the Rules says that more stringent effluent limitations may be required as deemed 

necessary by EPD to ensure compliance with any applicable State water quality standards, effluent limitations, 

treatment standards, or schedules of compliance. Decisions affecting wastewater effluent permit limits are made 

pursuant to Section 391- 3-6-.06, Waste Treatment and Permit Requirements, and the other rules applicable to setting 

permit effluent limitations, but not to the antidegradation provisions in Rule 391- 3-6-.03, Water Use Classifications and 

Water Quality Standards. 

Alternative effluent limits have been historically set by the state through the draft permit process. Before many of EPD's 

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numerical water quality standards were finalized, discharges were often assigned effluent limitations that were more 

stringent than secondary treatment standards based on demonstrated performance and best professional judgment 

(BPJ) of what limits could be achieved at existing and proposed discharges. Limitations are assigned for industrial 

permits based on BPJ in the absence of numeric nutria criteria. Proactive nutrient limits have been assigned in advance 

of standards. Reuse limits, which are often more stringent than water quality based limits, are assigned to discharges 

related to reuse facilities. The basis for setting these limits is found in Section 391-3-6-.06(4)(a)(10) of the Rules and 

Section 12-5- 23(c)(2) and 12-5-23(c)(13) of the Act. EPD has also required applicants to use more appropriate 

treatment methods or equipment through the design development process that is required prior to permit issuance. 

Additional water quality protection measures are required in the highly populated North Georgia Metro District. Before a 

municipality in the District can get an increase in wastewater capacity, it has to demonstrate that it is in compliance with, 

or making a good faith effort to comply with, the District plans for stormwater, wastewater, and water supply and water 

conservation. The District's wastewater plan requires upgrading of treatment levels along with many other requirements, 

such as nonpoint pollution control measures. 

Also, it is helpful to recognize that when the evaluation of alternative treatment levels as part of the antidegradation 

process was advocated by EPA in the July 7, 1998 advance notice of proposed rulemaking, few numeric water quality 

standards had been developed. However, now that numeric water quality standards have effectively made permit limits 

more stringent, the evaluation of alternative treatment levels through the anitdegradation analysis process is an 

outdated, unnecessary concept. 

EPA's 1995 Interim Economic Guidance for Water Quality Standards Workbook provides methods for determining if the 

economic development associated with a proposed discharge is important and is still used by EPA and many states. 

The guidance seems to be at odds with imposing alternative permit limits derived through consideration of enhanced 

treatment techniques as part of an antidegradation analysis. The memorandum from Tudor T. Davies transmitting the 

guidance says "[t]he economic impacts to be considered are those that result from treatment beyond that required by 

technology-based regulations [secondary treatment]. All economic analyses of water quality standards should address 

only the cost of improving the water to meet water quality standards or the cost of maintaining water quality in highquality waters." The memo does not anticipate requiring any practicable treatment alternative. 

Further, evaluating stricter permit limits achievable through alternative treatment options is a one-dimensional measure. 

Requiring unnecessarily stringent limits as part of the antidegradation analysis is not necessarily the best way to ensure 

water quality improvements. 

If EPD required an analyses of permit limits that could be achieved by an even more expensive technology, we might 

force a permittee to have a "cleaner" discharge, but not necessarily a cleaner receiving water body. Applicants might 

agree to the expense of stricter permit limits because they need the additional wastewater capacity that comes with it, 

but not consider the fact that other important water quality programs would suffer due to the reduction in funding. 

Several Georgia municipalities are making significant improvements to water quality by rehabilitating their sewer 

collection systems. Some are required to do so by an EPD order, while others have entered a voluntary program where 

they demonstrate the implementation of expensive Capacity, Management, Operations, and Maintenance programs or 

have proactively improved their aging collection systems. At the same time, many municipalities feel a strong need to 

acquire more wastewater capacity to attract new business and get jobs for their community. If they have to choose 

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between spending additional funds to meet stricter than necessary permit limits in exchange for more wastewater 

capacity, or spending money to prevent future sanitary sewer overflows, they will most likely choose to forego the work 

needed to prevent the overflows. What benefit is derived from having a slightly "cleaner" permitted discharge if there is 

untreated sewage spilling into the same water body because funding was taken away from the sewer rehabilitation 

program to fund the "cleaner" discharge? 

The environmental trade-offs that occur with the use of stricter than necessary permit limits should be considered, as 

well as the overall environmental footprint of a wastewater treatment plant. A classic example is the reduction in 

bacteriological impacts from a wastewater discharge at the expense of adding disinfection byproducts to the effluent. 

Another consideration should be the generation of more solid waste associated with enhanced wastewater treatment, 

and then of course the problems associated with its disposal. The increased energy demands should be weighed 

against the benefit of a slightly "cleaner" discharge. 

In addition, requiring state regulators to conduct an analysis identifying alternative or enhanced treatment techniques 

using such general terms as "practicable," "economically viable," and "minimally degrading" is bad public policy that 

leaves state regulators, industry permittees and the general public uncertain as to the true scope of such a general, 

vague requirement. As a result, such a rule will guarantee that extensive litigation will inevitably follow with 

consequences that could vary widely from state to state as to the ultimate reach of the requirement. Furthermore, if 

EPA believes that more stringent effluent limitations are necessary in certain circumstances and for certain waters, then 

the appropriate way to address the issue is to clearly and unambiguously propose specific and concise requirements in 

the federal regulations that have been developed over the past 40 years specifically dealing with permit requirements ­

40 C.F.R. Part 122 - not through a vague requirement imposed indirectly in 40 C.F.R. Part 131 - EPA's water quality 

standards regulations. 

The proposed regulation should not require the imposition of alternative permit limits/enhanced treatment techniques 

because their inclusion does not foster the best use of limited resources to protect and improve water quality, 

particularly where a state has a track record of imposing stringent limits. 

Response 

For response to this comment, see the following response essay(s): 

7.e.iii 

7.e.iii: Section A 

7.e.iii: Section B 

7.e.iii: Section C 

7.e.iii: Section D 

7.e.iii: Section G 

7.e.iii: Section H 

7.e.iii: Section I 

7.e.iii: Section J 

7.e.ii 

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Comment ID 0256-A2.001.012 

Author Name: Shepherd Hal 

Organization: The Center for Water Advocacy 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

In the Preamble to the proposed rule, EPA "lists areas states' and tribes implementation measures would need to 

address, at a minimum." 78 FR at 54530. The proposed rule, however, does not incorporate all these minimum 

measures explicitly into § 131.12(a) or (b). As proposed, we also found it unclear whether (or when) States must 

perform both "a social and/or economic analysis" and the alternative analysis. We found the clarity and scope of the 

policies adopted for the Great Lakes Water Quality Initiative most helpful in formulation our suggested changes to 

EPA's proposal. See 40 CFR Pt. 132, App.E, III & IV (2013). CWA proposes the following changes to proposed 

amendment number 7 to §§ 131.12(a)(2) and (b) to address these concerns (new language in bold; removed language 

in strikethrough): 

§ 131.12 (a): (2) Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and 

wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after 

full satisfaction of the intergovernmental coordination and public participation provisions of the State's continuing 

planning process, that allowing lower water quality is necessary [begin new text], and if necessary, whether the benefits 

of economic or social development unquestionably outweigh the costs of lower water quality [end new text] [begin 

strikeout] to accommodate important economic or social development [end strikeout] [begin new text] to the affected 

community or surrounding area [end new text] [begin strikeout] in the area in which [end strikeout] [begin new text] 

where [end new text] the waters are located. In allowing such degradation or lower water quality, the State shall assure 

water quality adequate to protect existing uses fully. Further, the State shall assure that there shall be achieved the 

highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and 

reasonable best management practices for nonpoint source control. 

§ 131.12 (b): (2) The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph 

(a)(2) of this section, after [begin new text] identifying any cost-effective pollution prevention alternatives and techniques 

that are available to the applicant [end new text] [begin strikeout] conducting an alternatives analysis that evaluates a 

range of non-degrading and minimally-degrading practicable alternatives [end strikeout] that have the potential to 

prevent or minimize the degradation associated with the proposed activity. If the State can identify a[begin strikeout]ny­

[end strikeout] practicable alternatives that is [begin new text] less degrading than the applicant's proposal[end new 

text], the State must choose [begin strikeout] one of those [end strikeout] [begin new text] that [end new text] alternative 

[begin strikeout]s[end strikeout] to implement [begin strikeout] when [end strikeout] [begin new text] before [end new 

text] authorizing a lowering of high water quality. [begin new text] If the lowering of water quality is necessary, and will 

support important social and economic development, the State may allow all or part of the proposed lowering to occur 

as necessary to accommodate the important social and economic development." [end new text] 

Response 

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For response to this comment, see the following response essay(s): 

7.e.iii 

7.e.iii: Section C 

7.e.iii: Section K 

7.e.iii: Section L 

7.e.ii 

7.g.i 

7.k 

7.E.IV - ANTIDEG ALT - ALT SELECTION 

Comment ID 0151-A1.001.008 

Author Name: Tate Michael 

Organization: Kansas Department of Health and Environment 

Alternatives Analysis 

We do have concerns that seeking the minimally degrading alternative under a Tier 2 review will promote practices that 

are not cost-effective and marginally practicable. Practices and alternatives that balance lowering the degradation 

potential of a new or expanding facility with an evaluation of their cost-effectiveness are necessary to avoid backlogs 

and gridlock within the permitting process. We encourage EPA to resist calls for requiring the least degrading 

alternative be chosen, without regard to cost. Furthermore, EPA needs to clarify that the facility requesting the new or 

expanding permit to discharge from the State conducts the alternatives analysis, not the State itself. 

As an example of unintended consequences under the alternatives evaluation required by antidegradation, many 

Kansas cities utilize waste stabilization lagoons as their means of primary and secondary treatment of wastewater. 

KDHE has found such systems, when well-maintained, to be very effective in reducing levels of BOD, nutrients, TSS 

and pathogens. However, they are not amenable to ratcheting down to more stringent criteria, e.g., ammonia. Many of 

the cities utilizing lagoons have small population bases and are always threatened with declining population. 

But suppose in one case, a town expands from 500 to 1000 people. There will be increased loading from the town, 

thereby triggering antidegradation. A minimally degrading alternative might be to convert from the existing lagoon 

system to an activated sludge mechanical plant better suited to removing ammonia. Yet the population base, expanded 

as it may be, is still insufficient to financially support a high tech treatment process. In this case, some expansion of the 

existing lagoons might be preferable and sustainable, yet the quality of its effluent might not match that coming from the 

nitrifying treatment train present within a mechanical plant. 

Operation and maintenance costs of the mechanical plant will be difficult to support by the small population, not to 

mention retiring the capital cost financing of the more sophisticated facility. Conversely, the lagoon system is 

sustainable and "greener" because of its lower energy consumption and lack of chemical feed necessary to reduce 

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certain pollutants. The lagoon system, while not minimally degrading, does provide an overall robust approach in 

environmental management in a cost-effective manner and would be the preferable method of treating increased loads. 

Response 

For response to this comment, see the following response essay(s): 

7.e.iv 

7.e.iv: Section A 

7.e.iv: Section B 

7.e.iv: Section F 

7.e.ii 

Comment ID 0153-A2.001.011 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

Further, there may be environmentally beneficial reasons, unassociated with water quality, where a state would be 

disinclined to select a practicable alternative that has the potential to minimize water quality degradation associated with 

the proposed activity. For example, the proposed activity could be the environmentally superior option due to air quality 

concerns, depending on the circumstances of the area of concern. Similarly, wastewater recycling may be the most 

degrading alternative for a particular project but provide significant water quality or water supply benefits elsewhere. 

Another example is water quality concerns in a different watershed or different part of the watershed, e.g., more 

degradation in area "A" may provide more overall benefit than limited degradation in area "B." Or degradation of surface 

water may be necessary to provide a much greater groundwater benefit. States should have the flexibility to make this 

determination. 

Response 

For response to this comment, see the following response essay(s): 

7.e.iv 

7.e.iv: Section A 

Comment ID 0185-A1.001.010 

Author Name: Poltak Ronald 

Organization: New England Interstate Water Pollution Control Commission 

Beyond this, a proposed amendment requires that states conduct an alternatives analysis to support state decision08/04/2015 05:01 PM EDT 2-743 
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making for authorizing limited degradation of high quality water. Regarding this proposed amendment, there appears to 

be a discrepancy in the language describing alternatives analyses. In Section III.E.2 it is stated that the Tier 2 review 

calls for states to investigate whether allowing lower water quality is necessary to accomplish the proposed activity, 

typically by examining alternative ways of accomplishing the activity through an alternatives analysis. However, Section 

III.E.4.c.ii says that the state will determine whether the lowering of water quality that would result from a proposed 

activity is necessary to accommodate important economic or social development in the area in which the waters are 

located through an alternatives analysis and a social and/or economic analysis. The NEIWPCC states are seeking 

clarity on which evaluation EPA is proposing that states follow when looking at lowering water quality under the 

alternatives analysis: "as necessary to accommodate important economic or social development," or "as necessary to 

accomplish the proposed activity?" 

Response 

For response to this comment, see the following response essay(s): 

7.e.iv 

7.e.iv: Section G 

Comment ID 0189-A1.001.017 

Author Name: Margaret Watkins Nancy Schuldt 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

Alternatives Analysis 

Although the Bands support tightening the requirements for determining that "lowering water quality is necessary," the 

language proposed by EPA will not accomplish this because it leaves room for a state to select an alternative that 

would lower water quality even when it is clearly not necessary. Instead of requiring the state to choose the leastdegrading practicable alternative, it allows the state to choose any one of "a range of non-degrading and minimally 

degrading practicable alternatives": 

The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this 

section, after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading 

practicable alternatives that have the potential to prevent or minimize the degradation associated with the proposed 

activity. If the State can identify any practicable alternatives, the State must choose one of those alternatives to 

implement when authorizing a lowering of high water quality. 

This language allows the state to degrade waters even when a non-degrading alternative is available. The language 

requires a state to evaluate only "non-degrading and minimally degrading" alternatives, without defining what is 

considered "minimally degrading", and allows the state to degrade a receiving water body if there are no alternatives 

that meet these descriptions. A state could select an alternative that it characterizes as "minimally degrading," yet there 

could be less degrading alternatives available; the language does not require the state to apply the non-degrading or 

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least degrading alternative. If any alternative is any less degrading, then lowering water quality is not "necessary." The 

current proposed language is not consistent with the antidegradation requirements and goals of the CWA. The Bands 

recommend that EPA revise this provision to ensure that states fully evaluate the feasibility of the non-degrading or 

least degrading alternatives before determining that lowering water quality is necessary. 

Response 

For response to this comment, see the following response essay(s): 

7.e.iv 

7.e.iv: Section A 

7.e.ii 

Comment ID 0190-A1.001.008 

Author Name: Wagener Fritz 

Organization: NA 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

131.12(b)(l) and (2): "(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-bywater body basis at the State's discretion, but must not exclude any water body from high quality water protection solely 

because not all of the uses specified in CWA section 101(a)(2) are attained; and 

(2) The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this 

section, after conducting an alternatives analysis that evaluates a range of non-degrading and [begin strikeout] 

minimally [end strikeout] [begin new text] less- [end new text] degrading [begin strikeout] practicable [end strikeout] 

alternatives that have the potential to prevent or minimize the degradation associated with the proposed activity. If the 

State can identify any practicable alternatives, the State must choose one of those alternatives to implement when 

authorizing a lowering of high water quality [begin new text] unless EPA has approved the use of other scientific, 

economic, cost-effectiveness, or holistic environmental factors in the state's Antidegradation Implementation Methods 

[end new text]." 

Replacement of "minimally degrading" with "less-degrading in the first sentence of 131.(b)(1) is suggested because 

including only minimally degrading alternatives might rule out the consideration of an alternative(s) that might result in 

some degradation from current ambient water quality, but more than some might consider as a "minimal" degree of 

degradation. Either could be an acceptable outcome of the high quality water decision process in certain circumstances. 

Deletion of "practicable" in the first sentence of 131.12(b)(1) is suggested because it may not be possible to determine if 

an alternative is practicable without further consideration. 

The proposal seems to require states to conduct Tier 2 reviews on waters with UAAs showing that a 101(a)(2) uses is 

not attainable. Further consideration is needed as to whether that is EPA's intent in the proposal. 

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The proposal seems to require that a state choose a less-degrading alternative if one is "practicable". It is not clear that 

the proposal allows consideration of the cost-effectiveness of additional treatment/controls in the process of deciding 

which alternatives are "practicable". In some cases, it may appear that a cost to implement reductions in pollutant 

discharge (beyond the reductions to meet water quality criteria in waters of the U.S.) for an alternative is "economically 

viable", i.e., the phrase used by EPA in discussing this issue on page 54528 of the preamble), but the cost to install and 

operate such treatment/controls may be excessive and/or considered as prohibitive when compared to the 

increment/amount/degree of water quality protections that may result from the installation of such treatment/controls. 

States should not be limited to choosing the least degrading alternative from a list of "viable" treatment/control options 

without some flexibility to use the discretion that regulatory agencies must use from time to time. 

This provision should also allow the consideration of the project in terms of its overall effect on the environment. For 

example, a state should have the flexibility to choose an alternative as the outcome of the high quality waters decision 

process that incorporates the use "green"/sustainable technologies. A state should not be required to select an 

alternative that results in the least water quality degradation when the selection of that alternative might preclude other 

significant environmental benefits which may not be affordable if water quality issues are considered in isolation from 

the aspects of other environmental issues. 

Although it may be difficult to include these concepts in the words of a federal regulation, the final rule should not 

preclude state flexibility to consider important cost and environmental issues in the high quality waters decision process. 

One possible option to accomplish this goal is included above as an addition to the proposed language in 131.12(b)(2). 

Response 

For response to this comment, see the following response essay(s): 

7.e.iv 

7.e.iv: Section A 

7.e.iv: Section B 

7.e.iv: Section D 

7.e.iv: Section E 

7.e.iv: Section K 

Comment ID 0195-A1.001.018 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

Alternatives Analysis 

Although the NTWC supports tightening the requirements for determining that "lowering water quality is necessary," the 

language proposed by EPA will not accomplish this because it leaves room for a state to select an alternative that 

would lower water quality even when it is clearly not necessary. Instead of requiring the state to choose the least08/04/2015 05:01 PM EDT 2-746 
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degrading practicable alternative, it allows the state to choose any one of "a range of non-degrading and minimally 

degrading practicable alternatives": 

The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a) (2) of this 

section, after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading 

practicable alternatives that have the potential to prevent or minimize the degradation associated with the proposed 

activity. If the State can identify any practicable alternatives, the State must choose one of those alternatives to 

implement when authorizing a lowering of high water quality. 

This language allows the state to degrade waters even when a non-degrading alternative is available. The language 

requires a state to evaluate only "non-degrading and minimally degrading" alternatives, without defining what is 

considered "minimally degrading", and allows the state to degrade a receiving water body if there are no alternatives 

that meet these descriptions. A state could select an alternative that it characterizes as "minimally degrading," yet there 

could be less degrading alternatives available; the language does not require the state to apply the non-degrading or 

least degrading alternative. If any alternative is any less degrading, then lowering water quality is not "necessary." The 

current proposed language is not consistent with the antidegradation requirements and goals of the CWA. The NTWC 

asks that EPA revise this provision to ensure that states fully evaluate the feasibility of the non-degrading or least 

degrading alternatives before determining that lowering water quality is necessary. 

Response 

For response to this comment, see the following response essay(s): 

7.e.iv 

7.e.iv: Section A 

7.e.ii 

Comment ID 0211-A1.001.003 

Author Name: Lane David 

Organization: Minnesota Environmental Science and Economic Review Board 

B. Comments Pertaining to EPA's Anti-Degradation Proposal 

With regard to the alternatives analysis (Part 2), EPA proposes that a lowering of water quality under anti-degradation 

analysis is only available 

after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading practicable 

alternatives that have the potential to prevent or minimize the degradation associated with the proposed activity. This 

proposal also provides that if a state or tribe can identify any practicable alternatives, the state or tribe must choose one 

of those alternatives to implement when authorizing a lowering of high water quality. [FN5] 

EPA goes on to define "practicable" alternatives as those which are 1) available, 2) technologically possible, 3) able to 

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be implemented successfully at the site in question, and 4) economically viable. [FN6] This approach, however, has 

problems of its own. 

Principally and most notably, the Clean Water Act does not authorize the EPA or states to require implementation of 

degradation alternatives based on feasibility or cost; such alternatives must be based on environmental need. In other 

words, requiring implementation of an alternative measure simply because it is possible to do so goes beyond what the 

Clean Water Act authorizes. Anti-degradation policies are and must continue to be connected to what is actually 

needed for compliance with applicable water quality standards. Going beyond that standard quickly devolves into a 

"race to the bottom" based on available technology and the size of the permitted entity's checkbook. 

With that limitation, cost impacts of needed degradation alternatives must be factored into anti-degradation analysis, as 

discussed further below. 

[FN5] 78 Federal Register at 54528 and 54544. 

[FN6] Id., see also 54529. 

Response 

For response to this comment, see the following response essay(s): 

7.e.iv 

7.e.iv: Section B 

Comment ID 0211-A1.001.005 

Author Name: Lane David 

Organization: Minnesota Environmental Science and Economic Review Board 

2. "Implementation at any cost" will become the states' approach unless EPA makes it very clear that cost 

considerations are key to developing, evaluating, and implementing ranges of degradation alternatives. 

The general references to "economic viability," as noted above, provide no assurance that benefits and costs will be 

fairly balanced when states are developing ranges of alternatives. In other words, because of the pressures put upon 

them by various interested stakeholders, states will most likely prompted to define any technologically possible 

alternative as "practicable," notwithstanding cost, in hopes of avoiding legal challenges (e.g., if an alternative is included 

within a state's prescribed range, then it allegedly must be implemented, regardless of cost). 

The smaller the point source in question, the more economically problematic those alternatives will likely be. Many of 

MESERB's members – not to mention dozens of smaller communities in Minnesota – face the ongoing prospect of a 

static or shrinking tax base, and an aging population. Financial assistance from the state for treatment upgrades is 

spotty at best, and financial assistance from the federal government is but a distant memory. Again, if the EPA and the 

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states abolish any de minimus exemptions to anti-degradation review, alternatives analyses within a state-prescribed 

range of alternatives will push small communities into deciding between forgoing critical economic development, or 

taking on crippling upgrade costs for often little if any environmental benefit. 

EPA must make clear in its adopted rules that when states develop their suites of degradation alternatives, compliance 

cost is a valid and necessary consideration when determining which alternative (if any) a permittee will be required to 

implement. 

Response 

For response to this comment, see the following response essay(s): 

7.e.iv 

7.e.iv: Section C 

7.e.iv: Section L 

7.i 

Comment ID 0217-A2.001.017 

Author Name: Hale Michelle 

Organization: Alaska Department of Environmental Conservation 

[This excerpt contains red-line/strike-out text. Refer to the original document for recommended edits.] 

The final rule language must allow states, when reviewing antidegradation alternatives analyses, to consider costeffectiveness and watershed or cross-media issues as important factors in the alternative selection. While there may be 

situations where a less-degrading treatment technology or other alternative may exist for a proposed discharge, it may 

provide less additional water quality benefit for the additional expense than would pursuing more holistic approaches to 

water quality improvements. Also, processes that are less degrading for water quality may cause degradation to other 

environments such as discharges to land or air. Rather than using additional resources to achieve a marginally better 

quality effluent at a single discharge point, EPA should allow states to support a more holistic approach; e.g., install 

nonpoint source controls throughout the watershed to achieve an overall water quality improvement. We recommend 

striking the sentence that begins with "If the State can identify any ..." as shown in d. Suggested revision below. This 

provides the State flexibility in choosing better, more effective methods of improving receiving water quality than some 

potentially less degrading alternative. 

Alternatives analysis prepared for other regulatory requirements (e.g. National Environmental Policy Act, CWA 

5404(b)(1)) should also be allowed to fulfill the requirements of the proposed rule if they are deemed sufficient for the 

purpose. 

d. Suggested revision: 

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§ 131.12(b)(2) The State [begin strikeout] will only [end strikeout] [begin new text] may [end new text] make a finding 

that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this section, after [begin strikeout] 

conducting an alternatives analysis that evaluates [end strikeout] [begin new text] considering [end new text] a range of 

non-degrading and [begin strikeout] minimally [end strikeout] [insert new text] less [end new text] degrading practicable 

alternatives that have the potential to prevent or minimize the degradation associated with the proposed activity. [Begin 

strikeout] If the State can identify any practicable alternatives, the State must choose one of these alternatives to 

implement when authorizing a lowering of high water quality. [end strikeout] 

Response 

For response to this comment, see the following response essay(s): 

7.e.iv 

7.e.iv: Section A 

7.e.iv: Section B 

7.e.iv: Section H 

7.e.ii 

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Chapter 2 - Comment Documents Antidegradation 

Comment ID 0228-A2.001.004 

Author Name: Conn Rachel 

Organization: Amigos Bravos 

EPA should also require states and tribes to choose the least degrading practicable alternative not just one in the range 

from not-degrading to minimally degrading. EPA should also clarify the requirement of (a) the socio-economic review, 

(b) the assurance of the protection of existing uses, (c) the assurance all requirements for new and existing point 

sources are met and (d) that all cost-effective and reasonable best management practices for nonpoint source control 

have been applied BEFORE degradation is allowed. 

Response 

For response to this comment, see the following response essay(s): 

7.e.iv 

7.e.iv: Section A 

7.e.iv: Section J 

Comment ID 0247-A2.001.003 

Author Name: Turner Judson 

Organization: Georgia Department of Natural Resources 

Return Flow Considerations 

We recommend that the regulation acknowledge that under some circumstances, returning highly treated wastewater 

flows to surface waters best meets the goal of supporting the protection of fish, shellfish, wildlife, and recreation in and 

on water. 

Wastewater disposal practices can affect the flow regimes of streams, and should be consistent with the protection of 

natural systems. For example, the use of land application systems can affect the quantities and timing of returns to 

surface waters. Some portion of the water treated in land application systems is not returned to surface waters in a time 

frame that allows reasonable use of the returned water. For practical purposes, the lag in returns contributes to the 

cumulative consumptive use in the sub-basin or watershed. 

The Georgia Comprehensive State-Wide Management Plan requires EPD to consider the extent to which wastewater 

discharges will influence the location, amounts, and timing of waters returning to streams or other waters, and the 

implications these considerations may have on the continued sustainable use and physical, chemical, and biological 

integrity of the affected waters. 

Therefore, if a permit applicant can demonstrate that water quantity in the receiving water is limited to the degree that 

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the water quantity benefits of allowing a surface water discharge outweigh the effects of lower water quality resulting 

from the discharge (provided that the level of water quality necessary to protect the existing uses will be maintained and 

protected), we believe the applicant should not have to consider land application of wastewater in the required analysis 

of alternatives. However, other alternatives such as water conservation, control of infiltration/inflow, and recycling or 

reuse should be examined. This demonstration might include, but would not be not limited to, references to surface 

water flow needs identified in regional water plans, applicable recommendations for water management (for example, 

restoration opportunities identified in documents like "Running Dry", a report by American Rivers and the Flint 

Riverkeeper), or the need to support aquatic life and drinking water supplies. 

Response 

For response to this comment, see the following response essay(s): 

7.e.iv 

7.e.iv: Section A 

7.e.iv: Section C 

Comment ID 0255-A2.001.008 

Author Name: Quaempts Eric 

Organization: Confederated Tribes of the Umatilla Indian Reservation 

Antidegradation 

The CTUIR DNR is concerned about the proposed rule language that appears to allow a State to degrade waters even 

if there is an available non-degrading alternative. The language should be modified to require a State to apply the nondegrading or least degrading alternative. States should analyze all non-degrading and least degrading options before 

they conclude that reduced water quality is acceptable. 

Response 

For response to this comment, see the following response essay(s): 

7.e.iv 

7.e.iv: Section A 

Comment ID 0272-A2.001.017 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

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7.e.iv 

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Finally, the Groups urge EPA to better define this provision such that a state is not allowed to lower water quality for 

normal sprawl and growth but rather that states be required to address those issues before water quality is threatened. 

Response 

For response to this comment, see the following response essay(s): 

7.e.iv: Section I 

7.F - ANTIDEG - IMP METHODS 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

7.F.I - ANTIDEG IMP METH - TRANSPARENCY/ADOPTION 

Comment ID 0119-A1.001.010 

Author Name: Lemke Lee 

Organization: Georgia Mining Association 

Similarly, EPA should explicitly specify in regulation that states and tribes are not required to adopt antidegradation 

implementation methods as WQS subject to EPA review and approval, as the Proposed Rule does not specify how 

such a change might be implemented in revising §131.6(d) as suggested. 

Antidegradation Implementation Methods 

GMA supports the Act's goal of ensuring public participation in development and management of antidegradation 

implementation methods required under the current version of §131.12. However, the concerns expressed in the 

Docket "that some states and tribes have not developed or made publically available antidegradation implementation 

methods" is a deficiency of those programs from currently codified requirements that should be more appropriately 

addressed by judicial or administrative enforcement action, not by codifying requirements and associated 

implementation methods subject to EPA review and approval as Water Quality Standards (WQS). GMA believes 

compliance with the existing version of the regulation are more than sufficient to meet the Act's goals, and are the 

appropriate means to ensure that state and tribal programs are adequate without usurping the "primary role of states 

and tribes in establishing and implementing water quality standards" EPA acknowledges at 78 FR 52529, col. 3. 

Response 

For response to this comment, see the following response essay(s): 

08/04/2015 05:01 PM EDT 2-753 
7.f.i 

7.f.i: Section A 

Chapter 2 - Comment Documents Antidegradation 

Comment ID 0121-A1.001.005 

Author Name: Whirley Gregory 

Organization: Virginia Department of Transportation 

(4) Antidegradation Implementation - §131.12 

Language was added to amend §131.12 to ensure that high-quality waters are identified on a parameter-by-parameter 

approach or on a water body-by-water body approach (at the State's discretion) and prevent excluding a water body 

from high quality water protection solely because not all of the uses specified in the CWA are attained. The language 

also includes a requirement for conducting an alternatives analysis to identify practicable alternatives that either prevent 

or minimize degradation before making a finding that lowering high water quality is necessary. 

The EPA is also considering and requesting comment on including a requirement that antidegradation implementation 

methods be adopted as WQS, subject to the EPA's review and approval or disapproval. The alternative that EPA is 

considering and requesting comment on specifies that states and tribes may, but are not required to, adopt 

antidegradation implementation methods as WQS. Under this alternative, states and tribes must develop 

antidegradation implementation methods and must make them available to the public, but they would not be subject to 

EPA review and approval or disapproval unless the state or tribe chose to formally adopt them as WQS. 

The addition of this language could have an impact on future VDOT projects. This new language is somewhat overreaching in that the EPA is requesting comments on whether the implementation methods of each state's 

antidegradation policy should be part of the WQS and, therefore, subject to EPA review and approval or disapproval, in 

addition to making it available to the public. Permit issuances for discharges to impaired waters or high quality waters 

could be affected by the requirement for an alternatives analysis to evaluate a range of non-degrading and minimally 

degrading practicable alternatives. The required implementation methods must include an evaluation of cost-effective 

and reasonable best management practices for nonpoint source control when allowing a lowering of water quality. 

Currently, Virginia's antidegradation policy is included as part of the state WQS. DEQ addresses implementation 

through guidance documents. 

The implementation methods are more appropriately placed in guidance or developed under a separate rulemaking 

process. Incorporation of the implementation methods directly in the WQS may be problematic because: 

a) It may complicate the WQS rulemaking and triennial review process. 

b) The WQS do not lend themselves to the degree of specificity needed to elaborate on implementation methods. 

c) Incorporation into the WQS would lead to a reduction in flexibility and a more rigid interpretation of guidance, which 

may prove difficult when applying anti-degradation criteria that do not address site-specific considerations. 

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Chapter 2 - Comment Documents Antidegradation 

Response 

For response to this comment, see the following response essay(s): 

7.f.i: Section A 

Comment ID 0123-A1.001.014 

Author Name: Chin Ryan 

Organization: NA 

The third proposal, making available to the public the antidegradation implementation methods, is also an important 

clarification and one that I support. Specifically, allowing for more transparency and accountability to the public is an 

important element of the administrative process, as well as with the EPA and by extension, state environmental 

agencies. It will give information to the public to understand and ensure that activities which affect the water quality are 

authorized and are consistent with the policies and requirements set forth. Further, I support the EPA's request to 

consider the requirement that antidegradation implementation methods be adopted as WQS and thus subject to EPA 

review and approval, as opposed to the alternative that the EPA specifying that states and tribes may, but are not 

required to, adopt antidegradation implementation methods as WQS. The former option, allowing for the EPA to review 

such methods would allow the EPA to establish a consistency across the states in establishing a minimum level of 

protection and methods, while also allowing the state and tribes to enact more stringent requirements if they so choose, 

so long as they meet the minimum requirements the EPA would set forth. Given EPA's concern that both certain water 

bodies that should be designated high quality waters are not being designated as such because they might not meet all 

the required uses, and during antidegradation methods that practicable alternatives are not always being considered, it 

would be more effective and efficient for the EPA to subject antidegradation implementation methods to be adopted as 

WQS and subject to the EPA's review. While the CWA has outlined specifically to protect and recognize the primary 

responsibilities and rights of states itself in dealing with pollution, that concern is subject to the overall aim and intent of 

the CWA, which is to preserve and maintain the waters of the nation. Since antidegradation methods in fact deal with 

the high quality waters of the nation, it is allowable that those methods be subject to the EPA's review, to ensure that at 

the very least, certain minimum requirements are met in protecting those waters from being degraded. Moreover, given 

that Congress has also specifically enacted an enforcement provision in section 501(a) of the CWA that authorizes EPA 

"prescribe such regulations as are necessary to carry out functions under this Act," this proposal would allow the EPA to 

protect and ensure that high quality waters under the Tier 2 review are sufficiently protected. It still also allows states 

and tribes the primary responsibility to preserve and protect these waters, by either determine the implementation 

methods (which would be subject to EPA review) and going beyond any minimum requirements the EPA sets forth, and 

the EPA's only responsibility is to review the antidegradation implementation methods to ensure that they are sufficient 

enough. Further, as antidegradation is an important factor and can directly effect NPDES permits, this is another factor 

supporting the EPA to require states and tribes to formally adopt and obtain EPA approval for the antidegradation 

implementation methods. Since the EPA outlines a list of areas that need to be addressed in states' and tribes' 

implementation methods, there is no confusion in how to obtain EPA approval and would allow for a more consistent 

and uniform approach to evaluating these methods and the protections they afford. 

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Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0126-A2.001.003 

Author Name: Barry Marie 

Organization: Washoe Tribe of Nevada and California 

Part 3: Developing and Making Available to the Public Antidegradation Implementation Methods CFR 54529 

Support adoption of antidegradation implementation methods as part of the water quality standards submission revision 

to sections 131.6(d). 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0128-A1.001.006 

Author Name: Boon Richard 

Organization: California Stormwater Quality Association 

D. Antidegradation Implementation 

CASQA recognizes the desire of the USEPA to ensure that antidegradation policies are consistently being implemented 

throughout the country. However, the proposed modifications to the regulations greatly expand the scope of USEPA's 

oversight of State's antidegradation policies to address concerns that are not universally present. In California, the 

State's Antidegradation Policy was adopted in 1968 and pre-dates the 1972 Clean Water Act. California consistently 

implements the Antidegradation Policy utilizing defined administrative procedures. USEPA should not mandate that 

California adopt a new policy or regulations to incorporate new minimum elements or develop an implementation policy 

without a demonstration that the State's current policy and/or process is inadequate as currently implemented. The 

proposed modifications have the potential to limit the ability of California to continue to define the best methods for 

implementing antidegradation policies given the varying conditions throughout the State. As a result, we request that 

the modifications be removed. 

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Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section K 

7.g.ii 

Comment ID 0129-A2.001.013 

Author Name: Steidel Robert 

Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc. 

C. Implementation 

Third, EPA's proposal correctly leaves it to the states as to whether antidegradation implementation should be in state 

regulations or guidance, but makes it clear that there must be a viable, transparent process in either case. However, we 

do not agree that there is any current confusion as to whether there is a legal need for state regulations on 

implementation. See 78 Fed. Reg. at 54529. Instead, we believe it is clear that implementation provisions need not be 

adopted as a regulation. We also note the Agency's reference to implementation as an important element of the 

antidegradation element of water quality standards. Id. Just as various permitting procedures are often spelled out in a 

state agency's (and EPA's) guidance or informal procedures and function perfectly well and in a transparent manner, 

antidegradation may also be properly handled by the states on a less formal basis than through rulemaking. In this 

regard we strongly disagree with the Agency's suggestion that because antidegradation implementation "may have 

direct implications for NPDES permits," id. at 54530, that may be a reason for requiring implementation procedures in 

state regulations. As we note immediately above, various permitting procedures are successfully specified both by the 

states and by EPA itself in guidance or less formal presentations. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0133-A2.001.007 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

4. Antidegradaiion Implementation 

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a. LDEQ does not support any language that requires or may potentially require states to adopt implementation 

procedures into regulations. 

i. Per 40 CFR, Part 131, Sections 131.2, 131.10, 131.11, and 131.12, states are required to adopt [into regulation] 

designated uses, criteria, an antidegradation policy, and general policies. Per 40 CFR 131.5(f), EPA may require states 

to submit information on general policies applicable to State standards which may affect their application and 

implementation. Based on this requirement, it can be expected that states must submit implementation procedures for 

review in order to ensure the procedures support and are consistent with the antidegradation policy. However, any 

requirement to adopt implementation procedures into a state's regulation exceeds the original authority and intent of the 

water quality standards regulations. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0133-A2.001.009 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

c. LDEQ does not agree with public notice requirements as proposed since there is no differentiation between 

"procedures" and internal guidance, Standard Operating Procedures (SOPs), etc. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section D 

Comment ID 0134-A1.001.017 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

EPA review of antidegradation implementation methods - State methods for implementing an antidegradation policy are 

not and should not be treated as water quality standards or made subject to EPA review and approval. Instead, those 

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methods should be left to state discretion. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0145-A2.001.017 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

EPA review of antidegradation implementation methods - State methods for implementing an antidegradation policy are 

not and should not be treated as water quality standards or made subject to EPA review and approval. Instead, those 

methods should be left to state discretion. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0147-A2.001.005 

Author Name: Gaskin David 

Organization: Nevada Division of Environmental Protection 

Proposed Revisions to: § 131.12 Antidegradation Policy and Implementation Methods 

Nevada is not supportive of EPA requiring the adoption of antidegradation implementation methods into a state's water 

quality regulations. Revising regulations is a very involved process with uncertainty regarding the outcome. By not 

adopting these methods into regulations, states are provided with much more flexibility to deal with unanticipated 

situations and to readily improve our implementation methodology as needed. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

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7.f.i: Section A 

Comment ID 0148-A2.001.004 

Author Name: Rice Patrick 

Organization: Nebraska Department of Environmental Quality 

We agree that implementation methods for antidegradation should be made available to the public; however in 

response to the question posed in the preamble at Part III. E. 3. (pg. 54529), NDEQ does not support any requirement 

to adopt these implementation methods into our Water Quality Standards. The day-to-day mechanics of how Water 

Quality Standards and other rules are implemented are not required in regulation and NDEQ believes that same should 

apply to antidegradation implementation. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section C 

Comment ID 0149-A2.001.008 

Author Name: Michael Gene 

Organization: City of Pueblo Wastewater Department 

b. EPA review and approval of antidegradation implementation regulations. 

EPA requested comment about whether EPA should include a requirement that antidegradation implementation 

methods be adopted as water quality standards subject to EPA review and approval under Section 303(c) of the Act. 

The proposed review authority would be a significant interference in state implementation of the state's own 

antidegradation regulations. Furthermore, there is no authority under the Act for EPA to consider these implementation 

regulations as water quality standards under Section 303(c). 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.m 

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Comment ID 0150-A1.001.011 

Author Name: Heisig-Mitchell Jamie 

Organization: Hampton Roads Sanitation District 

3. Implementation 

EPA's proposal makes it clear that antidegradation implementation needs to be a transparent process and that states 

have the discretion to identify the implementation practices in either regulation or guidance. HRSD supports a 

transparent approach to antidegradation review. However, HRSD strongly disagrees that implementation methods need 

to be incorporated into state water quality standards regulations. A wide array of clean water programs and practices 

are managed through state and federal guidance documents. These guidance documents are available to stakeholders 

and the public and provide the necessary transparency to the process. 

EPA expressed concern that the Agency will be unable to review and approve implementation methods if they are not 

incorporated into regulation. Antidegradation is a required element of the permitting process. Both EPA and third parties 

have the opportunity to evaluate the adequacy of state implementation methods relative to the federal minimum 

requirements with each permit review. 

EPA also proposed at 78 Fed. Reg. 54529 that states may, but are not required to, include antidegradation 

implementation methods in state water quality standards. HRSD supports this option. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section C 

Comment ID 0151-A1.001.005 

Author Name: Tate Michael 

Organization: Kansas Department of Health and Environment 

Implementation 

Nonetheless, the lack of strong statutory guidance provides flexibility to EPA in applying antidegradation policies to 

water quality standards. That flexibility should, in turn, be provided to the States to apply antidegradation in managing 

the water quality of their unique waters. We believe the proposal to require that antidegradation implementation 

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methods be adopted as water quality standards subject to EPA review and approval runs headlong into Congressional 

intent, expressed in Section 101(b), "to recognize, preserve and protect the primary responsibilities and rights of States 

to prevent, reduce, and eliminate pollution..." Section 303 grants primacy to the States to frame and establish their 

water quality standards within the environmental, social and economic context of environmental management in their 

state, provided those standards are consistent and abide with the Clean Water Act. Requiring implementation methods 

to be incorporated within water quality standards such that EPA can approve or disapprove those methods intercedes 

into a State's discretion on how to administer and implement those standards to its waters. 

Many States, including Kansas, must place those implementation procedures into their water quality standard 

regulations because of State administrative procedures, policies or legal requirements. As a result, EPA has access to 

those methods for review and approval. However, as a general policy, it would be far preferable that EPA simply 

continue to require that States have an antidegradation policy as part of their water quality standards and that their 

implementation procedures for antidegradation be transparent and readily accessible by the public. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0153-A2.001.013 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

E. EPA's WQS review and approval authority should not include all antidegradation policy implementation methods. 

EPA is proposing to amend section 131.5(a)(3) to add a provision specifying that it has review and approval authority 

concerning a state's antidegradation policy. (78 Fed. Reg. 54544, col. 1.) Specifically, the proposed amendment would 

give EPA authority to determine whether a state has adopted an antidegradation policy consistent with section 

131.12(a) (including the proposed revisions to § 131.12). (Id., 54544, col. 1.) The proposed language at section 

131.5(a)(3) also specifies that if a state has chosen "to adopt" implementation methods then EPA has review and 

approval authority to ensure those methods are consistent with the proposed implementation measures at section 

131.12(b). (Id., 54544, col. 1.) Stated somewhat differently, the preamble characterizes a state's "formal adoption" of 

implementation methods as "water quality standards" as the trigger for EPA's review authority. (Id., 54529, col. 2.) 

The State Water Board recommends that the final rule clearly reflect the preamble language. The State Water Board 

supports the proposal so long as the regulatory language makes clear that states retain discretion to decide whether to 

formally adopt implementation methods "as WQS," in which case those implementation measures are subject to EPA's 

WQS review and approval, or to otherwise adopt implementation methods not "as WQS," in which case they are not 

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subject to EPA's WQS review and approval. 

The State Water Board's proposed revision to 131.5(a)(3): "Whether the State has adopted an antidegradation policy 

consistent with § 131.12(a), and [begin new text] , [end new text] if the State has chosen to [begin new text] formally 

[end new text] adopt implementation methods as water quality standards [end new text] , whether those implementing 

methods are consistent with § 131.12." 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0154-A2.001.006 

Author Name: McGee Beth 

Organization: Chesapeake Bay Foundation 

Antidegradation implementation methods should be adopted into States' WQS. 

Lastly, and perhaps most importantly, CBF strongly supports EPA's proposal to require States and Tribes to develop 

and make available to the public, their antidegradation implementation methods. Furthermore, we believe these 

procedures should be formally adopted as part of States' WQS and therefore subject to EPA review and 

approval/disapproval. Otherwise, we fear that EPA's goal of revising these regulations to achieve the goals of the CWA 

and to improve consistency and transparency will not be achieved. Furthermore, formal adoption into State WQS will 

provide the opportunity for greater public involvement in the process, increase confidence in States' water quality 

programs, and ensure the implementation methods are updated as necessary, as part of the triennial review process. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0156-A1.001.009 

Author Name: Jackie Kepke Adam Link 

Organization: California Association of Sanitation Agencies and Tri-TAC 

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4. Antidegradation Implementation [Notice Section III.E, FR 54525-54531, 40 CFR sections 131.12, 131.5(a)] 

As a general comment, CASA and Tri-TAC maintain that there is no demonstrated need to establish prescriptive 

minimum federal antidegradation implementation requirements, which would require USEPA review and approval. The 

proposed modification includes a requirement that antidegradation implementation methods be adopted as WQS and 

thus subject to USEPA's review and approval or disapproval. (FR 54529, 40 CFR section 131.12) Currently, the federal 

rules leave implementation of antidegradation policies to the individual States and tribes, and States should continue to 

have such discretion over implementation methods. The proposed framework set forth in the rule would reduce 

flexibility needed by individual States and regions to address unique watershed conditions. For example, in California, 

the State has had an antidegradation policy in place since 1968, before passage of the CWA in 1972, and the policy as 

well as subsequent implementation guidance from the State have functioned well over that time period. Thus, in direct 

response to USEPA's request for comment relating to "whether EPA should include a requirement that antidegradation 

implementation methods be adopted as WQS and thus subject to EPA's review and approval or disapproval" (FR 

54529), CASA and Tri-TAC oppose such a proposal and believe USEPA should not have a role in approving State 

antidegradation implementation policies. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0157-A1.001.008 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

EPA is also proposing a requirement for states to publish implementation methods for the above procedures and 

standards and is proposing authority for EPA review and approval of these methodologies at 40 CFR 131.5(a). Because 

Proposed 40 CFR 131.12(b) effectively mandates that states develop implementation methods, the Chamber is 

concerned that together these provisions would be used by EPA to direct state implementation protocols. Given the 

Chamber's objections to the newly created antidegradation standards that are discussed above, these new EPA 

authorities over implementation methodologies are strongly opposed as an improper intrusion on state policy. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.m 

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Comment ID 0158-A1.001.012 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

KDOW respectfully suggests that EPA strike §131.5(a)(3): 

" [begin strikeout] §131.5(a)(3) Whether the State has adopted an antidegradation policy consistent with §131.12(a), 

and if the State has chosen to adopt implementation methods, with those implementation methods are consistent with 

§131.12." [end strikeout] 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0158-A1.001.015 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

The proposed WQS regulation at §131.12(b) requires the State to develop and make available to the public, methods 

for implementation of the State's antidegradation policy. Such a requirement would inappropriately expand EPA's 

review authority with regard to antidegradation implementation. Antidegradation implementation is not a water quality 

standard, and therefore is not subject to review by EPA under the authority provided it in §303(c) of the Act. EPA may 

review a State's antidegradation policy for consistency with EPA's antidegradation policy, but EPA may not review 

State's implementation for consistency with EPA's view on implementation. See §131.6(f) regarding State WQS 

submissions: "(f) State shall submit: General information . . . on general policies applicable to State standards which 

may affect their application and implementation." Antidegradation implementation is at the State's discretion; it is 

reviewable only for consistency with EPA antidegradation policy. (N.B. EPA does not itself appear to have an 

antidegradation implementation policy. To Kentucky's knowledge, EPA has not addressed antidegradation in any of its 

CWA §402 general permits for federal facilities, tribes and direct implementation states.) 

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KDOW appreciates EPA's goal of better permitting practices for antidegradation. KDOW agrees that transparency 

regarding States' implementation methods is important, and should help to further the goal of protecting existing water 

quality where it exceeds the State's water quality standards. However, KDOW does not support a requirement that 

those implementation methodologies be adopted into state law. While this is the desired option for many states, 

including Kentucky, it is not mandated by the Act, nor is it necessarily conducive to enhanced water quality 

management. Many states use the flexibility that comes with not adopting their methods into rule to refine and improve 

their methodology more regularly. While KDOW continues to be a strong advocate of transparency and clarity, this goal 

does not necessarily require rulemaking. 

KDOW believes that the proposal at §131.12(b) is unnecessary. §131.20(b) already requires that States hold a public 

hearing for reviewing water quality standards "in accordance with state law," as do EPA's water quality management 

regulations at 40 CFR Part 122, and EPA's public participation regulations at 40 CFR Part 25. Therefore, KDOW 

suggests that EPA strike §131.12(b). If EPA determines to adopt this language, KDOW's suggested revision to 

§131.12(b) is as follows: 

"(b)The State shall develop and make available to the public statewide methods for implementing the antidegradation 

policy adopted pursuant to paragraph (a) of this section. A State's antidegradation implementation methods shall be 

designed to [begin strikeout] achieve [end strikeout] [begin new text] be consistent with the [end new text] 

antidegradation [begin strikeout] protection [end strikeout] [begin new text] policy stated in [end new text] [begin 

strikeout] consistent with [end strikeout] paragraph (a) of this section. [begin strikeout] Such methods must ensure that: 

[end strikeout] " 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0160-A2.001.010 

Author Name: West Jeff 

Organization: Xcel Energy 

b. EPA review and approval of antidegradation implementation regulations. 

EPA requested comment about whether EPA should include a requirement that antidegradation implementation 

methods be adopted as water quality standards subject to EPA review and approval under Section 303(c) of the Act. 

The proposed review authority would be a significant interference in state implementation of the state's own 

antidegradation regulations. 

Response 

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For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0161-A2.001.004 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

3. Regarding Section §131.12 Antidegradation Policy and Implementation Methods: 

• States should retain the discretion of establishing site-specific implementation methods, and these should not be part 

of the water quality standards nor should they require EPA approval. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0164-A1.001.004 

Author Name: Allmon Eric 

Organization: Lowerre, Frederick, Perales, Allmon & Rockwell on behalf of Clean Water Action et al. 

Tier 2 Anti-degradation 

EPA should include a requirement that anti-degradation implementation methods be adopted as WQS subject to EPA 

review and approval or disapproval. In doing so, EPA should set forth more specific standards to limit the manner in 

which a state may implement a significance threshold that would exempt regulatory actions from the alternatives 

analysis of a Tier 2 review. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

7.i 

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Comment ID 0165-A2.001.011 

Author Name: Gunderson Steven 

Organization: Colorado Department of Public Health and Environment 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

10. Antidegradation Implementation - Developing and Making Available to the Public Antidegradation Implementation 

Methods 

Colorado supports making antidegradation methods transparent and available for the public. However, even though 

Colorado has formally adopted implementation methods, we do not support the requirement for all states to do so. EPA 

has legitimate access to NPDES permits where the results of the allocation decisions are implemented. If the 

implementation is inappropriate, EPA can object to such permits. A requirement to formally adopt the antidegradation 

implementation methods is unnecessary. Colorado offers the following refinements to 131.12 (b) which supports 

transparency and availability, but does not expand EPA's role of review and approval: 

(b) The State shall [begin strikeout] develop [end strikeout] [begin new text] describe [end new text] and make available 

to the public statewide methods for implementing the antidegradation policy adopted pursuant to paragraph (a) of this 

section. A State's antidegradation implementation methods shall [begin strikeout] be designed to [end strikeout] achieve 

antidegradation protection consistent with paragraph (a) of this section. Such methods must ensure that: 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0166-A2.001.012 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

KDOW respectfully suggests that EPA strike §131.5(a)(3): 

" [begin strikeout] §131.5(a)(3) Whether the State has adopted an antidegradation policy consistent with §131.12(a), 

and if the State has chosen to adopt implementation methods, with those implementation methods are consistent with 

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7.f.i 

Chapter 2 - Comment Documents Antidegradation 

§131.12." [end strikeout] 

Response 

For response to this comment, see the following response essay(s): 

7.f.i: Section A 

Comment ID 0166-A2.001.015 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

The proposed WQS regulation at §131.12(b) requires the State to develop and make available to the public, methods 

for implementation of the State's antidegradation policy. Such a requirement would inappropriately expand EPA's 

review authority with regard to antidegradation implementation. Antidegradation implementation is not a water quality 

standard, and therefore is not subject to review by EPA under the authority provided it in §303(c) of the Act. EPA may 

review a State's antidegradation policy for consistency with EPA's antidegradation policy, but EPA may not review 

State's implementation for consistency with EPA's view on implementation. See §131.6(f) regarding State WQS 

submissions: "(f) State shall submit: General information . . . on general policies applicable to State standards which 

may affect their application and implementation." Antidegradation implementation is at the State's discretion; it is 

reviewable only for consistency with EPA antidegradation policy. (N.B. EPA does not itself appear to have an 

antidegradation implementation policy. To Kentucky's knowledge, EPA has not addressed antidegradation in any of its 

CWA §402 general permits for federal facilities, tribes and direct implementation states.) 

KDOW appreciates EPA's goal of better permitting practices for antidegradation. KDOW agrees that transparency 

regarding States' implementation methods is important, and should help to further the goal of protecting existing water 

quality where it exceeds the State's water quality standards. However, KDOW does not support a requirement that 

those implementation methodologies be adopted into state law. While this is the desired option for many states, 

including Kentucky, it is not mandated by the Act, nor is it necessarily conducive to enhanced water quality 

management. Many states use the flexibility that comes with not adopting their methods into rule to refine and improve 

their methodology more regularly. While KDOW continues to be a strong advocate of transparency and clarity, this goal 

does not necessarily require rulemaking. 

KDOW believes that the proposal at §131.12(b) is unnecessary. §131.20(b) already requires that States hold a public 

hearing for reviewing water quality standards "in accordance with state law," as do EPA's water quality management 

regulations at 40 CFR Part 122, and EPA's public participation regulations at 40 CFR Part 25. Therefore, KDOW 

suggests that EPA strike §131.12(b). If EPA determines to adopt this language, KDOW's suggested revision to 

§131.12(b) is as follows: 

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"(b)The State shall develop and make available to the public statewide methods for implementing the antidegradation 

policy adopted pursuant to paragraph (a) of this section. A State's antidegradation implementation methods shall be 

designed to [begin strikeout] achieve [end strikeout] [begin new text] be consistent with the [end new text] 

antidegradation [begin strikeout] protection [end strikeout] [begin new text] policy stated in [end new text] [begin 

strikeout] consistent with [end strikeout] paragraph (a) of this section. [begin strikeout] Such methods must ensure that: 

[end strikeout] " 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0167-A1.001.011 

Author Name: Anderson Paul 

Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District 

iii. Part 3 - Antidegradation Methods 

The Lower Fountain District submits it is unnecessary to require states with delegated water quality programs to 

develop antidegradation methods as WQS. Colorado administers an EPA-delegated program consistent with both the 

CWA and EPA regulations, and in turn its regulations include antidegradation provisions that appear consistent with the 

"Minimum Elements of an Antidegradation Implementation Method" set forth at p. 54529. Unless delegated programs 

are consistently failing to implement antidegradation requirements adequately, or at all, adding a requirement to adopt 

methods as WQS adds an administrative burden and results in unnecessary oversight by EPA. In the District's view, 

there should be a demonstrated need for such a requirement before it is imposed on EPA-delegated programs. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0169-A1.001.002 

Author Name: Letient Henri 

Organization: Teck Alaska Incorporated 

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1. Antidegradation 

• EPA Review Changes to Proposed State Regulations. Teck has been actively involved in Alaska's ongoing initiative to 

develop antidegradation implementation procedures. The State sponsored a collaborative work-group process involving 

various stake-holders, and held a series of meetings. We are now awaiting the State's notice of draft regulations for 

public comment (anticipated by year's end). Even though not required by federal law, the State has elected to issue its 

implementation procedures as regulations. The State may submit implementation procedure regulations to EPA for 

approval before EPA has taken final action on EPA's own proposed rulemaking. Teck is concerned that the State's 

approval process with EPA will be delayed by this (EPA's) rulemaking, if EPA holds approval of pending regulatory 

packages in abeyance pending final action on this rulemaking. Teck strongly believes that EPA should judge any 

submission from the State on the basis of EPA regulations that are in effect at the time of submission, rather than 

proposed regulations that may (or may not) take effect at some point in the future. 

• EPA Approval of Implementation Procedures. Teck agrees with EPA's proposal (as set out in Section Ill, E part 3 of 

the preamble) to require that the public have an opportunity to review a state's implementation procedures before they 

become final. However, Teck does not support requiring that such procedures be adopted as regulations. See 78 Fed. 

Reg. 54529. This would be an unnecessary and burdensome requirement because these implementation methods are 

included in many states' Continuing Planning Process (CPP), which under CWA Section 303(e), 33 U.S.C. § 1313(e), 

must be submitted to EPA for review whenever changes are made. See 40 CFR 130.10(b)(1). According to EPA (78 

Fed. Reg. 54529), approximately one-half of the states include their was implementation procedures (including 

antidegradation implementation methods) in their CPP submittals to EPA. 

The proposed language at 40 CFR 131.12(b) that requires states to "develop and make available to the public 

statewide methods for implementing the antidegradation policy adopted pursuant to paragraph (a) of this section" is 

sufficient to assure that states provide the public with an opportunity to comment on the implementation methods. 

Requiring these methods to be included in the was regulation does not offer any additional benefit in terms of EPA and 

public input but would add a substantial administrative burden for states that currently rely on the CPP for their 

antidegradation implementation methods. Because CPP revisions do not go through formal state rulemaking 

procedures, the states have more flexibility to modify methods as needed to address implementation issues as they are 

identified. The was are revised only triennially (states often do not meet this schedule and EPA often takes years to 

review and approve revised was), while the CPP can be revised whenever necessary, even multiple times in a year. 

Given the complexity of antidegradation implementation policies, states need the flexibility offered by the use of the 

CPP as the repository of such policies. 

States must have their was rules approved by EPA and the Agency has the opportunity to require states to have 

antidegradation rules that are consistent with 40 CFR 131. However, many states do not adopt any of their was 

implementation procedures as part of their WQS regulations and there is no justification for making an exception for a 

state's antidegradation implementation procedures. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

08/04/2015 05:01 PM EDT 2-771 
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7.f.i: Section A 

7.f.i: Section F 

Comment ID 0171-A2.001.012 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

Anti-Degradation Implementation Methods 

The proposed rule states: 

(b) The State shall develop and make available to the public statewide methods for implementing the antidegradation 

policy adopted pursuant to paragraph (a) of this section. A State's antidegradation implementation methods shall be 

designed to achieve antidegradation protection consistent with paragraph (a) of this section. Such methods must 

ensure that: 

(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body basis at the 

State's discretion, but must not exclude any water body from high quality water protection solely because not all of the 

uses specified in CWA section 101 (a)(2) are attained; and 

(2) The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this 

section, after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading 

practicable alternatives that have the potential to prevent or minimize the degradation associated with the proposed 

activity. If the State can identify any practicable alternatives, the State must choose one of those alternatives to 

implement when authorizing a lowering of high water quality. 

Analogous to the proposed UAA language, EPA is proposing the creation of yet another level of regulation where there 

does not appear to be a problem to be addressed. 

The current version of 40 C. F. R. § 131.12 already directs the states to adopt a statewide antidegradation policy and 

"identify the methods for implementing such a policy." The existing regulations mandate that both the antidegradation 

policy and the "implementation methods" must be consistent with paragraphs 131.12(a)(1) through (4), which set out 

the substantive requirements of an antidegradation provision. 

The application and implementation of state water quality standards is addressed in existing regulations at 40 C.F.R. § 

131.13, which states: 

States may, at their discretion, include in their State standards, policies generally affecting their application and 

implementation, such as mixing zones, low flows and variances. Such policies are subject to EPA review and approval. 

(Emphasis added). 

In summary, not only are the implementation policies clearly mandated under current EPA regulations, they are also 

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subject to EPA review and approval. 

The proposed language is very prescriptive (and proscriptive) and further erodes the limited discretion retained by the 

states. The proposed alternatives analysis is particularly onerous and essentially forces the states to perform a use 

attainability analysis when implementing State antidegradation provisions. Mandating that the states must choose any 

practicable alternative is a level of federal oversight that falls just short of federal implementation of the states' water 

quality programs and is contrary to the state/federal partnership concept that is the basis for cooperative federalism 

under the Clean Water Act. 

EPA has failed to articulate a problem with state antidegradation policies that must be solved, much less a problem that 

justifies the additional, and very prescriptive, federal mandates that are proposed. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section L 

3.a 

12.a 

Comment ID 0173-A1.001.012 

Author Name: Borkowski Winston 

Organization: Hopping Green & Sams on behalf of CF Industries, Inc. 

Anti-Degradation Implementation Methods 

The proposed rule states: 

(b) The State shall develop and make available to the public statewide methods for implementing the antidegradation 

policy adopted pursuant to paragraph (a) of this section. A State's antidegradation implementation methods shall be 

designed to achieve antidegradation protection consistent with paragraph (a) of this section. Such methods must 

ensure that: 

(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body basis at the 

State's discretion, but must not exclude any water body from high quality water protection solely because not all of the 

uses specified in CWA section 101 (a)(2) are attained; and 

(2) The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this 

section, after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading 

practicable alternatives that have the potential to prevent or minimize the degradation associated with the proposed 

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activity. If the State can identify any practicable alternatives, the State must choose one of those alternatives to 

implement when authorizing a lowering of high water quality. 

Analogous to the proposed UAA language, EPA is proposing the creation of yet another level of regulation where there 

does not appear to be a problem to be addressed. 

The current version of 40 C. F. R. § 131.12 already directs the states to adopt a statewide antidegradation policy and 

"identify the methods for implementing such a policy." The existing regulations mandate that both the antidegradation 

policy and the "implementation methods" must be consistent with paragraphs 131.12(a)(1) through (4), which set out 

the substantive requirements of an antidegradation provision. 

The application and implementation of state water quality standards is addressed in existing regulations at 40 C.F.R. § 

131.13, which states: 

States may, at their discretion, include in their State standards, policies generally affecting their application and 

implementation, such as mixing zones, low flows and variances. Such policies are subject to EPA review and approval. 

(Emphasis added). 

In summary, not only are the implementation policies clearly mandated under current EPA regulations, they are also 

subject to EPA review and approval. 

The proposed language is very prescriptive (and proscriptive) and further erodes the limited discretion retained by the 

states. The proposed alternatives analysis is particularly onerous and essentially forces the states to perform a use 

attainability analysis when implementing State antidegradation provisions. Mandating that the states must choose any 

practicable alternative is a level of federal oversight that falls just short of federal implementation of the states' water 

quality programs and is contrary to the state/federal partnership concept that is the basis for cooperative federalism 

under the Clean Water Act. 

EPA has failed to articulate a problem with state antidegradation policies that must be solved, much less a problem that 

justifies the additional, and very prescriptive, federal mandates that are proposed. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section L 

3.a 

12.a 

Comment ID 0174-A2.001.002 

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Chapter 2 - Comment Documents Antidegradation 

Author Name: Peoples Zachary 

Organization: Dallas Water Utilities 

The Environmental Protection Agency (EPA) has proposed changes in various areas of the Water Quality Standards. 

Our comments and center of interest is in the three following areas: 

-Anti degradation implementation methods 

-Triennial review scope and requirements 

-Variances to water quality standards 

Anti Degradation Implementation Methods 

The EPA has requested comments on whether the regulation should be amended to require implementation methods to 

be adopted by rule and to specify minimum requirements. The City of Dallas does not support such a stringent 

approach. We encourage the EPA to review the approach adopted by Texas in the Texas Surface Water Quality 

Standards (Texas Standards) and the separate procedures used to implement the Texas Surface Water Quality 

Standards (Implementation Procedures) as they effectively address the issues of concern to the EPA. In the water 

quality standard regulations, the Texas Commission of Environmental Quality (TCEQ) includes about 2 1/2 pages in 

Title 30 TAC Chapter 307.5 that identifies tiers and the objectives of the anti-degradation review for each tier. Further, 

separate implementation procedures (Regulatory Guidance RG-194) contain about 14 pages of detailed information on 

how to implement these processes. 

The provisions in the Texas Standards demonstrates a balance between establishing a framework for implementation 

of the anti-degradation policy and ensuring that the regulations are not overburdened with so much detail that flexibility 

is lost. The Texas program is a good example of how to structure a State's anti-degradation policy. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0175-A1.001.014 

Author Name: Canton Steven 

Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd. 

4.0 Antidegradation Implementation 

Section 131.12 Antidegradation Policy and Implementation Methods 

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Chapter 2 - Comment Documents Antidegradation 

EPA is proposing to amend this section in several ways, including: 1) "clarifying" the options for identifying Tier 2 high 

quality waters, 2) requiring the use of an alternatives analysis in order to support decisions whether to allow limited 

degradation of high quality water, and 3) specifying that antidegradation implementation methods and policies be made 

available to the public. Additionally, 131.5 would give EPA the authority to review and approve or disapprove the 

antidegradation implementation methods and policies. 

a. We believe that the revisions in this section go too far in transferring the responsibility of devising and implementing 

antidegradation policy from the states and tribes to the EPA. Requiring EPA review and approval of all antidegradation 

methods and policies (as specified in 131.5) will be a very expensive and time-consuming process and will hinder states 

from applying antidegradation policies while waiting for EPA authorization. More importantly, states have differing 

antidegradation policies and implementation strategies that they have developed for their state-specific situations, 

allowing for flexibility that would be greatly harmed by the proposed rule change. EPA's attempt to impose a "one size 

fits all" antidegradation policy across the country will inappropriately limit the ability of states and tribes to create and 

apply policies and practices that work best for their state. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0176-A2.001.010 

Author Name: Lazarus Jay 

Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM) 

Antidegradation 

DPNM opposes a revision to the antidegradation regulation at 40 CFR 131.12 that would unnecessarily require states 

and tribes to adopt antidegradation implementation methods as existing WQS provide sufficient water quality protection. 

Tier 2 water designation already maintains and protects "high quality" waters. EPA should recognize existing Tier 2 

water body protection and not add unnecessary burden to the states or regulated community. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0176-A2.001.012 

08/04/2015 05:01 PM EDT 2-776 
Chapter 2 - Comment Documents Antidegradation 

Author Name: Lazarus Jay 

Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM) 

DPNM supports specificity in regulation that states and tribes are not required to adopt antidegradation implementation 

method as WQS. Antidegradation should not be required as part of a WQS. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0177-A2.001.005 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

(4) Antidegradation 

EPA is proposing several changes to 131.12 regarding implementing antidegradation requirements. EPA also seeks 

feedback on whether federal regulations should be changed to mandate that States adopt antidegradation 

implementation procedures in state WQS. 

The EPA proposal appears to presume that states have adopted an antidegradation policy in state regulation. 

NYSDEC's comments-regarding antidegradation are in the context that New York has adopted an antidegradation 

policy which has been approved by EPA, though the policy is not incorporated into state regulation. NYSDEC's current 

understanding is that its antidegradation policy, established by NYSDEC Commissioner in 1985 and approved by EPA, 

meets the federal requirement for state adoption of an antidegradation policy. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section E 

Comment ID 0177-A2.001.008 

Author Name: Klotz Mark 

08/04/2015 05:01 PM EDT 2-777 
Chapter 2 - Comment Documents Antidegradation 

Organization: New York State Department of Environmental Conservation 

c) Implementation Procedures. EPA proposes to specify in 131.12 that States must develop and make available to the 

public their antidegradation implementation methods. EPA further seeks feedback on whether EPA should require that 

States adopt such methods in state regulation. 

NYSDEC strongly opposes any requirement that states must promulgate antidegradation procedures into state 

regulation. In New York, protection against antidegradation is a fundamental element of our water program. 

Antidegradation procedures are woven through a large network of existing state law, regulation, and policy. 

Forced promulgation of antidegradation implementation methods into New York's regulations is not mandated by the 

Clean Water Act, would not add protection, and could remove flexibility that the current New York approach provides to 

focus limited resources on aspects of protection that are most needed. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0179-A2.001.004 

Author Name: Spotts David 

Organization: Pennsylvania Fish and Boat Commission 

Additionally, the PFBC agrees that antidegradation implementation methods should be adopted as Water Quality 

Standards (WQS) and subject to formal review by the EPA to insure consistency with the CWA. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0180-A2.001.011 

Author Name: Hobson Chris 

Organization: Southern Company 

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Chapter 2 - Comment Documents Antidegradation 

C. Implementation Methods 

Southern Company agrees that a state's antidegradation implementation methods should be accessible to the public, 

including to permit applicants that are required to undergo antidegradation review. But we do not believe that it would 

be appropriate to require states to incorporate these methods into their water quality standards regulations. Each state 

has a different set of administrative rules and procedures, and on this basis, there is wide variation across the country in 

terms of whether a state adopts its implementation methods by regulation, guidance or technical policy. For this reason, 

we believe that EPA should defer to states to adopt methods that best match their state rules and procedures, rather 

than dictate a form and process as a matter of federal law. As a result, we support EPA's "may, but not required" option 

as presented at 78 Fed. Reg. 54529 col. 2 ("Alternatively, EPA is considering and requesting comment on whether the 

EPA should specify that states and tribes may, but are not required to, adopt antidegradation implementation methods 

as WQS."). 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section C 

Comment ID 0181-A2.001.008 

Author Name: Sims Shaun 

Organization: Wyoming Association of Conservation Districts 

Page 54525 – E. Antidegradation Implementation: The EPA is also proposing to add language to 131.5(a) describing
 

the EPA's authority to review and approve or disapprove state-adopted or tribal-adopted anitdegradation policies.
 

And.. Page 545256 - Antidegradation plays a critical role in allowing states and tribes to maintain and protect the
 

valuable resource o high quality water by ensuring that decisions to allow a lowering of high quality water are made in a
 

transparent public manner and are based on a sound technical record.
 

COMMENT:
 

A review of state adopted or tribal adopted antidegradation policies may be appropriate however WACD does not
 

support including an EPA approval process. This is appropriately left at the State's determination.
 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

08/04/2015 05:01 PM EDT 2-779 
Chapter 2 - Comment Documents Antidegradation 

Comment ID 0181-A2.001.010 

Author Name: Sims Shaun 

Organization: Wyoming Association of Conservation Districts 

Page 54529 – E. Antidegradation Implementation: 3. The EPA Proposal – Part 3: Developing and Making Available to
 

the Public Antidegradation Implementation Methods: the EPA is considering and requesting comment on whether the
 

EPA should include a requirement that antidegradation implementation methods be adopted as WQS and thus subject
 

to the EPA's review and approval or disapproval.
 

COMMENT:
 

EPA should not include a requirement that antidegradation implementation methods be adopted as WQS.
 

Page 54529 -The EPA is thus alternatively considering and requesting comment on whether to specify in rule that
 

states and tribes may, but are not required to, adopt antidegradation implementation methods as WQS subject to EPA
 

approval. In this case, states and tribes must develop antidegrdation implementation methods, and must make them
 

available to the public, but they would not be subject to EPA review and approval or disapproval unless the state or
 

tribes chose to formally adopt them as WQS.
 

COMMENT:
 

WACD recommends that EPA specify in rule that states and tribes may, but are not required to, adopt antidegradation
 

implementation methods as WQS subject to EPA approval.
 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0184-A2.001.027 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

Therefore, WESTCAS recommends that the proposal be modified as follows: 

• § 131.12 Antidegradation Policy and Implementation Methods. 

(a)(2) . . . Further, the state shall ensure that there shall be achieved the highest statutory and regulatory requirements 

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for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint 

source control. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0185-A1.001.009 

Author Name: Poltak Ronald 

Organization: New England Interstate Water Pollution Control Commission 

Antidegradation Implementation 

EPA is proposing to amend several provisions of §131.12 related to implementing the antidegradation requirements and 

seeks comment on whether EPA should require that state and tribal antidegradation implementation methods be 

included in state and tribal regulations. The NEIWPCC states strongly oppose this requirement because it would not 

add protection and could remove the flexibility of an approach that allows states to focus on aspects of protection that 

are most needed. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0186-A1.001.009 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

• EPA should not require states to include antidegradation implementation methods in their WQS rules. Requiring the 

methods to be subject to public review and comment satisfies the requirements of the CWA. 

• EPA has underestimated the economic and workload burden for states to adopt antidegradation implementation 

methods as part of their WQS rules. 

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7.f.i 

Chapter 2 - Comment Documents Antidegradation 

Response 

For response to this comment, see the following response essay(s): 

7.f.i: Section A 

Comment ID 0186-A1.001.025 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

Part 3: Developing and Making Available to the Public Antidegradation Implementation Methods (78 Fed. Reg. 54529-

54530) 

EPA's proposal for public and agency review of state antidegradation implementation methods is consistent with its 

previous interpretations of the WQS rule. 

API has no objections regarding clarification of public review and comment on states' antidegradation implementation 

policies. 

EPA should not require states to include antidegradation implementation methods in their WQS rules. Requiring the 

methods to be subject to public review and comment satisfies the requirements of the CWA. 

EPA requests comments on whether states should be required to include their antidegradation implementation methods 

in their WQS rules (78 Fed. Reg. 54529). This would be an unnecessary and burdensome requirement because these 

implementation methods are included in many states' Continuing Planning Process (CPP)[CWA Section 303(e)] which 

must be submitted to EPA for review whenever changes are made [40 CFR 130.10(b)(1)]. According to EPA (78 Fed. 

Reg. 54529), approximately one-half of the states include their WQS implementation procedures (including 

antidegradation implementation methods) in their CPP submittals to EPA. 

The proposed language at 40 CFR 131.12(b) that requires states to "develop and make available to the public 

statewide methods for implementing the antidegradation policy adopted pursuant to paragraph (a) of this section" is 

sufficient to assure that states provide the public with an opportunity to comment on the implementation methods. 

Requiring these methods to be included in the WQS regulation does not offer any additional benefit in terms of EPA and 

public input but would add a substantial administrative burden for states that currently rely on the CPP for their 

antidegradation implementation methods. Because CPP revisions do not go through formal state rulemaking 

procedures, the states have more flexibility to modify methods as needed to address issues in implementation as they 

are identified. The WQS are revised only triennially (states often do not meet this schedule and EPA often takes years 

to review and approve revised WQS), while the CPP can be revised whenever necessary, even multiple times in a year. 

Given the complexity of antidegradation implementation policies, states need the flexibility offered by the use of the 

CPP as the repository of such policies. 

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For these reasons, API strongly opposes any regulation that would require states to include their antidegradation 

implementation procedures in their WQS rules. States must have their WQS rules approved by EPA and the Agency 

has the opportunity to require states to have antidegradation rules that are consistent with 40 CFR 131. However, many 

states do not adopt any of their WQS implementation procedures as part of their WQS regulations and there is no 

justification for making an exception for a state's antidegradation implementation procedures. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section C 

Comment ID 0187-A1.001.005 

Author Name: Allmon Eric 

Organization: Lowerre, Frederick, Perales, Allmon & Rockwell on behalf of Lone Star Chapter of the Sierra Club 

Tier 2 Anti-degradation 

EPA should include a requirement that anti-degradation implementation methods be adopted as WQS subject to EPA 

review and approval or disapproval. In doing so, EPA should set forth more specific standards to limit the manner in 

which a state may implement a significance threshold that would exempt regulatory actions from the alternatives 

analysis of a Tier 2 review. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

7.i 

Comment ID 0188-A2.001.004 

Author Name: Ehm William 

Organization: Iowa Department of Natural Resources 

3. Regarding Section §131.12 Antidegradation Policy and Implementation Methods: 

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• States should retain the discretion of establishing site-specific implementation methods, and these should not be part 

of the water quality standards nor should they require EPA approval. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0190-A1.001.007 

Author Name: Wagener Fritz 

Organization: NA 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

131.12(b): "The State shall develop and make available to the public statewide methods for implementing the 

antidegradation policy adopted pursuant to paragraph (a) of this section. [begin new text] The State shall provide for 

public participation during the development or revision of such implementation methods. [end new text]" 

On page 54529 of the preamble, EPA states: 

"The CWA at section 101(e) specifically states that "public participation in the development, revision, and enforcement 

of any regulations, standard, effluent limitation, plan, or program established . . . under this Act shall be provided for, 

encouraged, and assisted. . . ." The EPA encourages states and tribes to provide a robust and transparent process for 

developing and making available to the public their antidegradation implementation methods and for implementing 

those methods in specific cases." 

Proposed 131.12(b) does not "provide for" public participation in the development or revision of antidegradation 

methods, as it only requires a state to "make available" the antidegradation implementation methods after development. 

The suggested addition mirrors the requirements of 101(f) in relation to state development of a plan to implement its 

antidegradation policy. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section C 

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Chapter 2 - Comment Documents Antidegradation 

Comment ID 0191-A2.001.005 

Author Name: Hirst Barbara 

Organization: New Jersey Department of Environmental Protection 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

Implementation: While NJDEP encourages public transparency regarding states' implementation methods, there is 

concern regarding the requirement in the revised rule language which mandates the implementation provisions be 

adopted into a state's water quality standards rules. While having the implementation methods in the state's WQS rule 

is an option that may be preferred in some states, it is not mandated by the Act to be in the state's WQS. Therefore 

states/authorized tribes should have the flexibility to implement antidegradation provisions through other water 

programs and/or regulations such as water quality management planning rules, stormwater management rules, etc. 

NJDEP supports the comments submitted by ACWA on the antidegradation implementation. Further, it should be 

acknowledged that such procedures must necessarily avoid being overly proscriptive in order to accommodate the 

range of local circumstances that may occur from site to site. 

Suggested revisions as proposed by ACWA: § 131.12(b) The State shall [begin strikeout] develop [end strikeout] [begin 

new text] describe [end new text] and make available to the public statewide methods for implementing the 

antidegradation policy adopted pursuant to paragraph (a) of this section. A State's antidegradation implementation 

methods [begin strikeout] shall be designed to [end strikeout] achieve antidegradation protection consistent with 

paragraph (a) of this section [begin strikeout] . [end strikeout] [begin new text] if/when [end new text] such methods 

[begin strikeout] must [end strikeout] ensure that: 

§ 131.5(a)(3) Whether the State has adopted [begin strikeout] an [end strikeout] antidegradation [begin strikeout] policy 

[end strikeout] [begin new text] requirements [end new text] consistent with § 131.12 [begin strikeout] (a), and if the 

State has chosen to adopt implementation methods, whether those implementation methods are consistent with § 

131.12 [end strikeout]; 

Response 

For response to this comment, see the following response essay(s): 

7.f.i: Section A 

Comment ID 0192-A1.001.005 

Author Name: Reeder Thomas 

Organization: North Carolina Department of Environment and Natural Resources 

08/04/2015 05:01 PM EDT 

7.f.i 

2-785 
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[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

II. Antidegradation Policy and Implementation Methods 

1) Antidegradation Implementation methods should not be required to be adopted into state law 

NC DWR does not support a requirement that implementation methodologies be adopted into state law. As this 

requirement was included to provide transparency and clarity, we suggest that other mechanisms could achieve the 

objective without additional state rule making. One suggestion would be to modify the EPA-generated application form 

to include clarifying statements as additional proof/steps considered in the "antidegradation review". Also, NC DWR 

does not believe that this requirement would necessarily improve water quality management. As the adoption of 

implementation methodologies is not mandated by the Act, and rulemaking in the state is extremely time-consuming, 

we suggest that the language in 40 CFR § 131.12(b) be modified to read "The State shall [begin new text] describe [end 

new text] and make available to the public statewide methods for implementing the antidegradation policy adopted 

pursuant to paragraph (a) of this section. A State's antidegradation implementation methods achieve antidegradation 

protection consistent with paragraph (a) of this section [begin new text] when [end new text] such methods ensure 

that...." 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0194-A1.001.013 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

Finally, the Chamber objects to the proposal set forth in Section 131.5(a)(3) [FN1] that EPA must review and approve of 

all state antidegradation implementation policies in the same manner that it reviews and approves of state water quality 

standards. This is a significant move toward federalizing state implementation policies, undermining the primary role of 

states in fashioning their state standards and developing their own antidegradation policies and implementation 

procedures. 

[FN1] The Chamber likewise opposes the addition of the phase "based on sound scientific rationale" in Section 

131.5(a)(2). As currently drafted, presumably states proposing the adoption of criteria must provide a basis for the 

proposed adoption and demonstrate that it will be protective of designated uses. This type of revision will simply lead to 

new EPA guidance defining what it meant by "sound scientific rationale," incrementally limiting state discretion. States 

should be able to make and provide support for their proposals. EPA need not (and should not) add an undefined term 

that will undoubtedly spur the development of a lengthy new EPA guideline defining what a state must do in order to 

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present a "sound scientific rationale." 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section M 

7.m 

10.a 

Comment ID 0196-A1.001.013 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

EPA Approval and Minimum Implementation Requirements 

EPA should not require states to include anti-degradation implementation methods as part of their WQS submissions 

for EPA review. States clearly are best situated to make assessments of local conditions, and are already required to 

ensure that their policies are consistent with the CWA. Mandating states to submit their implementation methods to EPA 

for approval would effectively usurp that authority, and add a superfluous layer of bureaucracy to the regulatory 

process. 

Importantly, under CWA Sec. 303(c)(2)(A), a "revised or new water quality standard" submitted to EPA for approval 

"shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters 

based upon such uses." The CWA only mentions anti-degradation policies in Sec. 303(d)(4), which states that changes 

to effluent limitations, water quality standards and permitting standards may be made "only if such revision is subject to 

and consistent with the anti-degradation policy established under this section." States' anti-degradation policies are 

included in water quality standards submissions subject to EPA review, and this reflects the maximum extent of EPA's 

authority over state anti-degradation policies under the CWA. Elements of implementation procedures are properly and 

most efficiently left to the states. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.m 

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Comment ID 0197-A1.001.014 

Author Name: Garrison Naoh 

Organization: Natural Resources Defense Council 

Finally, NRDC supports EPA's inclusion in the Proposed Rule of provisions that would require states to develop and 

make public antidegradation implementation procedures. (78 Fed. Reg. 54,529.) We would support additional 

provisions requiring that implementation procedures or measures be formally adopted and subject to EPA review as 

well. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

7.f.i: Section C 

Comment ID 0198-A1.001.007 

Author Name: Card Bethany 

Organization: Massachusetts Department of Environmental Protection 

Antidegradation Implementation Methods 

EPA's proposed language: "(b) The State shall develop and make available to the public statewide methods for 

implementing the antidegradation policy adopted pursuant to paragraph (a) of this section" could be read to require 

states to include or reference their antidegradation implementation methods in their state WQS. EPA should clarify what 

is being required. Further, if EPA's regulation would not require states to include their antidegradation implementation 

methods in state WQS, then will states be required to subject their implementation methods to the same public review 

and approval process as state WQS? If not, then what would constitute an acceptable public review and approval 

process? 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section H 

Comment ID 0199-A1.001.013 

08/04/2015 05:01 PM EDT 2-788 
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Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 

c. Develop and make publicly available the implementation methods for antidegradation policies 

EPA is proposing to add paragraph (b) to 40 CFR § 131.12 requiring states and tribes to develop and make publicly 

available "antidegradation implementation methods to improve program implementation, ensure consistency with the 

CWA, and provide transparency as to applicable state and tribal-adopted antidegradation policies." [FN9] We support 

this proposed change as a way to improve public participation and transparency in the antidegradation program. 

EPA is also considering what changes it should make to EPA review of antidegradation implementation methods under 

40 CFR § 131.5(a). EPA is seeking comments on whether it should require or merely suggest that states or tribes adopt 

antidegradation implementation methods as WQS. In its Federal Register notice, EPA has articulated several reasons 

supporting a requirement for states to adopt antidegradation implementation methods as WQS, including positive 

implications for National Pollutant Discharge Elimination System ("NPDES") permits, better public information and 

participation, and clearer information for the regulated community. We agree with EPA's rationale and encourage EPA 

to require (rather than simply allow) states and tribes to adopt antidegradation implementation methods as WQS so that 

these methods are subject to EPA review and approval. Adopting this as a requirement rather than a recommendation 

is especially important in states like North Carolina, which has a law barring environmental protections that are stronger 

than the minimum federal baseline. If EPA does not make this a requirement, environmental managers in places like 

North Carolina may be prevented from adopting antidegradation implementation methods as WQS. EPA can make the 

component mandatory while still allowing some room for states to tailor policies to meet local needs, which the 

proposed rules allow. 

[FN9] Id. at 54,529. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0200-A1.001.009 

Author Name: Covar Zak 

Organization: Texas Commission on Environmental Quality 

In the preamble to the proposed revisions to §131.12(b), EPA solicits comment on whether antidegradation 

implementation procedures should be incorporated into state water quality standards. TCEQ does not support this 

proposed change because TCEQ's antidegradation procedures include descriptions, discussions, and examples that 

would be inappropriate for adoption in rule format. Importantly, TCEQ Implementation Procedures are subject to 

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Chapter 2 - Comment Documents Antidegradation 

stakeholder input and public comment. 

Further, EPA has recently indicated that some of the existing TSWQS provisions that address permitting of wastewater 

discharges or assessing standards attainment are procedural in nature, and these provisions are therefore not 

approved as part of the state's water quality standards. For EPA to require antidegradation procedures in state water 

quality standards would be contradictory to this EPA position. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section F 

Comment ID 0201-A1.001.022 

Author Name: Godfrey Mike 

Organization: Alabama Power 

Developing and Making Available to the Public Antidegradation Implementation Methods 

EPA has specifically requested comments regarding whether it should promulgate a requirement that antidegradation 

methods be adopted as WQS, subject to EPA review and approval; or, whether the agency should specify in its 

regulations that States may, but are not required to, adopt antidegradation implementation methods as WQS. As 

explained below, Alabama Power believes EPA should not address this topic through any regulation. At most, EPA 

should provide that States may, but are not required to, adopt antidegradation implementation methods as WQS. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0202-A2.001.011 

Author Name: Frederick Kevin 

Organization: Wyoming Department of Environmental Quality/Water Quality Division 

Antidegradation 

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Implementation Methods 

The EPA is proposing to add to 131.5(a)(3) that the EPA review "Whether the State has adopted an antidegradation 

policy consistent with § 131.12(a), and that if the State has chosen to adopt implementation methods, whether those 

implementation methods are consistent with § 131.12" and is proposing to add to 131.12(b) that "The State shall 

develop and make available to the public statewide methods for implementing the antidegradation policy adopted 

pursuant to paragraph (a) of this section. A State's antidegradation implementation methods shall be designed to 

achieve antidegradation protection consistent with paragraph (a) of this section." These two statements are 

contradictory in that 131.5(a)(3) suggests that states may adopt implementation methods, while 131.12(b) describes 

that states shall develop implementation methods. The summary in Section E on page 54525 of the Federal Register 

Vol. 78, No. 171 describes the change to the regulation as "specifying that states and tribes must develop and make 

available to the public implementation methods for their antidegradation policies." The EPA's intentions are unclear on 

this matter; does the EPA intend to require implementation methods or not? Does the EPA intend to require adoption of 

implementation methods into standards or not? States vary considerably in how they address antidegradation, either 

through rule, through rule and implementation methods, or solely through implementation methods. Wyoming currently 

has antidegradation provisions within its water quality standards as well as an Antidegradation Implementation Policy. 

WDEQ/WQD would like to maintain this system and therefore recommends that EPA not require states to adopt 

implementation methods into rule or require states to adopt implementation methods at all. As such, WDEQ/WQD 

recommends that EPA modify the regulations to provide states with flexibility in how they address antidegradation and 

specify in the proposed revisions that states and tribes are not required to adopt antidegradation methods as water 

quality standards. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section H 

Comment ID 0203-A1.001.016 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

D. EPA Should Not Prescribe or Review State Antidegradation Procedures 

EPA is considering whether to require state antidegradation implementation procedures to be defined as "water quality 

standards" so that EPA would have to review and approve them. UWAG opposes such a change to the regulations. 

The change would give EPA enormous influence in setting state implementation procedures, contrary to the principle 

that states have primary responsibility. Nothing in the Clean Water Act suggests that an "antidegradation policy" is 

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supposed to be a federally-dictated policy rather than a state one. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.m 

Comment ID 0203-A1.001.018 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

In short, EPA is proposing first to write implementation methods for the states and then to review the states' adoption of 

them to make sure the states get them right. This in essence federalizes state antidegradation policies. This is a major 

change - and one EPA may not lawfully make. As the Federal Water Quality Coalition comments point out, except for 

the provisions specific to the Great Lakes, the Clean Water Act hardly mentions "antidegradation." Congress clearly did 

not intend to have EPA write and approve the state programs. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section N 

7.m 

Comment ID 0204-A1.001.004 

Author Name: Thomas John 

Organization: Law office of John R. Thomas on behalf of Chassahowitzka River Restoration Committee, et al. 

The EPA Proposal-Part 3: Developing and Making Available to the Public Antidegradation Implementation Methods 

The Interest Groups support EPA's proposed amendments to 40 CFR 131.12 and 131.5(a). EPA must require 

antidegradation implementation methods to be adopted by the States and Tribes as WQS so that they are clearly 

subject to the EPA's review and approval or disapproval. As explained below, the Interest Groups are concerned that 

Florida's inadequate implementation methods may remain beyond review by EPA and otherwise unless they are 

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adopted as WQS. 

Section 131.12(b) must require States and Tribes to adopt antidegradation implementation methods that identify all of 

the activities that are subject to antidegradation policy review, and such activities must not be limited to activities 

requiring an NPDES permit. Antidegradation review must reach non-point source pollution, stormwater pollution, water 

withdrawals that effect water quality, water transfers that effect water quality, best management practices (BMPs), and 

activities a State or Tribe proposes to exempt from permitting. No waterbodies, watercourses or activities may be 

excepted from antidegradation policy and review for compliance with antidegradation policy. See, 40 C.F.R. §131.12; 

40 C.F.R. §130.7(b)(3); Kentucky Waterway Alliance, 540 F.3d 466, at 484-85 (6th Cir. 2008). 

In Florida, the most significant antidegradation implementation provisions are Florida Administrative Code (FAC) Rules 

62-302.700 and 62-4.242. Copies are attached as Attachment C.[0204-A1.001.009] FAC Rule 62-302.700, "Special 

Protection, Outstanding Florida Waters, Outstanding National Resource Waters," provides in relevant part: 

(1) It shall be the Department policy to afford the highest protection to Outstanding Florida Waters and Outstanding 

National Resource Waters. No degradation of water quality, other than that allowed in subsections 62-4.242(2) and (3), 

F.A.C., is to be permitted in Outstanding Florida Waters and Outstanding National Resource Waters, respectively, 

notwithstanding any other Department rules that allow water quality lowering.

 .... 

(7) The policy of this section shall be implemented through the permitting process pursuant to Rule 62-4.242, F.A.C. 

(emphasis in bold added) 

While subsection 1 appears to be comprehensive and absolute in its prohibition of degradation of water quality in 

Outstanding Florida Waters (OFW), subsection 7 limits the implementation of the policy to permitting decisions under 

FAC Rule 62-4.242, which controls the Florida Department of Environmental Protection's (DEP) permitting procedures. 

Subsection (7) undermines the OFW antidegradation policy by limiting its implementation and scope. 

Water quantity and other determinations by Florida's water management districts obviously can affect water quality. 

Based on the same rationale as expressed in PUD No. 1 of Jefferson County v. Wash. Dep't of Ecology, et al., 511 U.S. 

700, 713-20 (May 31, 1994), Florida's water quantity decisions must be consistent with antidegradation policy and must 

maintain and protect existing uses, including fish and wildlife instream uses. Florida's antidegradation implementation 

provisions fail to clearly identify the scope of the application of antidegradation policy and/or unlawfully limit such scope, 

resulting in degradation of Florida's OFWs. 

Pursuant to Rule 62-302.700(7), Florida antidegradation policy regarding OFW protection is implemented through Rule 

62-4.242, which provides in relevant part: 

(2) Standards Applying to Outstanding Florida Waters. 

(a) No Department permit or water quality certification shall be issued for any proposed activity or discharge within an 

Outstanding Florida Waters, or which significantly degrades, either alone or in combination with other stationary 

installations, any Outstanding Florida Waters, unless the applicant affirmatively demonstrates that: 

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... 

2. The proposed activity or discharge is clearly in the public interest, and either 

a. A Department permit for the activity has been issued or an application for such permit was complete on the effective 

date of the Outstanding Florida Water designation; or 

b. The existing ambient water quality within Outstanding Florida Waters will not be lowered as a result of the proposed 

activity or discharge, except on a temporary basis during construction. (emphasis in bold added) 

While Rule 62-4.242(2)(a) appears to apply to "any proposed activity or discharge," the Rule is only applied to 

discharge permitting, and the Rule does not expressly and directly limit the decisions of Florida's water management 

districts, only the DEP's. Florida must be required to adopt all antidegradation policy implementation provisions as WQS 

so EPA may review Florida's antidegradation implementation provisions for consistency with the CWA and to ensure 

the implementation provisions do not undermine or even nullify the effect of the policy's provisions. 

Florida's water management districts do not consider themselves to be authorized to implement antidegradation policy. 

During the process leading up to adoption of statutorily required minimum flows and levels for Chassahowitzka and 

Homosassa Springs, Southwest Florida Water Management District staff responded to several commenters that urged 

implementation of Florida's antidegradation policy, as follows: 

Water quality criteria are designed to protect a water body's designated use. Florida's anti-degradation policy, including 

its policy for Outstanding Florida Waters, is designed to prevent worsening of water quality from specified activities 

unless it is found to be in the public interest. Florida's anti-degradation policy does not apply to water quantity decisions 

such as MFLs; instead, it applies to activities that incorporate a discharge of pollutants or dredge and fill activities. 

(emphasis in bold added) 

See Recommended Minimum Flows for the Chassahowitzka River System, July 15, 2012 at p.98; and Recommended 

Minimum Flows for the Homosassa River System, July 15, 2012 at p.183. (Excerpts of these Reports are attached as 

Attachment D) [0204-A1.001.009] The water management district's position is not consistent with PUD No. 1 of 

Jefferson County and would allow degradation of OFW freshwater habitat contrary to antidegradation requirements, 

[FN1] Yet Florida's DEP has not corrected the water management district. Florida's implementation rules must be 

adopted as WQS so that their scope and application may be reviewed and disapproved by EPA. 

In recent years a dialog between EPA Region IV and the State of Florida has addressed the question: "Are Florida 

water quantity decisions consistent with state water quality standards?" In the attached Memorandum, DEP's water 

policy team answered this question carefully, avoiding any commitment to antidegradation policy and protection of 

existing uses, using the terms "protection of designated uses established in state water quality standards" and "protect 

designated uses," as follows: 

"Review of Florida's water use permitting and MFL programs indicate that they are consistent with state water quality 

standards because procedures and rules used to implement these programs are conducted in a manner that result in 

the protection of designated uses established in state water quality standards. Water withdrawals properly authorized 

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under the State's water allocation permitting program will protect designated uses. 

A copy of the April 12, 2012 Memorandum is attached as Attachment E [0204-A1.001.009]. Florida's antidegradation 

policy implementation rules allow the State to choose not to implement antidegradation policy and Florida has taken 

that option, much to the detriment of water quality and existing uses. 

EPA should adopt the proposed revisions to sections 131.5(a) and 131.6(d) to clarify that antidegradation policy 

implementation methods are part of the minimum requirements for a State or Tribe WQS submission to EPA. In Florida 

this is necessary to ensure the implementation methods do not undermine Florida's antidegradation policy. 

Florida's implementation methods must be consolidated in the WQS rule chapter so that they are available and may be 

more readily identified by the public. Current limitations on Florida's implementation must be identified and eliminated. 

The proposed rules would provide a foundation for Florida to move forward with its restoration and maintenance 

objectives. 

[FN1] PUD No. 1 of Jefferson County v. Wash. Dep't of Ecology, et al., 511 U.S. 700, 713-20 (May 31, 1994). 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

7.f.i: Section I 

7.g.iii 

Comment ID 0206-A1.001.013 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

C. Inclusion of Antidegradation Implementation into Water Quality Standards 

Waterkeepers strongly support EPA's proposal "to add paragraph (b) to 40 C.F.R. 131.12 to specify that states and 

tribes must develop and make available to the public antidegradation implementation methods." 78 Federal Register 

54,525. EPA also requested comment on whether it should "include a requirement that antidegradation implementation 

methods be adopted as WQS and thus subject to the EPA's review and approval or disapproval." We strongly urge EPA 

to expressly require states to adopt their antidegradation implementation methods as water quality standards, and 

subject them to formal review and approval by EPA. 

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Many states have antidegradation policies that have not been formally adopted and whose implementation 

methodologies are frequently unknown to the public and the regulatory community. For example, New York's 

antidegradation policy and implementation process are not included in regulations, but instead are set forth in a 1985 

guidance document. [FN7] Similarly, a 2009 River Network Survey of eight western states found that "only five of the 

eight states in the region have the required antidegradation implementation policy developed in rule. Another state 

(Wyoming) has implementation guidance (with Colorado having both an implementation rule and guidance). This 

leaves two states-Idaho and Nevada with no direction at all on how to protect existing water quality for permit writers, 

the public and others." [FN8] 

As the antidegradation requirements can be inadequately enforced, inconsistently applied or lost altogether through a 

state's implementation methods, it is essential that all of state antidegradation policies, standards and implementation 

methods be subjected to public comment and EPA review and approval. States should not be allowed to provide EPA 

with non-binding assurances about how they will implement water quality standards. The public has a right to know how 

the state intends to implement the CWA and to have input into the state's decision-making process. Undisclosed 

promises made by state to the EPA are commonplace, but they are not consistent with sound public policy, the 

requirements of the CWA or the requirements of state Administrative Procedures Acts. States should be required by 

regulation to adopt all antidegradation requirements, including implementation methods, as water quality standards. 

We are concerned that the proposed amendment removes an existing requirement for adoption of implementation 

methods as water quality standards. The nation's first antidegradation policy was released in 1968 and was 

incorporated into EPA's first water quality regulation in 1975. According to EPA's Water Quality Standards Handbook, 

"[a]ntidegradation requirements and methods for implementing those requirements are minimum conditions to be 

included in a State's water quality standards." [FN9] As noted above, many states are not following this requirement 

and, as indicated by the request for comment on whether implementation should be incorporated into WQS, EPA is 

apparently considering removing the requirement, but it has provided no justification for doing so. To the contrary, EPA 

presents the issue as a strengthening of existing requirements. While we strongly support public notice and participation 

in the development of implementation methodologies, we believe that EPA should accomplish this goal by requiring 

adoption of implementation methods in water quality standards that are subject to review and approval by EPA. 

We agree with EPA's statements that "antidegradation implementation methods are an important component of 

implementing antidegradation policies" and that "[f]ormal adoption of implementation methods as WQS, along with EPA 

review under section 303(c) of the Act, would help ensure the consistent and effective implementation of the state or 

tribe's antidegradation provisions so that waters will be maintained and protected in accordance with the objectives of 

the Act." 78 Federal Register 54,529. We further agree that "antidegradation is an essential part of WQS and state and 

tribal approaches to implementing antidegradation requirements may have direct implications for NPDES permits, as 

well as other federal permits and licenses for activities that affect water quality," and we believe that this is the primary 

reason "why the regulations should require states and tribes to formally adopt, after providing an opportunity for public 

involvement, and obtain EPA approval for antidegradation implementation methods." 78 Federal Register 54,530. 

To address the concerns raised herein with what we believe to be a weakening of federal CWA requirements, and to 

ensure that states adopt implementation through a rulemaking and EPA approval process, we recommend adopt the 

following amendment to the proposed language in 40 C.F.R. §131.12(a) and (b): 

(a) The State shall develop and adopt a statewide antidegradation policy and [begin strikeout] identify [end strikeout] the 

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methods for implementing such policy [begin new text] as water quality standards [end new text] pursuant to this 

subpart. The antidegradation policy and implementation methods shall, at a minimum, be consistent with the following: 

(b) The State shall develop [begin new text] , [end new text] [begin strikeout] and [end strikeout] make available to the 

public [begin new text], and adopt [end new text] statewide methods for implementing the antidegradation policy [begin 

strikeout] adopted [end strikeout] pursuant to paragraph (a) of this section. A State's antidegradation implementation 

methods shall be designed to achieve antidegradation protection consistent with paragraph (a) of this section. Such 

methods must ensure that: 

[FN7] See http://www.dec.ny.gov/docs/water_pdf/togs139.pdf. 

[FN8] http://www.rivernetwork.org/cwwpolicyanalysis, Ch. 2, p. 40. 

[FN9] http://water.epa.gov/scitech/swguidance/standards/handbook/chapter04.cfm#section1 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

7.f.i: Section C 

Comment ID 0207-A1.001.029 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

2. Implementation Methods. 

We agree that state antidegradation implementation methods are not water quality standards that must be submitted to 

EPA for approval. Under CWA § 303(c)(2)(A), a "revised or new water quality standard" that must be submitted to EPA 

for approval "shall consist of the designated uses of the navigable waters involved and the water quality criteria for such 

waters based upon such uses." Thus, EPA has no authority to approve state antidegradation implementation methods. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

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Comment ID 0208-A1.001.016 

Author Name: Foster Wade 

Organization: The Fertilizer Institute 

VI. Antidegradation Policy Interpretation 

EPA cannot lawfully delegate itself interpretive authority to decide how other agencies' policies for implementing WQS 

should be applied. The Proposed Rule acknowledges state and tribal authority and "discretion,"[FN24] but the operative 

provisions thereof would unlawfully interfere with their exclusive administrative authorities under the CWA. Specifically, 

under the proposed antidegradation regulations for 40 C.F.R. § 131.12, the Proposed Rule purports to create 

mandatory duties for states and tribes for activities far beyond EPA's jurisdiction. Section 131.12 reads as follows: 

§ 131.12 Antidegradation Policy and Implementation Methods. (a) The State shall develop and adopt a statewide 

antidegradation policy. The antidegradation policy shall, at a minimum, be consistent with the following:

 . . . 

(2) Where the quality of the waters exceed levels necessary to support the protection and propagation of fish, shellfish, 

and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds . . . 

that allowing lower water quality is necessary to accommodate important economic or social development in the area in 

which the waters are located. In allowing such degradation or lower water quality, the State shall ensure water quality 

adequate to protect existing uses fully. Further, the state shall ensure that there shall be achieved the highest statutory 

and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best 

management practices for nonpoint source control. 

. . . 

(b) . . . (2) The State will only make a finding that lowering high water quality is necessary . . . after conducting an 

alternatives analysis that evaluates a range of non-degrading and minimally degrading practicable alternatives that 

have the potential to prevent or minimize the degradation associated with the proposed activity. If the State can identify 

any-practicable [sic] alternatives, the State must choose one of those alternatives to implement when authorizing a 

lowering of high water quality.

 . . . 

As noted above, EPA in the Proposed Rule has proposed stringent requirements for state or tribal antidegradation 

policies. There are several issues with the proposed antidegradation amendments. With respect to review of state and 

tribal implementation of federal antidegradation policy, the Proposed Rule indicates that EPA intends to "review a 

state's or tribe's implementation methods on the basis of ensuring that the methods do not undermine the state's or 

tribe's own antidegradation policy," in the event that some states or tribes opt to adopt implementation methods as 

WQS.[FN25] As noted above, section 303 of the CWA grants states and tribes exclusive authority to establish their own 

WQS, subject to EPA review. However, the CWA does not grant EPA authority to interpret or apply other agencies 

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policies relating to WQS - to the contrary, if EPA "determines that [a WQS] meets the requirements of this chapter [of 

the CWA], such standard shall thereafter be the water quality standard for the applicable waters of that State."[FN26] If 

not, EPA "shall . . . notify the State and specify the changes to meet such requirements" of CWA.[FN27] 

Obviously, Congress's authorization of EPA to review the consistency of state WQS with the CWA, even if "WQS" could 

be defined to include all state policies (which they cannot, as discussed elsewhere in these comments and in ANPC's 

comments), does not authorize EPA to review the consistency of such WQS in light of EPA's interpretation of other 

agencies' policies. Setting aside the numerous issues this would raise under principles of federalism (which EPA 

incorrectly asserts is irrelevant to the current Proposed Rule[FN28]), an interpretation of a statute, regulation, guidance, 

or policy expression only carries weight if "entrusted" to the author by law.[FN29] The CWA does not authorize EPA to 

interpret other agencies' policies or guidances, and EPA likely would be in a very poor position to do so if it did not 

author them. Moreover, the language in the CWA quoted above only provides EPA with certain choices when reviewing 

states' and tribes' WQS, and limits the scope of the review to the terms of the CWA. 

Creating this unprecedented authority to interpret other agencies' policies would leave regulated entities in a delicate 

position: they would be unable to rely on state and tribal interpretations of their own WQS or antidegradation policies, or 

the methods established under those policies, because EPA might disagree with those interpretations. Further, if a 

regulated entity relied upon implementation methods selected by a tribe or a state (e.g., involving the interchange 

between point and nonpoint source controls), and that method was overturned based on the state's or tribe's policy by 

EPA, the regulated entity would need to obtain EPA's own interpretation of possible future implementation methods to 

assess its likely future obligations under the state or tribal program (i.e., after the state or tribe proposed alternative 

methods to satisfy EPA's own interpretation). 

Finally, as a conceptual matter, deeming mere policies or guidance to be "WQS" clashes with the plain meaning of that 

term as used within the CWA.[FN30] Because the CWA vests the authority to develop antidegradation policies in states 

and tribes, and because, as drafted, this element of the Proposed Rule would be an unlawful exercise of authority, the 

Proposed Rule should be modified to express that EPA either will (1) rely on states' or tribes' interpretations of their own 

policies, or (2) rely on the express procedure required by section 303(c)(3) for approving or disapproving WQS based 

on their compliance with the CWA. 

[FN24] See, e.g., id. at 54,522-23, 54,530-32 ("[S]tates and tribes have broad discretion to determine the appropriate 

level of specificity to use in identifying and defining designated uses, and nothing in this proposal is intended to narrow 

that discretion. . . . States and tribes have considerable discretion in how they address each of the elements of 

antidegradation implementation specified in the regulation. . . . States and tribes retain discretion as to whether, when, 

and where to adopt variances."). 

[FN25] Id. at 54,530 (emphasis added). 

[FN26] 33 U.S.C. § 1313(c)(3) (emphasis added). 

[FN27] Id. (emphasis added). 

[FN28] See 78 Fed. Reg. at 54,542. 

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[FN29] See, e.g., Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 844 (1984). 

[FN30] See, e.g., 33 U.S.C. § 1313(a)(1) ("Existing water quality standards") ("In order to carry out the purpose of this 

chapter, any water quality standard applicable to interstate waters which was adopted by any State and submitted to, 

and approved by, or is awaiting approval by, the Administrator pursuant to this Act as in effect immediately prior to 

October 18, 1972, shall remain in effect . . . ."). 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.m 

Comment ID 0211-A1.001.002 

Author Name: Lane David 

Organization: Minnesota Environmental Science and Economic Review Board 

A. EPA should respect states' feedback that draft and interim documents should not be enforced as though they were 

adopted rules - and EPA should communicate this to state regulators. 

The proposed revisions applicable to anti-degradation are especially relevant to point sources in Minnesota, as our own 

state regulators have pursued changes to Minnesota's anti-degradation rules since approximately 2008. [FN2] 

MESERB's membership constitutes a fairly wide range of Minnesota municipalities, from 

Most recently on March 30, 2011, the Environmental Council of the States published a resolution entitled "Objection to 

U.S. Environmental Protection Agency's Imposition of Interim Guidance, Interim Rules, Draft Policy and Reinterpretation 

Policy'' in which it states that the "EPA should minimize the use of interim guidance, interim rules, draft policy and 

reinterpretation policy and eliminate the practice of directing its regional or national program managers to require 

compliance by states with the same in the implementation of delegated programs." [FN3] 

MESERB strongly concurs that the EPA's use of interim guidance, unadopted rules, draft policies and 

"reinterpretations" of existing rules must cease, not only in the context of anti-degradation but in other contexts of Clean 

Water Act regulation pertaining to point sources. [FN4] 

[FN2] A copy of MESERB’s October 31, 2012 comments to the Minnesota Pollution Control Agency (MPCA) are 

attached for EPA’s reference (Appendix A). Although referring to state versus federal rules, many of the policy 

arguments are similar. 

[FN3] 78 Federal Register at 54526. 

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[FN4] See Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) (Appendix B). 

Response 

For response to this comment, see the following response essay(s): 

7.f.i: Section G 

Comment ID 0211-A1.001.006 

Author Name: Lane David 

Organization: Minnesota Environmental Science and Economic Review Board 

3. EPA should steer clear of suggesting that states be bound by their prescribed ranges of degradation alternatives. 

EPA invites comment on whether language should be included to indicate that states may, but need not, adopt their 

anti-degradation implementation methods was water quality standards subject to EPA approval. In MESERB's view, 

EPA should exercise extreme caution with this suggestion. Although EPA's apparent intent is to make such methods 

available to the public – a laudable objective – the suggestion that such methods be adopted into rule could have 

unintended consequences. 

First, states that choose to adopt their chosen ranges of alternatives into rule might find themselves bound, by 

regulatory interpretation or legal challenge, to require implementation of only those alternatives adopted into rule. As 

noted earlier, MESERB applauds any effort by EPA to minimize reliance on unadopted draft policies and guidance 

documents and focus on the language of the Clean Water Act and formally adopted regulations. However, in this 

instance, encouraging states with NPDES designations to consider adoption of implementation methods into rule might 

stifle their ability to consider innovative implementation methods. 

Second, as a corollary to this, innovation itself within the regulated community might be severely hampered in those 

states that choose to adopt implementation methods into rule. Although much work has been done to develop new point 

and nonpoint methods to minimize degradation, there is still much more to learn. In Minnesota, increasingly restrictive 

limits for nutrients and chloride are prompting the regulated community to look for new and innovative alternatives just 

to continue compliance with existing permit limits (and considering cost issues identified above). 

For example, Minnesota is looking at adopting rules to govern pollutant trading. While it remains to be seen what the 

formal proposal will be, the very fact that Minnesota is trying to establish a framework for trading is a step in the right 

direction. If Minnesota were to adopt minimally degrading implementation methods into rule, the temptation would be 

strong to adhere to those and only those identified methods, to the detriment of new and innovative ideas. This would 

have a predictable chilling effect on trading efforts. 

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Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0212-A1.001.011 

Author Name: Norton Kelly 

Organization: Arizona Mining Association 

• Mandatory adoption of implementation procedures as water quality standards: EPA solicits comments as to whether it 

should mandate that states adopt antidegradation implementation procedures as water quality standards subject to 

EPA review and approval, or by contrast whether it should provide that states may but are not required to do this. See 

78 Fed. Reg. at 54529. Although Arizona has to a significant extent put its antidegradation implementation procedures 

into rule (and those rules have been approved by EPA), the AMA supports the latter approach (i.e., allowing but not 

requiring states to do this). States should be left some discretion as to how to develop their antidegradation programs, 

consistent with Congress' recognition of their primary role in protecting water quality within their borders. Moreover, 

even where a state has had implementation procedures approved by EPA, refinements will no doubt be made to those 

procedures over time, and it would be burdensome for Arizona (or any state in a similar position) to have every such 

refinement be subject to EPA approval through the triennial review process. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0215-A1.001.013 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

C. Inclusion of Antidegradation Implementation into Water Quality Standards 

Waterkeepers strongly support EPA's proposal "to add paragraph (b) to 40 CFR 131.12 to specify that states and tribes 

must develop and make available to the public antidegradation implementation methods." 78 Federal Register 54,525. 

EPA also requested comment on whether it should "include a requirement that antidegradation implementation methods 

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be adopted as WQS and thus subject to the EPA's review and approval or disapproval." We strongly urge EPA to 

expressly require states to adopt their antidegradation implementation methods as water quality standards, and subject 

them to formal review and approval by EPA. 

Many states have antidegradation policies that have not been formally adopted and whose implementation 

methodologies are frequently unknown to the public and the regulatory community. For example, New York's 

antidegradation policy and implementation process are not included in regulations, but instead are set forth in a 1985 

guidance document. [FN7] Similarly, a 2009 River Network Survey of eight western states found that "only five of the 

eight states in the region have the required antidegradation implementation policy developed in rule. Another state 

(Wyoming) has implementation guidance (with Colorado having both an implementation rule and guidance). This leaves 

two states––Idaho and Nevada with no direction at all on how to protect existing water quality for permit writers, the 

public and others." [FN8] 

As the antidegradation requirements can be inadequately enforced, inconsistently applied or lost altogether through a 

state's implementation methods, it is essential that all of state antidegradation policies, standards and implementation 

methods be subjected to public comment and EPA review and approval. States should not be allowed to provide EPA 

with non-binding assurances about how they will implement water quality standards. The public has a right to know how 

the state intends to implement the CWA and to have input into the state's decision-making process. Undisclosed 

promises made by state to the EPA are commonplace, but they are not consistent with sound public policy, the 

requirements of the CWA or the requirements of state Administrative Procedures Acts. States should be required by 

regulation to adopt all antidegradation requirements, including implementation methods, as water quality standards. 

We are concerned that the proposed amendment removes an existing requirement for adoption of implementation 

methods as water quality standards. The nation's first antidegradation policy was released in 1968 and was 

incorporated into EPA's first water quality regulation in 1975. According to EPA's Water Quality Standards Handbook, 

"[a]ntidegradation requirements and methods for implementing those requirements are minimum conditions to be 

included in a State's water quality standards." [FN9] As noted above, many states are not following this requirement 

and, as indicated by the request for comment on whether implementation should be incorporated into WQS, EPA is 

apparently considering removing the requirement, but it has provided no justification for doing so. To the contrary, EPA 

presents the issue as a strengthening of existing requirements. While we strongly support public notice and participation 

in the development of implementation methodologies, we believe that EPA should accomplish this goal by requiring 

adoption of implementation methods in water quality standards that are subject to review and approval by EPA. 

We agree with EPA's statements that "antidegradation implementation methods are an important component of 

implementing antidegradation policies" and that "[f]ormal adoption of implementation methods as WQS, along with EPA 

review under section 303(c) of the Act, would help ensure the consistent and effective implementation of the state or 

tribe's antidegradation provisions so that waters will be maintained and protected in accordance with the objectives of 

the Act." 78 Federal Register 54,529. We further agree that "antidegradation is an essential part of WQS and state and 

tribal approaches to implementing antidegradation requirements may have direct implications for NPDES permits, as 

well as other federal permits and licenses for activities that affect water quality," and we believe that this is the primary 

reason "why the regulations should require states and tribes to formally adopt, after providing an opportunity for public 

involvement, and obtain EPA approval for antidegradation implementation methods." 78 Federal Register 54,530. 

To address the concerns raised herein with what we believe to be a weakening of federal CWA requirements, and to 

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ensure that states adopt implementation through a rulemaking and EPA approval process, we recommend adopt the 

following amendment to the proposed language in 40 C.F.R. §131.12(a) and (b): 

(a) The State shall develop and adopt a statewide antidegradation policy and [begin strikeout] identify [end strikeout] the 

methods for implementing such policy [begin new text] as water quality standards [end new text] pursuant to this 

subpart. The antidegradation policy and implementation methods shall, at a minimum, be consistent with the following: 

(b) The State shall develop [begin new text] , [end new text] [begin strikeout] and [end strikeout] make available to the 

public [begin new text] , and adopt [end new text] statewide methods for implementing the antidegradation policy [begin 

strikeout] adopted [end strikeout] pursuant to paragraph (a) of this section. A State's antidegradation implementation 

methods shall be designed to achieve antidegradation protection consistent with paragraph (a) of this section. Such 

methods must ensure that: 

[FN7] See http://www.dec.ny.gov/docs/water_pdf/togs139.pdf. 

[FN8] http://www.rivernetwork.org/cwwpolicyanalysis, Ch. 2, p. 40. 

[FN9] http://water.epa.gov/scitech/swguidance/standards/handbook/chapter04.cfm#section1 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

7.f.i: Section C 

Comment ID 0216-A2.001.005 

Author Name: Brisson Brook 

Organization: Trustees for Alaska on behalf of the Alaska Center for the Environment et al. 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

EPA Proposal Part 3: Developing and Making Available to the Public Antidegradation Implementation Methods 

Commenters understand this section to include three proposals: (1) whether EPA should require states to formally 

adopt antidegradation implementation methods in the first place (by amending 40 C.F.R. § 131.12(b)); (2) if states 

formally adopt implementation methods, whether EPA should require that states submit implementation methods to it to 

review for consistency with 131.12 (by amending 40 C.F.R. § 131.5(a)); and (3) whether EPA should require that states 

adopt implementation methods as a water quality standard subject to EPA's review and approval. Proposed Rule, 78 

Fed. Reg. at 54,259. EPA should amend 40 C.F.R. §§ 131.5, .6, and .12 to require that all states formally adopt 

antidegradation implementation methods and that those methods be submitted to EPA for its review and approval as a 

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water quality standard. See 33 U.S.C. § 1313(c). [FN5] 

States have always been required to have implementation methods. EPA's current regulations require states to adopt 

both an antidegradation policy and "identify the methods for implementing such policy." 40 C.F.R. 131.12(a); see also 

EPA Water Quality Standards Regulation Final Rule, 48 Fed. Reg. 51,400-01 (Nov. 8, 1983) (codified at 40 C.F.R. part 

35, 120, 131); see also EPA Water Quality Standards Regulation, 47 Fed. Reg. 49,234-01, 49,238 (Oct. 29, 1982) 

(Proposed Rule) (nothing the requirement to identify implementation methods existed even in EPA's prior regulations). 

And the very language of EPA's regulation has always required that EPA determine whether the implementation 

methods are consistent with 131.12. 40 C.F.R. § 131.12(a). To the extent this has not been clear, or the requirement 

not enforced by EPA, EPA's regulations should clearly require it, and EPA should take steps to ensure that this 

requirement is met. Additionally, the implementation methods should be required to be adopted by regulation, as a 

water quality standard. 

Any water quality standard developed by a state must be reviewed and approved by the Administrator prior to it taking 

effect. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.5(a). Antidegradation is a water quality standard. 33 U.S.C. § 

1313(d)(4)(B); see also Idaho Conservation League v. Atlanta Gold Corp., 844 F. Supp. 2d 1116, 1127 (D. Idaho 2012) 

(stating that water quality standards include "an antidegradation policy and other implementation methods"). In 

considering what is a water quality standard subject to review and approval, EPA recently stated that it considers the 

antidegradation requirements to be water quality standards. EPA, PUBLICATION NO. 820F12017,WHAT IS A NEW 

OR REVISED WATER QUALITY STANDARDS UNDER CWA 303(C)(3)?, FREQUENTLY ASKED QUESTIONS at 2 

(Oct. 2012) (citing 40 C.F.R. §§ 131.5(a)(5), 131.6(d), 131.12, PUD No. 1 of Jefferson County v. Washington Dep't of 

Ecology, 511 U.S. 700 (1994)). The antidegradation requirements are defined by EPA to include two parts: a policy and 

implementation methods. 40 C.F.R. § 131.12(a). 

The implementation methods set out the bounds of antidegradation in each state, and affect whether permits are 

granted and the limits in those permits, the substantive decisions in state section 401 certifications, and whether waters 

are listed under section 303(d). When implementation methods are applied in this way, they have a practical effect on 

the meaning of standards. See Fla. Pub. Interest Research Group Citizen Lobby, Inc. v. EPA, 386 F.3d 1070, 1089-90 

(11th Cir. 2004) (if a state rule has the practical impact of changing water quality standards, it is a standard that needs 

to be reviewed and approved by EPA); Nw. Envtl. Advocates v. EPA, 855 F. Supp. 2d 1199, 1211 (D. Or. 2012) 

(holding that EPA must review state regulations "that affect whether and how" water quality standards are applied) 

(emphasis added); see also 40 C.F.R. § 131.13 (noting that policies that affect application and implementation of 

standards "are subject to EPA review and approval); Letter from Michael A. Bussell, Director, Office of Water and 

Watersheds, EPA Region 10, to Barry Burnell, Water Quality Programs Administer, Idaho Department of Environmental 

Quality at 2 (May 10, 2012) (stating that antidegradation requirements "provid[e] for protection of existing water uses 

and limitations on degradation of high quality waters.") (included as Attachment D).[FN6] Because of that impact and 

effect, implementation methods are water quality standards.[FN7] 

Requiring states to formally adopt implementation methods and for EPA to review and approve them is consistent with 

the CWA's provisions regarding water quality standards and EPA's long-standing regulations. See also Nw. Envtl. 

Advocates v. EPA, 268 F. Supp. 2d 1255, 1265 (D. Or. 2003) (stating that an antidegradation implementation plan is a 

"required element" of water quality standards); 40 C.F.R. § 130.7(b)(3) (defining "applicable water quality standards" for 

TMDLs to include "antidegradation requirements"). As EPA identifies, doing so will lead to greater consistency 

nationwide, as well as better public understanding and agency transparency in water quality decisions. See Proposed 

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Rule, 78 Fed. Reg. at 54,529-30. A recent example from Alaska illustrates this point. 

In Alaska, the Alaska Department of Environmental Conservation ("DEC") is the state agency tasked with protecting 

water quality, and can adopt water quality standards by regulation to do so.[FN8] In 1997, DEC adopted by regulation -

and EPA approved - an antidegradation policy.[FN9] But DEC did not identify, nor adopt implementation methods. 

Despite the lack of implementation methods, DEC issued section 401 certifications that allowed for backsliding. In the 

public review and appeal process for two specific NPDES permits, various groups (including many of the Commenters) 

raised the issue of the lack of implementation methods to EPA. Realizing the legal problems associated with the lack of 

implementation methods to apply the antidegradation policy and allow backsliding, the EPA withdrew the effluent limits 

at issue in the Red Dog Permit (EPA Permit No.: AK-003865-2) and sought a voluntary remand of the Cook Inlet 

General Permit (EPA Permit No.: AKG-31-5000) until DEC could issue implementation methods. See Cook Inletkeeper 

v. EPA, 400 Fed. Appx. 239, 241 (9th Cir. 2010); Letter from Michael A. Bussell, Director, Office of Water, EPA, to Mike 

D.J. Bonneau, General Manager, Teck Alaska Inc. (March 17, 2010) (included as Attachment A). 

Instead of going through a public process to develop implementation methods, in short order DEC published the Interim 

Antidegradation Implementation Methods as an agency guidance document, without any public notice or review prior to 

its adoption.[FN10] This meant that the public had no notice or opportunity to review and comment on the Interim 

Methods. DEC has since applied those methods in decisions on many permits, including the two permits at issue in the 

appeals. In response to DEC's issuance of the Interim Methods as guidance, EPA Region 10 merely stated that it does 

not require that implementation methods go through the formal approval requirement for all other water quality 

standards, which also include public participation requirements. Letter from Michael A. Bussell, Director, Office of Water 

and Watersheds, EPA Region 10, to Brook Brisson, Staff Attorney, Trustess for Alaska (Nov. 2, 2010) (included as 

Attachment C). EPA's review of the implementation methods did not include an evaluation of whether they substantively 

affected existing water quality standards such that they themselves were a water quality standard. 

DEC's issuance of the Interim Methods and EPA's concurrence in the process has resulted in the public being excluded 

from the development of a very important element of Alaska's water quality standards that effect water quality and water 

protection.[FN11] Further, because it is a guidance document, the methods can be changed at any time, without public 

involvement, and are unenforceable. This is contrary to the CWA. 

Commenters are concerned that EPA's proposed revisions are not sufficiently clear on these issues. Accordingly, 

Commenters recommend that EPA adopt language in the final revisions to make it clear that states must adopt 

antidegradation implementation methods and must do so by rulemaking. Commenters propose the following changes to 

EPA's proposed language and existing regulations (new language in bold; removed language in strikethrough): 

40 C.F.R. § 131.5(a)(3): "Whether the State has adopted an antidegradation policy [begin new text] and implementation 

methods [end new text] consistent with § 131.12(a) [begin strikeout], and if the State has chosen to adopt 

implementation methods, whether those implementation methods are consistent with § 131.12." [end strikeout] 

40 C.F.R. § 131.6(d): "An antidegradation policy [begin new text]and implementation methods [end new text] consistent 

with § 131.12."[FN12] 

40 C.F.R. § 131.21(b): "The State shall develop, [begin new text] consistent with section 303(c) of the Act, [end new 

text] and make available to the public statewide methods for implementation the antidegradation policy adopted 

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pursuant to paragraph (a) of this section. . . ." 

[FN5] If EPA determines in the final rule that it will not require states to formally adopt implementation methods, EPA 

must still require all states to adopt methods and must review the methods for consistency with 40 C.F.R. § 131.12. 

EPA's current regulation clearly requires this and there should be no confusion on this issue. 40 C.F.R. § 131.12(a). 

See also CORALations v. EPA, 477 F. Supp. 2d 413, 416 (D. P.R. 2007) (noting that states are required to submit both 

the antidegradation policy and implementation methods to EPA for approval); Ohio Valley Envtl. Coal. v. Horinko, 279 

F. Supp. 2d 732, 738 (S.D. W.V. 2003) (stating, "[s]tates must submit their antidegradation policy and implementation 

procedures to the EPA" and citing 33 U.S.C. § 1313(c)(2)(A)). 

[FN6] That the major elements of antidegradation implementation methods have practical effects is demonstrated by 

the list of minimal elements that must be included in antidegradation implementation methods proposed by EPA. See 

Proposed Rule, 78 Fed. Reg. at 54,530-31. 

[FN7] If an element of a state's antidegradation implementation methods did not affect water quality standards because, 

for example, it was purely procedural dealing with internal agency processing of a criteria or permit, it would not be a 

water quality standard subject to EPA review. While the distinction may not always be a clear one, the path that EPA 

has allowed states to go down in creating implementation methods has resulted with the inclusion of substantive 

provisions in state's methods that affect permits and standards. 

[FN8] AS 46.03.010; AS 46.03.020(10); AS 45.03.070; AS 46.03.080. 

[FN9] See 18 AAC 70.015. 

[FN10] STATE OF ALASKA, DEP'T OF ENVT. CONSERVATION, POLICY AND PROCEDURE NO. 05.03.103, 

INTERIM ANTIDEGRADATION IMPLEMENTATION METHODS (July 14, 2010) [hereafter Interim Methods"] (included 

as Attachment B). 

[FN11] The CWA is clear that the public must be involved in the development of water quality standards, whether 

adopted by a state or EPA: "Public participation in the development, revision, and enforcement of any regulation, 

standard, effluent limitation, plan, or program established by the Administrator or any State under this chapter shall be 

provided for, encouraged, and assisted by the administrator and the States." 33 U.S.C. § 1251(e); 40 C.F.R. §§ 

25.2(a)(1) (noting that state rulemaking under the CWA is subject to EPA's public participation regulations), 25.3(a) 

(noting that states that participate in CWA rulemakings "shall provide for, encourage, and assist the participation of the 

public."). State rulemaking for water quality standards must also comply with EPA's public participation regulations. 40 

C.F.R. § 25.10(b); Op. Atty' Gen. 279 (1996), 1996 WL 925854. 

[FN12] Commenters note that this language is consistent with EPA's interpretation set out in the WQS Handbook, 

Section 1.6. (referencing 40 C.F.R. § 131.6 and stating: "[t]he following elements must be included in each State's water 

quality standards submittal to EPA for review: . . . an antidegradation policy and implementation methods consistent 

with section 131.12 of the Water Quality Standards Regulation"). 

Response 

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For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

7.f.i: Section C 

Comment ID 0217-A2.001.014 

Author Name: Hale Michelle 

Organization: Alaska Department of Environmental Conservation 

4. Antidegradation Implementation 

ADEC is in the process of drafting proposed antidegradation implementation regulations. Due to frequent 

communication with EPA Region 10 staff, Alaska's proposed regulations are generally consistent with the requirements 

and discussion in EPA's proposed rule. 

a. Implementation methods for antidegradation should not be required to be adopted into state law 

ADEC is choosing to adopt its antidegradation implementation methods into regulation, which is subject to public 

involvement. However, given the difficulty of adopting regulations in other states, ADEC supports allowing states to 

establish antidegradation implementation procedures in either regulation or guidance as long as the critical elements for 

antidegradation are included. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0218-A1.001.002 

Author Name: Elardo Pam 

Organization: King County Department of Natural Resources and Parks 

Brief Description of Key Requests and Comments 

• Continue state discretion in the implementation of anti-degradation policies 

Response 

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For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0218-A1.001.010 

Author Name: Elardo Pam 

Organization: King County Department of Natural Resources and Parks 

Anti-Degradation Analysis 

King County supports the EPA's review of state anti-degradation policies, but requests continued state discretion in antidegradation implementation. 

If the EPA finds state implementation inadequate in a particular circumstance, then the appropriate action would be to 

challenge a specific permit or address a state's specific deficiencies in their permitting program. Applying new 

nationwide requirements on all states is not reasonable. Washington State has articulated their approach to antidegradation review in regulation and guidance, identified criteria for review through public process, and currently 

describes in detail their analysis in permit factsheets. King County believes that state anti-degradation implementation 

methods should be transparent and accessible to the public, but creating prescriptive requirements that incorporates 

anti-degradation implementation into water quality standards subject to the EPA review, goes beyond the legislative 

intent of the CWA, and infringes on decisions best left to state and local jurisdictions. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section C 

Comment ID 0219-A1.001.009 

Author Name: McNelly Jeff 

Organization: ARIPPA 

B. EPA Approval and Minimum Implementation Requirements 

The States-Tribes should not be required to submit their antidegradation methods as part of their water quality 

standards submission for EPA review. The States are in the best position to conduct the review of a permit relative to 

the antidegradtion requirements which are already consistent with the Clean Water Act. EPA has the opportunity to 

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review a State-Tribal decision as part of their oversight of the NPDES Program. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0220-A2.001.011 

Author Name: Anderson Paul 

Organization: Paul G. Anderson, LLC On behalf of the Lower Fountain Metropolitan Sewage Disposal District 

iii. Part 3 - Antidegradation Methods 

The Lower Fountain District submits it is unnecessary to require states with delegated water quality programs to 

develop antidegradation methods as WQS. Colorado administers an EPA-delegated program consistent with both the 

CWA and EPA regulations, and in turn its regulations include antidegradation provisions that appear consistent with the 

"Minimum Elements of an Antidegradation Implementation Method" set forth at p. 54529. Unless delegated programs 

are consistently failing to implement antidegradation requirements adequately, or at all, adding a requirement to adopt 

methods as WQS adds an administrative burden and results in unnecessary oversight by EPA. In the District's view, 

there should be a demonstrated need for such a requirement before it is imposed on EPA-delegated programs. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0222-A1.001.013 

Author Name: Modeer David 

Organization: Western Urban Water Coalition 

Antidegradation Implementation. EPA proposes to amend several provisions of section 131.12 related to 

implementation of the antidegradation requirements. These changes include: (1) clarifying the options available to 

states and tribes when identifying Tier 2 high quality waters; (2) clarifying that states and tribes must conduct an 

alternatives analysis in order to support state and tribal decision-making on whether to authorize limited degradation of 

high quality water; and (3) specifying that states and tribes must develop and make available to the public 

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implementation methods for their antidegradation policies. 

EPA is also proposing to add language to section 131.5(a) describing its authority to review and approve or disapprove 

state-adopted or tribal-adopted antidegradation policies. The language at section 131.5(a) would further specify that if a 

state or tribe has chosen to formally adopt implementation methods as WQS, the EPA would review whether those 

implementation methods are consistent with section 131.12. WUWC has the following comments on these proposed 

revisions: 

1. EPA proposes that, for the first time, it will review state antidegradation implementation methods if the state has 

"chosen to formally adopt implementation methods as water quality standards." See Proposed Rule at 131.5(a)(3). 

Taking such action appears to be an encroachment upon state authority and flexibility in the WQS arena, and would 

certainly be an incentive for states to accomplish implementation through state guidance and policy documents. EPA 

should eliminate the provision for its review of state antidegradation implementation methods. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0222-A1.001.017 

Author Name: Modeer David 

Organization: Western Urban Water Coalition 

Further, EPA must defer to the states' implementation decisions, and EPA should not require, for the first time, that 

implementation methods be adopted as WQS. To do otherwise will trigger the need for periodic reviews of the standard, 

including the expenditure of resources associated therewith, and may potentially result in legal challenges regarding the 

content of the implementation program or the timing associated with its review or both. We recommend that EPA simply 

indicate in the Preamble for the final rule that the states and tribes need implementation provisions, even if they are not 

formally adopted as part of the WQS program. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

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Comment ID 0223-A1.001.010 

Author Name: Lindekugel Buck 

Organization: Grassroots Attorney on behalf of Southeast Alaska Conservation Council 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

Should Implementation Methods be Adopted as WQS? Yes, but only give States one year to do so. If a state it has not 

done so by then, EPA should promulgate an appropriate methods based on current guidance, EPA, Economic 

Guidance for Water Quality Standards Workbook (April 1995). Also recommend amending § 131.20(a) to include 

implementation methods part of the triennial review process. 

(a) State review. The State shall from time to time, but at least once every three years, hold public hearings for the 

purpose of reviewing applicable water quality standards and [begin new text] implementation methods, and, [end new 

text] as appropriate, modifying and adopting standards [begin new text] or methods. [end new text] ... 

... 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0224-A1.001.012 

Author Name: Ternieden Claudio 

Organization: Water Environment Federation 

3. EPA Proposal––Part 3: Developing and Making Available to the Public Antidegradation Implementation Methods: 

EPA is proposing to add a paragraph to 40 CFR 131.12 that requires states/tribes to develop antidegradation 

implementation procedures and make them available to the public to improve program implementation, ensure 

consistency with the CWA, and provide transparency. 

EPA is also revising § 131.5(a) to add review and approval/disapproval of state/tribal-adopted antidegradation policies 

to EPA's authority. Part 131.5(a) will further specify that EPA would also review implementation procedures for 

consistency with 131.12 if a state or tribe chooses to adopt them as water quality standards. 

WEF Comments: 

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In this proposal, EPA is specifically requesting comment on whether or not to require that antidegradation 

implementation methods be adopted as WQS and thus subject to EPA review and approval or disapproval as part of 

WQS/triennial review. WEF requests that EPA clarify its authority to implement this revision since the only mention of 

antidegradation is in section 303(d), not 303(c). 

However, participation by the regulated community as well as other stakeholders would provide transparency and 

accountability in the development of antidegradation implementation procedures. State rulemaking policies and 

procedures provide for public participation and thus can be a vehicle for states to comply with the public participation 

requirements. It would seem that the appropriate location for such rules would be within the antidegradation statement 

that is a required element of a state's WQS. WEF believes that the triennial review process is currently very 

cumbersome with consideration of new and revised water quality criteria recommendations, other EPA 

recommendations and with this revision, UAA/HAU considerations. Addition of implementation procedures to these 

already heavy-laden rules may significantly delay states' revision of and EPA review and approval/disapproval of WQS. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section C 

7.m 

Comment ID 0229-A2.001.009 

Author Name: Tillison Naomi 

Organization: Bad River Band of Lake Superior Tribe of Chippewa Indians 

The Tribe encourages EPA to require states and authorized tribes to include procedures to implement the 

antidegradation policy as a minimum requirement of their WQS. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0230-A1.001.018 

Author Name: Ettinger Albert 

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Organization: One of the counsel for the Environmental Law and Policy Center et al. 

Antidegradation standard or implementation method 78 FR 5422930 

In this section, EPA proposes to add language clarifying that states must develop antidegradation implementation 

procedures and make them available to the public. EPA requests "comment on whether the EPA should include a 

requirement that implementation methods be formally adopted as WQS and thus subject to EPA's review and approval 

or disapproval." (78 FR at 54529) This is not the question. Any binding substantive rule that may affect water quality 

based effluent limits in NPDES permits, water quality standards policies (e.g. mixing zones), the circumstances in which 

degradation may be allowed, when 401 certifications may be made or what water bodies are listed as impaired under 

Section 303(d), is a water quality standard that must be reviewed by EPA. This is true no matter whether the state calls 

the rule an "implementation rule" or something else or where it is placed in the state's administrative code. 

We believe this issue is straightforward. If a state implementation rule affects the circumstances or conditions under 

which permits are granted, 401 certifications are made or waters are listed under Section 303(d), then it must be 

adopted as a WQS and reviewed by EPA. The key action needed from EPA is to caution states to make sure that they 

submit every binding rule that has the effect of a water quality standard to EPA for review and approval whatever they 

want to call the rule. [FN8] 

The problem is that some states have attempted to pass rules regarding use designations, water quality criteria or 

antidegradation that substantially affect permits or 303(d) listings without following the 303(c) review process. The law is 

that if a state rule has the "actual effect" or "practical impact" of a standard, it is a standard and must be approved. 

Florida Pub. Interest Research Group v. U.S. EPA , 386 F.3d 1070, 10889 (11th Cir. 2004); Northwest Environmental 

Advocates v. U.S. EPA , 855 F. Supp. 2d 1199, 1211 (D.Ore. 2012); Ohio Valley Environmental Coalition v. Horinko , 

279 F. Supp. 2d 272, 76365 (S.D. W. Va. 2003). 

We do not believe that states should be required to present implementation rules that merely proscribe nonsubstantive 

procedures for making decisions. However, EPA should clarify that any implementation rule that affects the 

circumstances or conditions under which permits are granted must be adopted as a WQS and presented to U.S. EPA 

for approval. 

[FN8] We recognize that in some cases distinguishing water quality standards from other rules will be difficult, but there 

seems no alternative to requiring states to submit general rules affecting implementation, as they are now required to 

do 40 C.F.R. 131.6, and making decisions as they arise. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i: Section B 

08/04/2015 05:01 PM EDT 

7.f.i 

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Comment ID 0231-A2.001.027 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

EPA also asks for comment on whether a State's implementation procedure must be adopted into the State's WQS and 

then submitted to EPA for approval. There is no legal basis for EPA to dictate how States, particularly authorized 

States, should implement their WQS. As long as an antidegradation program is being implemented, it should not be 

EPA's concern whether it is done under a State rule, policy or guidance document. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0234-A2.001.008 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

B. EPA Approval 

While not proposing it, EPA also is taking comment on whether to require the submission of antidegradation 

implementation methods to EPA for approval as a component of water quality standards. We see no legal basis for EPA 

to dictate how States (particularly authorized States) should implement their water quality standards. As discussed 

below, the 1990 Administrator's decision in Star-Kist indicates that these are State choices. [FN3] Some States 

currently implement antidegradation through rules, and others use guidance. In some cases, that decision is dictated by 

State laws. As long as the antidegradation program is being implemented, it should not be an EPA concern whether it is 

done under a State rule or a State policy or a State guidance document. 

If EPA's concern is that some States are not currently implementing the antidegradation program, the solution is not to 

impose Federal requirements on all States, including those that are implementing their antidegradation standards. 

[FN3] In the Matter of Star-Kist Caribe, Inc., 3 EAD 172 (April 16, 1990). 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

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Chapter 2 - Comment Documents Antidegradation 

7.f.i: Section A 

Comment ID 0236-A2.001.015 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

Public Participation
 

WDNR supports the following clarifications:
 

• Antidegradation policies should be consistent and transparent, and clearly identify public comment opportunities. 

• States should be given the option to adopt antidegradation implementation methods as WQS, but this should not be a 

requirement of the program. 

• Antidegradation policies and implementation methods are required elements of States' WQS programs. 

Recommended changes: 

• WDNR currently adopts antidegradation implementation methods into WQS. However, WDNR recognizes that other 

states have expressed valid reasons why it is beneficial for adoption into WQS to be optional for states, and supports 

this flexibility for states. WDNR is unclear how adopting antidegradation implementation methods as WQS would 

improve transparency in the program, and provide additional consistency with the CWA. WDNR requests EPA provide 

additional justification for their reasoning and expectations, siting any applicable case law that exists. 

o The CWA provides States with significant flexibility to implement antidegradation procedures within their State. WDNR 

is concerned that this flexibility would be restricted if EPA had a formal review and approval or disapproval authority of 

antidegradation in WQS. 

• WDNR is further concerned that EPA would put too much emphasis on guidance when making approval or 

disapproval decisions if antidegradation procedures were adopted as WQS. 

Minimum Elements
 

WDNR supports the following clarifications:
 

• States should be given the option to adopt antidegradation implementation methods as WQS, but this should not be a 

requirement of the program. 

Recommended changes: 

• WDNR currently adopts antidegradation implementation methods into WQS. However, WDNR recognizes that other 

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states have expressed valid reasons why it is beneficial for adoption into WQS to be optional for states, and supports 

this flexibility for states. WDNR requests EPA provide additional justification for their reasoning and expectations of the 

changes to this section, siting any applicable case law that exists. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section C 

Comment ID 0237-A2.001.004 

Author Name: Tucker James 

Organization: Idaho Power Company 

3. EPA has requested comment on whether or not states and tribes should be required to submit antidegradation 

implementation plans as one of the minimum requirements for water quality standard submission. States are currently 

required to submit an antidegradation policy with water quality standard submissions. 40 C.F.R. 131.6(d). The additional 

requirement that states should include antidegradation implementation plans as an element of water quality standards 

is extremely burdensome and unnecessary. The state water quality standards are intended to determine what criteria 

must be met, whereas an implementation guidance demonstrates how to get there. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0237-A2.001.006 

Author Name: Tucker James 

Organization: Idaho Power Company 

The State of Idaho has recently completed an antidegradation rulemaking, and is in the process of drafting an 

antidegradation implementation guidance document. EPA expresses concern about other states that have failed to draft 

antidegradation implementation rules or guidance. However, to address that concern EPA should deal directly with 

those states, rather than increasing the regulatory burden for states that have complied with this CWA requirement. 

Additionally, Idaho's draft implementation guidance is 137 pages long, making it unsuitable as a rule and far more 

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useful as a guidance tool. Having to promulgate that guideline as a rule would be expensive and burdensome, 

especially for states like Idaho which have already gone through the process of developing guidance. These states 

would in essence have to start over again to pass a rule, obtain legislative approval and then EPA approval. Each little 

modification to the guidance would constitute a new rule and have to go through the same process. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0240-A2.001.015 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

4. Antidegradation Implementation 

Section 131.12 Antidegradation Policy and Implementation Methods 

EPA is proposing to amend this section in several ways, including: 1) "clarifying" the options for identifying Tier 2 high 

quality waters, 2) requiring the use of an alternatives analysis in order to support decisions whether to allow limited 

degradation of high quality water, and 3) specifying that antidegradation implementation methods and policies be made 

available to the public. Additionally, 131.5 would give EPA the authority to review and approve or disapprove the 

antidegradation implementation methods and policies. 

a. We believe that the revisions in this section go too far in transferring the responsibility of devising and implementing 

antidegradation policy from the states and tribes to the EPA. Requiring EPA review and approval of all antidegradation 

methods and policies (as specified in 131.5) will be a very expensive and time-consuming process and will hinder states 

from applying antidegradation policies while waiting for EPA authorization. More importantly, states have differing 

antidegradation policies and implementation strategies that they have developed for their state-specific situations, 

allowing for flexibility that would be greatly harmed by the proposed rule change. EPA's attempt to impose a "one size 

fits all" antidegradation policy across the country will inappropriately limit the ability of states and tribes to create and 

apply policies and practices that work best for their state. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

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Chapter 2 - Comment Documents Antidegradation 

Comment ID 0242-A2.001.004 

Author Name: Allmon Eric 

Organization: Lowerre, Frederick, Perales, Allmon & Rockwell on behalf of Clean Water Action et al. 

Tier 2 Anti-degradation 

EPA should include a requirement that anti-degradation implementation methods be adopted as WQS subject to EPA 

review and approval or disapproval. In doing so, EPA should set forth more specific standards to limit the manner in 

which a state may implement a significance threshold that would exempt regulatory actions from the alternatives 

analysis of a Tier 2 review. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

7.i 

Comment ID 0244-A2.001.016 

Author Name: Loomis Marion 

Organization: Wyoming Mining Association 

EPA also asks for comment on whether a State's implementation procedure must be adopted into the State's WQS and 

then submitted to EPA for approval. There is no legal basis for EPA to dictate how States, particularly primacy States, 

should implement their WQS. As long as an antidegradation program is being implemented, it should not be EPA's 

concern whether it is done under a State rule, policy or guidance document. New regulatory requirements are not the 

appropriate approach to ensuring implementation of state antidegradation programs 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.m 

08/04/2015 05:01 PM EDT 2-819 
Chapter 2 - Comment Documents Antidegradation 

Comment ID 0248-A2.001.012 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

Third, EPA seeks comment on whether State anti-degradation implementation plans should be treated as water quality 

standards and thus be subject to EPA review and comment. See 78 Fed. Reg. at 54,529. Mosaic believes that the 

Clean Water Act does not establish state implementation plans for anti-degradation review as elements of a water 

quality standard, and it is therefore inappropriate for EPA to try to achieve this goal by regulation. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0248-A2.001.014 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

States should have the flexibility to implement anti-degradation implementation plans without the burdensome 

administrative process that necessarily accompanies EPA review of water quality standards. EPA can always express 

its views and provide its input informally and by other means without this mandatory, additional set of procedures. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0249-A2.001.013 

Author Name: Calamita F. Paul
 

Organization: General Counsel on behalf of The Wet Weather Partnership et al.
 

C. Implementation 

EPA's proposal correctly leaves it to the states as to whether antidegradation implementation should be in state 

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Chapter 2 - Comment Documents Antidegradation 

regulations or guidance, but makes it clear that there must be a viable, transparent process in either case. However, we 

do not agree that there is any current confusion as to whether there is a legal need for state regulations on 

implementation. See 78 Fed. Reg. at 54529. Instead, we believe it is clear that properly expressed implementation 

provisions need not be adopted as a regulation. We also note the Agency's reference to implementation as an important 

element of the antidegradation element of water quality standards. Id. Just as various permitting procedures are often 

spelled out in a state agency's (and EPA's) guidance or informal procedures and function perfectly well and in a 

transparent manner, antidegradation may also be properly handled by the states on a less formal basis than through 

rulemaking. In this regard we strongly disagree with the Agency's suggestion that because antidegradation 

implementation "may have direct implications for NPDES permits," id. at 54530, that may be a reason for requiring 

implementation procedures in state regulations. As we note immediately above, various permitting procedures are 

successfully specified both by the states and by EPA itself in guidance or less formal presentations. We recognize that 

the proper expression of such procedures can be important where the regulatory process will not be used. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0250-A2.001.004 

Author Name: Batterton Carol 

Organization: Water Environment Association of Texas, Texas Association of Clean Water Agencies, and Texas Water 

Conservation Association 

Antidegradation Implementation Methods 

EPA has requested comment on whether the Regulation should be amended to require implementation methods to be 

adopted by rule and to specify minimum requirements, including a requirement for an alternatives analyses and a 

limitation on lowering of high water quality if any "practical" alternatives are available. WEAT, TACWA, and TWCA do 

not support such a stringent approach. 

Our members encourage EPA to review the approach to antidegradation long ago adopted by Texas in the Texas 

Surface Water Quality Standards (Texas Standards) and Procedures to Implement the Texas Surface Water Quality 

Standards (Implementation Procedures), because the Texas program very clearly addresses the issues of concern to 

the EPA. We believe that most other states have also adopted acceptable programs during the decades since the 

legislation was passed. The appropriate antidegradation program can vary widely from State to State. The Clean Water 

Act (CWA) does not specify detailed requirements for the program, and EPA should not attempt to apply a one-size-fitsall approach at this late date. As noted before, if there are issues in some States, EPA should address those directly 

and not attempt to reconfigure all of the State programs into a uniform mold. 

With respect to the requirement that the implementation procedures should be included in the water quality standards, 

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we again refer you to the current documents in Texas. In its water quality standards regulations, TCEQ includes about 

two and a half pages identifying tiers and the objectives of the anti-degradation review for each tier. The standards state 

that the process for the review and associated public coordination are set out in the implementation procedures. The 

Implementation Procedures then contain about 14 pages of detailed information on the processes. To require the 

implementation procedures to be incorporated into the rule setting forth the water quality standards would burden the 

standards with detail that is unnecessary and makes needed periodic refinements of the antidegradation review process 

unworkable. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

12.a 

Comment ID 0251-A2.001.020 

Author Name: Wigal Jennifer 

Organization: Oregon Department of Environmental Quality 

Specific Comment 

Implementation Methods 

DEQ supports ACWA's comments that implementation methods should not be required to be adopted into state water 

quality standards, including ACWA's suggested revisions. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0252-A2.001.028 

Author Name: Fry Eric 

Organization: Peabody Energy 

EPA also asks for comment on whether a State's implementation procedure must be adopted into the State's WQS and 

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Chapter 2 - Comment Documents Antidegradation 

then submitted to EPA for approval. There is no legal basis for EPA to dictate how States, particularly authorized 

States, should implement their WQS. As long as an antidegradation program is being implemented, it should not be 

EPA's concern whether it is done under a State rule, policy or guidance document. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0256-A2.001.013 

Author Name: Shepherd Hal 

Organization: The Center for Water Advocacy 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

VII. Should Implementation Methods be Adopted as WQS? 

Yes, but only give a State one year to do so. If it has not done so by then, EPA should promulgate an appropriate 

standards based on current guidance, EPA, Economic Guidance for Water Quality Standards Workbook (April 1995). 

Also recommend amending § 131.20(a) to include implementation methods part of the triennial review process. 

(a) State review. The State shall from time to time, but at least once every three years, hold public hearings for the 

purpose of reviewing applicable water quality standards and [begin new text] implementation methods, and, [end new 

text] as appropriate, modifying and adopting standards [begin new text] or methods. . . . . [end new text] 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0257-A1.001.010 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

EPA is also proposing a requirement for states to publish implementation methods for the above procedures and 

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standards and is proposing authority for EPA review and approval of these methodologies at 40 CFR 131.5(a). Because 

Proposed 40 CFR 131.12(b) effectively mandates that states develop implementation methods, the Chamber is 

concerned that together these provisions would be used by EPA to direct state implementation protocols. Given the 

Chamber's objections to the newly created antidegradation standards that are discussed above, these new EPA 

authorities over implementation methodologies are strongly opposed as an improper intrusion on state policy. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0259-A2.001.003 

Author Name: Naylor Char 

Organization: Puyallup Tribe of Indians 

However, in some cases, the proposed rule doesn't go far enough particularly with regard to antidegradation 

implementation. EPA should require the adoption of statewide antidegradation methods as WQS and thus submitted to 

EPA for review and approval. Describing how states and tribes intended to implement each aspect of its 

antidegradation policy consistent with §131.12(a) as well as how decisions would be documented would greatly improve 

the ability of the Puyallup Tribe to protect downstream Reservation waters, improve program implementation, ensure 

consistency with the CWA, and provide transparency with regard to antidegradation review and decision making. At 

issue is our ability to protect millions of dollars of restoration projects, waters that have EPA-approved TMDLs in place 

or are at risk of impairment, and ESA-listed fish that reside in tribal waters. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

7.f.i: Section C 

Comment ID 0261-A2.001.006 

Author Name: Bartlett Drew 

Organization: Florida Department of Environmental Protection 

Consistent with these limitations, EPA should clarify in § 131.6 that a State need not resubmit its antidegradation policy, 

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if it is simply submitting a new or revised designated use or water quality criterion. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section O 

7.g.iii 

Comment ID 0261-A2.001.009 

Author Name: Bartlett Drew 

Organization: Florida Department of Environmental Protection 

To truly clarify this important issue, we recommend that EPA add text to the regulation clarifying the extent to which 

"adoption" of antidegradation implementation methods is expected and subject to EPA review. Implementation of 

antidegradation policies in permitting appears to be a common practice in the majority of States; and EPA has court 

precedent and experience in reviewing those procedures. EPA needs to clarify that antidegradation implementation in 

permitting alone is an approvable approach. Such clarification will help reduce further litigation on this issue. 

Florida supports transparency in all Program activities, and has, in fact, adopted its antidegradation policy and 

implementation method by rule. However, we do not believe that States should be required to submit their 

implementation methods as part of their water quality standards. Of note is that EPA did not propose revisions to 

paragraph § 131.13, which clearly states that such policies are discretionary. We recommend that EPA add text to § 

131.12 to directly state that adoption of the methods are discretionary, as is noted in § 131.13. EPA should also clarify 

its authority to approve implementation methods that are provided for guidance purposes and are not adopted into a 

State's water quality standards. 

As previously noted regarding the lack of clarity on what it means to be "consistent with § 131.12(a)," it is also not clear 

how EPA will evaluate implementation methods. While EPA provides its expectations for areas that need to be 

addressed in a State's antidegradation implementation methods in the Preamble, the expectations provide insufficient 

information, and, more importantly, they are not included in the proposed regulations. Given that we have an EPA 

approved antidegradation policy and implementation methods, we assume that our implementation methods, which are 

consistent with that policy, are also consistent with EPA's revised antidegradation regulations. More generally, can 

States presume that the approvability of their currently approved antidegradation policies will not be affected by this 

rulemaking as the rulemaking does not seem to establish any new requirements or limitations on the scope of 

implementation? 

In summary, if implementation methods are going to be required and approved by EPA, we suggest that EPA tie the 

scope of the implementation methods to those issues where EPA has authority, and has provided guidance or 

consistent policies for implementation. It is critical that regulatory clarity be established in this context, so that the 

requirements are not defined through the results of costly litigation. 

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Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section C 

7.f.i: Section E 

7.f.i: Section I 

7.f.i: Section O 

7.g.iii 

Comment ID 0263-A2.001.009 

Author Name: Gretchen Watkins Larry Wawronowicz 

Organization: Lac du Flambeau Band of Lake Superior Tribe of Chippewa Indians 

The Tribe encourages EPA to require states and authorized tribes to include procedures to implement the 

antidegradation policy as a minimum requirement of their WQS. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0264-A2.001.014 

Author Name: Chard-McClary Shellie 

Organization: Association of Clean Water Administrators 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

3) Implementation methods for antidegradation should not be required to be adopted into state Water Quality Standards 

ACWA appreciates EPA's desire to achieve the goal of better permitting practices for antidegradation. We also agree 

that public transparency regarding states' implementation methods is important, and should help to further the goal of 

protecting existing water quality where it is better than that required by a state's WQS. However, we do not support a 

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requirement that those implementation methodologies be adopted into state WQS. While this is the desired option for 

many states, it is not mandated by the Act, nor is it necessarily conducive to enhanced water quality management. For 

example, there are states that use the flexibility that comes with not adopting their methods into rule to refine and 

improve their methodology more regularly. Therefore, while we continue to be strong advocates of transparency and 

clarity, this does not necessarily require rulemaking. Along these lines, ACWA suggests the following revisions. 

Suggested revisions: 

§ 131.12(b) The State shall [begin strikeout] develop [end strikeout] [begin new text] describe [end new text] and make 

available to the public methods for implementing the statewide antidegradation policy adopted pursuant to paragraph 

(a) of this section. A State's antidegradation implementation methods [begin strikeout] shall be designed to [end 

strikeout] achieve antidegradation protection consistent with paragraph (a) of this section. [begin new text] if/when [end 

new text] such methods [begin strikeout] must [end strikeout] ensure that: [end of suggested revision] 

§ 131.5(a)(3) Whether the State has adopted [begin strikeout] an [end strikeout] antidegradation [begin strikeout] policy 

[end strikeout] [begin new text] requirements [end new text] consistent with § 131.12 [begin strikeout] (a), and if the 

State has chosen to adopt implementation methods, whether those implementation methods are consistent with § 

131.12; [end strikeout] 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0266-A2.001.002 

Author Name: Reese Thomas 

Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 

1. Adopt Antidegradation Implementation as WQSs 

The FWF and the Davises request EPA amend 40 CFR 131.5(a), 131.6(d), and 131.12 to require states and tribes to 

adopt implementation methods for antidegradation WQSs as WQSs subject to EPA review under CWA Section 303( c). 

To ensure states and tribes meet the antidegradation policy of the CWA it is necessary for EPA require implementation 

methods for antidegradation WQSs be formally adopted by states and tribes as WQSs subject to EPA review under 

Section 303( c) of the CWA. State and tribe antidegradation implementation criteria often amend, revise, or abandon 

the antidegradation WQSs adopted by states and tribes. Due the current deficient state and tribal antidegradation 

implementation methodologies, to date the effluent limitations based upon TMDLs and WLAs established under CWA 

Section 303(d) have not complied with the antidegradation policy established under the CWA as mandated by CWA 

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Section 303(d)(4)(B). [FN1] 

EPA must require states and tribes adopt antidegradation implementation methods as WQS which EPA reviews as 

WQSs in order to ensure states and tribes implement the CWA antidegradation policy. See, 33 U.S.C. §1313(d)(4)(B); 

33 U.S.C. §1313( c)(3) & (4); Water Quality Guidance for Great Lakes System, 40 CFR Part 132; EPA Region IV's 

September 24, 1987 letter to Florida was an EPA determination that clustering of Florida's antidegradation WQSs in 

Florida's WQSs Chapter 62-302 was necessary to met the requirements of the CWA, a copy of the letter is attached 

hereto. 

EPA review of state and tribal antidegradation implementation methods is necessary for consistent nationwide 

implementation of the CWA's antidegradation policy. EPA must ensure that state and tribal antidegradation policy and 

implementation methods are consistent with, and at least as stringent as, the CWA antidegradation policy by requiring 

states and tribes to adopt their antidegradation implementation methods be adopted as WQSs subject to EPA review. 

See, ManaSota-88, Inc. v. Tidwell, 896 F.2d 1318, 1320 (11th Cir. 1990)(the state antidegradation policy and 

implementation criteria must be "consistent with and at least as stringent as the federal anti-degradation rule. 40 C.F.R. 

131.12."). 

"EPA's longstanding policy is that the implementation procedure [for state antidegradation WQSs] should be submitted 

to EPA for review" to determine if the implementation procedures fulfill the requirements of the state's antidegradation 

WQSs and the CWA antidegradation policy. See, EPA's 1998 ANPRM, pg. 36781 (Fed. Reg. July 7, 1998). "Often, 

however, implementation procedures are not submitted to EPA for review." Ibid. As a result, state and tribe 

antidegradation implementation procedures have significantly varied, have been not been effective in implementing 

antidegradation WQSs, and in some situations have "essentially set aside the intent of the CWA antidegradation 

policy." See, EPA's 1998 ANPRM, pg. 36781 (Fed. Reg. July 7, 1998); March 21, 2011, EPA memorandum, Denise 

Keehner, Director, Office of Wetlands, Oceans, and Watersheds (Keehner Memo). 

Requiring the implementation methods for antidegradation WQSs be formally adopted by states and tribes as WQSs 

would improve the implementation of the antidegradation WQS program, ensure implementation of the CWA 

antidegradation policy nationally in a consistent manner that is consistent with the intent of antidegradation provision, 

and provide transparency and greater public participation in the antidegradation review and implementation process. 

Antidegradation regulations are an integral part of the CWA, and provide important protections that are critical to the 

fulfillment of the CWA's objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's 

waters." See, Tier 2 Antidegradation Review and Significance Thresholds, dated August 10, 2005, by Ephraim S. King, 

Director of EPA Office of Science and Technology (King Memo). 

EPA requiring states and tribes to adopt antidegradation implementation methods as WQSs will provide the nation a 

greater protection of "human health and wildlife values, achieve healthy watersheds, and fulfill in a more cost-effective 

manner the CWA's primary objective to restore and maintain the nation's waters." See, Keehner Memo. 

Antidegradation policy and implementation criteria must be part of state and tribal WQSs which serve as the regulatory 

basis for water quality-based treatment controls and strategies beyond the technology-based level of treatment required 

by CWA sections 301(b) and 306. Id. 

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[FN1] CWA Section 303(d)(4)(B) requires any effluent limitation based upon a TMDL or any WLA established under 

CWA Section 303(d), or any WQS, or any permitting standard must be "subject to and consistent with the 

antidegradation policy established under [the CWA." 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0266-A2.001.012 

Author Name: Reese Thomas 

Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 

CONCLUSIONS 

1. The FWF and the Davises request EPA amend 40 CFR 131.5(a), 131.6(d), and 131.12(b) to require states and tribes 

to adopt implementation methods for antidegradation WQSs as WQSs subject to EPA review under CWA Section 303( 

c). 

2. The FWF and the Davises request EPA amend 40 C.F.R Section 131.12(b) to require states and tribes to adopt 

antidegradation implementation methods which clearly and specifically identify by list the activities which are subject to 

antidegradation implementation review, how the state and tribe intended to implement each aspect of its 

antidegradation policy, how public participation would occur, and how antidegradation decisions would be documented. 

EPA should require that the activities subject to antidegradation review must also include nonpoint source pollution, 

stormwater pollution, water withdrawals which effect water quality, water transfers which effect water quality 

downstream, best management practices (BMPs), and activities which the state or tribe propose to exempt from 

permitting. No waterbodies can be excepted from antidegradation review. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0267-A1.001.004 

Author Name: Ingle April 

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Organization: Georgia River Network 

Antidegradation Implementation: 

• We support EPA's proposal to clarify that antidegradation implementation procedures are part of the states' water 

quality standards and hence subject to EPA review and approval/disapproval. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0268-A2.001.020 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

The EPA Proposal–Part 3: Developing and Making Available to the Public Antidegradation Implementation Methods 

EPA's current regulations requiring implementation methods for antidegradation policies have not been particularly 

effective. Even if states have compiled methods in guidance documents, the result is a hodgepodge that is not 

appropriate for this key aspect of state water quality standards. EPA reviews those methods that states put in rules and 

EPA does not review those methods that are in guidance. The distinction is significant and results in a patchwork where 

there should be at least a modicum of federal consistency. Therefore, we strongly support EPA's requiring that 

antidegradation implementation methods be adopted as part of water quality standards. The alternative for which EPA 

seeks comment, namely to allow states to continue to keep implementation methods outside rules, maintains the status 

quo and is of no value to incorporate into EPA's regulations. 

A court-ordered informal review of Oregon's antidegradation implementation methods serves to make the case that all 

states should be held to the same standard, namely that antidegradation methods should be a part of a state's water 

quality standards. In March 2003 a federal district court, citing EPA's regulations and PUD No. 1 of Jefferson County v. 

Washington Department of Ecology, 114 S.Ct. 1900 (1994), ordered EPA to promulgate an antidegradation 

implementation plan for Oregon's waters in light of the state's wholly inadequate one-sentence implementation method. 

Nw. Envtl. Advocates v. EPA, 268 F. Supp. 2d at 1265 (2003). Nine years later, another federal district court, in another 

challenge to Oregon's inadequate antidegradation implementation methods, held that "EPA was required to review the 

[guidance Internal Management Directive] to ensure that it describes the required elements and complies with federal 

regulations such that it does not circumvent the purpose of the antidegradation policy." Nw. Envtl. Advocates v. EPA, 

3:05-CV-01876-AC, 2012 WL 653757 (D. Or. Feb. 28, 2012) at 33. In the remedy phase of the second case, the court 

ordered that "EPA shall review those portions of the Oregon's Internal Management Directive for antidegradation 

implementation ("IMD") that were not incorporated into Oregon's water quality standards to ensure that the IMD 

describes the required elements and complies with federal antidegradation regulations such that it docs not circumvent 

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the purpose of Oregon's antidegradation policy." EPA subsequently wrote a letter to Oregon describing its review of 

Oregon's guidance. 

This EPA review found significant deficiencies in the Oregon antidegradation implementation methods, concluding in 

summary: 

The EPA has identified the following areas where ODEQ's IMD is not consistent with 40 CFR 131.12: 

- Existing use protection, with regard to applicability and method for implementation (see sections II.A and III). 

- The use of measurable and statistical significance when determining whether an activity would lower water quality in 

the implementation of Tier 2 and Tier 3 (see section II.B.2.a). 

- Implementation of the requirement at 40 CFR 131.12(a)(2) that when allowing a lowering a of water quality "...the 

State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing 

point sources and cost-effective and reasonable best management practices for nonpoint source control." (see section 

IV.D). 

- How antidegradation is addressed for general permits (see section VI). 

In addition: 

- To ensure consistency with 40 CFR Part 131,ODEQ should clarify its approach to addressing parameters in Water 

Quality Limited Waters, where water quality is not better than necessary to meet the applicable criteria, when a lowering 

of water quality is proposed (see section VII). 

- Clarification of how ODEQ interprets its definition of "Waters of the state" is necessary before the EPA can determine 

if the scope of ODEQ's IMD with regard the waters covered is consistent with the CWA and 40 CFR 131.12 (see section 

I). 

EPA, The EPA's Review of Portions of Oregon's March 2001 Antidegradation Policy Implementation Internal 

Management Directive for NPDES Permits and Section 401 Water Quality Certifications, 3-4 (Aug. 8, 2013) [0268-A6]. 

Despite the breadth and significance of problems EPA identified in the state's antidegradation implementation methods, 

EPA assured Oregon that the review was not an Administrator's Determination under Section 303(c)(4)(B) and that the 

agency was merely "informing" Oregon of its review and conclusions. See Letter to Gregory Aldrich, Oregon DEQ, from 

Dan Opalski, EPA (Aug. 8, 2013) [0268-A7]. There is not even a recommendation in the cover letter that Oregon fix the 

defects EPA has identified. It is our opinion that this very recent example demonstrates why it is imperative that EPA's 

rule require that state antidegradation implementation methods be in state rules. There simply is no other way for EPA 

to achieve what it says it intends: "states and tribes must develop and make available to the public antidegradation 

implementation methods to improve program implementation, ensure consistency with the CWA, and provide 

transparency as to applicable state and tribal antidegradation review requirements." Fed. Reg. at 54529. What precisely 

will EPA do with states, such as Oregon, which have demonstrated their guidance implementation methods are not 

sufficient to ensure implementation and are not consistent with the CWA? EPA's "encourage[ment of] states and tribes 

to provide a robust and transparent process for developing and making available to the public their antidegradation 

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implementation methods," id., is really quite irrelevant if the EPA regulations do not clearly require action by the state, 

ways by which EPA will judge the actions of the states, and remedies if the state fails. Requiring states to have 

implementation methods in rules would not remove, as EPA perhaps implies, id., states' "primary role," but, rather it 

would ensure that states meet consistent requirements in executing that primary role across the country. (EPA does 

not, for example, argue that a requirement that states put criteria into rule removes states' primary role in establishing 

standards.) It would likewise ensure that EPA's responses to states' primary roles are consistent. That fully one half of 

states have put themselves in a position for EPA to conduct formal reviews of their antidegradation policy 

implementation methods demonstrates that it is not as onerous a requirement as one might otherwise conclude from 

the sound of things. That states, such as Oregon, can evade review and completely evade response to informal review 

obtained after two successful lawsuits on the subject demonstrates why it is essential that EPA require these 

antidegradation implementation methods to be in rules. Likewise, since EPA conducted this informal review only upon 

order of a court, it is equally clear that EPA evades its own responsibilities so long as states do not have to include their 

implementation methods in rules. 

We agree with EPA's point that the direct implications for NPDES permits is another reason to make sure these 

methods are in rules, not guidance. While we lack written evidence, we have heard concerns expressed by state and 

permittee attorneys in three states about using or citing guidance in NPDES permits when there are no underlying rules. 

This concern has become greater in recent years. While the issues about which this concern has been expressed have 

not involved antidegradation policies (e.g., pollutant credit trading, exceptions to use of toxic criteria, and mixing zones), 

the underlying concern is the same: there are increasing pressures to not rely on guidance alone when issuing NPDES 

permits and certainly to not cite guidance in a permit. It seems only a matter of time until that same concern is applied 

to antidegradation implementation methods that are set out solely in guidance documents whether the concern stems 

from regulatory agencies concerned about legal challenges to permit conditions or permittees concerned about 

challenges asserting violations of permit conditions. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

7.f.i: Section C 

Comment ID 0268-A2.001.022 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

Likewise we support EPA's revising 40 C.F.R. § 131.5 (EPA Authority) to include a reference to whether the state has 

demonstrated that it has a policy and methods to ensure protection of existing uses and a policy and method to ensure 

Tier 2 review. 

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Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0268-A2.001.045 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

4. Amend § 131.5 by: 

b. adding a new paragraph (a)(3). 

(a)(3) Whether the State has adopted an antidegradation policy consistent with § 131.12(a), and [begin strikeout] if the 

State has chosen to [end strikeout] adopt [begin new text] ed [end new text] implementation [begin strikeout] methods, 

whether those implementation methods are [end strikeout] consistent with § 131.12; 

We strongly object to EPA's leaving to the discretion of states whether to adopt implementation methods thereby putting 

those methods under EPA review. We urge EPA to require all states to adopt implementation methods and to edit this 

paragraph accordingly. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

Comment ID 0268-A2.001.047 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

7. Amend § 131.12 by revising the section heading and paragraphs (a) introductory text and (a)(2), and adding 

paragraph (b) to read as follows: 

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(a) The State shall [begin strikeout] develop and [end strikeout] adopt a statewide antidegradation policy. The 

antidegradation policy shall, at a minimum, be consistent with the following: * * * 

(b) The State shall [begin new text] adopt [end new text] [begin strikeout] develop and make available to the public [end 

strikeout] statewide methods for implementing the antidegradation policy adopted pursuant to paragraph (a) of this 

section. A State's antidegradation implementation methods shall be designed to achieve antidegradation protection 

consistent with paragraph (a) of this section. Such methods must ensure that: 

[begin new text] (1) Existing uses are identified and protected in regulatory actions taken pursuant to CWA Sections 

303(c), 303(d), 401, and 402. [end new text] 

([begin strikeout] 1 [end strikeout] [begin new text] 2 [end new text]) High quality waters are identified on a parameterby-parameter basis [begin strikeout] or on a water body-by-water body basis at the State's discretion, but must not 

exclude any water body from high quality water protection solely because not all of the uses specified in CWA section 

101(a)(2) are attained; [end strikeout] and 

([begin strikeout] 2 [end strikeout] [begin new text] 3 [end new text]) The State will only make a finding that lowering 

high water quality is necessary, pursuant to paragraph (a)(2) of this section, after conducting an alternatives analysis 

that evaluates a range of non-degrading and minimally degrading practicable alternatives that have the potential to 

prevent or minimize the degradation associated with the proposed activity. If the State can identify any-practicable 

alternatives, the State must choose one of those alternatives to implement when authorizing a lowering of high water 

quality. 

We recommend that EPA require all states to adopt into rules their antidegradation implementation methods, ensure 

that antidegradation methods do not bypass protection of existing uses, and limit the identification of high quality waters 

to the parameter-by-parameter approach by accepting the redlined edits above. In addition, the use of the word 

"develop" in the existing rules does not add anything or if it does, it is not clear what it is adding. Even if EPA disregards 

our comments on these matters, it is unclear why EPA is not specifically requiring states to develop antidegradation 

implementation methods that address Tier 1 protections. There is no rationale for such an omission and we, instead, 

urge EPA to provide more detail about what states should address to achieve Tier 1 protections in all their waters. Our 

suggestion above is a very broad and basic approach to doing so. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

7.f.i: Section P 

7.g.iii 

Comment ID 0269-A2.001.005 

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Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

(4) Antidegradation 

EPA is proposing several changes to 131.12 regarding implementing antidegradation requirements. EPA also seeks 

feedback on whether federal regulations should be changed to mandate that States adopt antidegradation 

implementation procedures in state WQS. 

The EPA proposal appears to presume that states have adopted an antidegradation policy in state regulation. 

NYSDEC's comments-regarding antidegradation are in the context that New York has adopted an antidegradation 

policy which has been approved by EPA, though the policy is not incorporated into state regulation. NYSDEC's current 

understanding is that its antidegradation policy, established by NYSDEC Commissioner in 1985 and approved by EPA, 

meets the federal requirement for state adoption of an antidegradation policy. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section E 

Comment ID 0269-A2.001.008 

Author Name: Klotz Mark 

Organization: New York State Department of Environmental Conservation 

c) Implementation Procedures. EPA proposes to specify in 131.12 that States must develop and make available to the 

public their antidegradation implementation methods. EPA further seeks feedback on whether EPA should require that 

States adopt such methods in state regulation. 

NYSDEC strongly opposes any requirement that states must promulgate antidegradation procedures into state 

regulation. In New York, protection against antidegradation is a fundamental element of our water program. 

Antidegradation procedures are woven through a large network of existing state law, regulation, and policy. 

Forced promulgation of antidegradation implementation methods into New York's regulations is not mandated by the 

Clean Water Act, would not add protection, and could remove flexibility that the current New York approach provides to 

focus limited resources on aspects of protection that are most needed. 

Response 

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For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0271-A1.001.008 

Author Name: Montoya Victor 

Organization: Pueblo of Sandia 

8. Addition of paragraph (b) to § 131.12. The Pueblo of Sandia has reviewed this addition and elements pertaining to it. 

The Pueblo of Sandia understands that antidegradation is an essential part of WQS but believes that there is already 

transparency in the regulations that allows public participation. The Pueblo of Sandia is of the opinion that the EPA 

should not require that implementation methods be adopted as WQS and thus subject to EPA's review and approval or 

disapproval. The implementation methods should be left to the states and tribes discretion. This would be time 

consuming and tedious making the triennial review process more burdensome. Requiring that implementation methods 

be adopted as WQS will only make a long process longer. The EPA should explicitly specify in the regulations that state 

and tribes are not required to adopt antidgradation implementation methods in the WQS. This implementation should be 

left to the states and tribes through their own processes, which are usually available to the public anyway through other 

means i.e. the NPDES permits process. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section D 

Comment ID 0272-A2.001.018 

Author Name: Jennifer Chavez Janette Brimmer 

Organization: Earthjustice on behalf of 28 Environmental Organizations. See pages 23-27 

C. The Water Protection Groups Support The Requirement To Include Antidegradation Implementation In A State's 

Water Quality Standards. 

The Water Protection Groups support full inclusion of antidegradation implementation into a state's water quality 

standards and full review and approval/disapproval by EPA of those implementation plans and processes. 78 Fed. Reg. 

at 54,525. EPA frequently approves sometimes questionable state water quality standards, particularly antidegradation 

requirements, on the promise of a state to interpret or apply the requirement in a particular way. Those promises or 

requirements regarding implementation must be plainly incorporated into state rules and subject to express EPA 

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approval/disapproval in order to ensure that states actually follow through on promises made to avoid any enforcement 

questions later and to create disincentives for states to apply antidegradation requirements in a manner inconsistent 

with their representations to EPA and the public. 

For example, Idaho recently won approval (at least in part) from EPA for its new antidegradation requirements. Idaho's 

proposed rules caused concern because they allowed for "short term" (undefined) degradation. When confronted on 

this, the state explained to EPA that short term degradation would only be allowed on "restoration" projects. On that 

assurance EPA approved Idaho's rules. In the short time the rules have been in practice, however, Idaho routinely 

applies its rules to allow "short term" degradation of water quality regardless of the type of project, restoration or 

otherwise. EPA did not discover this problem through monitoring of state compliance. Rather, citizens advocates have 

reported this problem to EPA. This places unfair burdens on unfunded citizens to do EPA's job under the Clean Water 

Act. The proposed elaborate and loophole-riddled system for retaining the failed water body approach to designating 

high quality waters will be just another instance of that. [FN6] 

New York provides another example. Currently the state's antidegradation policy and implementation process are 

embodied only in a 1985 guidance document. See http://www.dec.ny.gov/docs/water_pdf/togs139.pdf. Given the crucial 

role that antidegradation requirements play in the statutory framework for protecting and enhancing water quality, both 

the policy and the implementation procedures need to be incorporated in the state's water quality standards and subject 

to EPA review. 

[FN6] Minnesota's new proposed changes to its antidegradation requirements also allow for so-called "temporary" 

degradation and does not even offer the fig leaf of it being for "restoration" projects. See proposed changes to 

Minnesota Rules, 7050.0345, subd. 4 at http://www.pca.state.mn.us/index.php/water/water-permits-and-rules/waterrulemaking/nondegradation-rulemaking.html. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section B 

7.f.i: Section P 

7.d.ii 

Comment ID 0276-A2.001.007 

Author Name: Alves James 

Organization: Hopping Green & Sams on behalf of Florida Electric Power Coordinating Group, Inc. 

Anti-Degradation Implementation Methods 

Analogous to the proposed UAA language, EPA is proposing the creation of yet another level of regulation where there 

does not appear to be a problem to be addressed. 

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The current version of 40 C.F.R. § 131.12 already directs the states to adopt a statewide antidegradation policy and 

"identify the methods for implementing such a policy." The existing regulations mandate that both the antidegradation 

policy and the "implementation methods" must be consistent with paragraphs 131.12(a)(1) through (4), which set out 

the substantive requirements of state antidegradation provisions. 

The application and implementation of state water quality standards is addressed in existing regulations at 40 C.F.R. § 

131.13 which states: 

States may, at their discretion, include in their State standards, policies generally affecting their application and 

implementation, such as mixing zones, low flows and variances. Such policies are subject to EPA review and approval. 

Not only are implementation policies already contemplated under current EPA regulations; they are also subject to EPA 

review and approval. 

The proposed language is very prescriptive and further erodes the states' discretion. The proposed alternatives analysis 

is particularly onerous and essentially appears to force the states to perform a use attainability analysis when 

implementing State antidegradation provisions. Mandating that the states must choose any practible alternative is a 

level of federal oversight that falls just short of federal implementation of the states' water quality programs, and is 

contrary to the state/federal partnership concept that is the basis for cooperative federalism under the Clean Water Act. 

EPA has failed to articulate an existing problem with state antidegradation policies that must be solved, much less a 

problem that justifies the proscriptive federal mandates that have been proposed. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section L 

3.a 

12.a 

Comment ID 0278-A2.001.019 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

Implementation Methods 

NACWA wholeheartedly agrees with EPA that state antidegradation implementation methods should be open and 

available to the public, including, of course, to permittees who are required to undergo antidegradation review. 

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However, NACWA does not believe that these methods should be - or need to be - incorporated into a state's WQS 

regulation and thereby subject to EPA review and approval (or disapproval). 

Of course, states must have policies that meet minimum federal requirements, but States should have exclusive 

authority to decide how best to implement these policies, recognizing that each state has a different set of 

administrative rules and procedures, not to mention unique water environments, goals and approaches. Across the 

country today, there are many examples of excellent state antidegradation policies and implementation procedures, but 

few are the same, and the differences in process and approach are fundamental to the differences between and among 

states generally. For this reason, we believe it would more appropriate for EPA to allow states to develop procedures 

that best match their state process and law, than to dictate this process as a matter of federal law. NACWA strongly 

supports EPA's "may, but not required" option as presented at 78 Fed. Reg. at 54529 col. 2. 

In its analysis, EPA properly identifies the tension between requiring and not requiring implementation procedures to be 

part of a state's water quality standards regulation. However, some of EPA's considerations in favor of requiring them 

actually cut against doing so. For example, EPA notes that state approaches to implementing antidegradation 

requirements may have direct implications for NPDES permits, as well as other federal permits and licenses. But the 

fact that antidegradation is a key factor in permitting decisions gives states, EPA and interested stakeholders a more 

direct and immediate process safeguard against deficient or defective implementation - they can simply challenge the 

permits themselves. Thus, there is no reason to require more from the states in their standards regulations, or to extend 

EPA disapproval authority to the states' implementation methods. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.f.i: Section C 

Comment ID 0280-A2.001.009 

Author Name: Aspatore Amanda 

Organization: National Mining Association 

EPA Approval and Minimum Implementation Requirements 

EPA should not require states to include antidegradation implementation methods as part of their WQS submissions for 

EPA review. States clearly are best situated to make assessments of local conditions, and are already required to 

ensure that their policies are consistent with the CWA. Mandating states to submit their implementation methods to EPA 

for approval would effectively usurp that authority, and add a superfluous layer of bureaucracy to the regulatory 

process. 

Importantly, under CWA Sec. 303(c)(2)(A), a "revised or new water quality standard" submitted to EPA for approval 

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Chapter 2 - Comment Documents Antidegradation 

"shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters 

based upon such uses." The CWA only mentions antidegradation policies in Sec. 303(d)(4), which states that changes 

to effluent limitations, water quality standards and permitting standards may be made "only if such revision is subject to 

and consistent with the antidegradation policy established under this section." States' antidegradation policies are 

included in water quality standards submissions subject to EPA review, and this reflects the maximum extent of EPA's 

authority over state antidegradation policies under the CWA. Elements of implementation procedures are properly and 

most efficiently left to the states. 

Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

Comment ID 0283-A1.001.011 

Author Name: Thorme Melissa 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

E. Antidegradation U.S. EPA Should Not Have Approval Policies 

1. U.S. EPA Should Not Have Approval Authority over State Antidegradation Policies 

Under CWA section 303, water quality standards are comprised of designated uses and water quality criteria based 

upon such uses. (33 U.S.C. §1313(c)(2)(A).) Antidegradation is not part of the definition of water quality standard under 

the Act and U.S. EPA should not broaden the statutory definition to include antidegradation. The only mention of the 

antidegradation in the Act was added in passing in the 1987 Amendments in relation to effluent limitations, not water 

quality standards (see Pub. L. 100-4, 101 Stat. 39, 68; 33 U.S.C. §1313(d)(4)(B)(allowing permitting standards to be 

"revised only if such revision is subject to and consistent with the antidegradation policy established under this 

section"). [FN2] Thus, U.S. EPA's role related to antidegradation should be limited to ensuring that States have an 

antidegradation policy and reviewing permits to ensure that antidegradation is properly considered when applicable in 

setting new effluent limitations. U.S. EPA should not have a role in approving the content of State implementation 

policies. Thus, we support the alternative of not requiring States to adopt their antidegradation implementation methods 

as water quality standards subject to U.S. EPA approval. 

[FN2] As the proposed regulations point out, "[a]ntidegradation reviews are applicable to revisions to effluent limitations 

based on a TMDL, wasteload allocation, or water quality standard, but they are not required for revisions to a TMDL, 

wasteload allocation , or water quality standard." (78 Fed. Reg. 54526 (emphasis added).) Thus because 

antidegradation applies to revisions of effluent limitations, not water quality standards, U.S. EPA should not have any 

approval authority over antidegradation as a part of a water quality standard. 

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Response 

For response to this comment, see the following response essay(s): 

7.f.i 

7.f.i: Section A 

7.m 

7.F.II - ANTIDEG IMP METH - GENERAL 

Comment ID 0151-A1.001.007 

Author Name: Tate Michael 

Organization: Kansas Department of Health and Environment 

As an aside, we do believe that the application of antidegradation should be directed solely at permitting issues. Despite 

the placement of the antidegradation reference in Section 303(d), there has been no clear-cut guidance on how to 

incorporate antidegradation as a basis for listing waters under Section 303(d). Section 303(d) (1) (A) requires each 

State identify those waters where effluent limitations are not stringent enough to implement any water quality standard 

applied to those waters. The regulations, pertaining to water quality standards at 40 CFR 131.6, identify the minimum 

requirements for submitting water quality standards. Among those requirements are the triad of designated uses, water 

quality criteria and an antidegradation policy. However, an antidegradation policy is not a provision for detecting and 

abating degrading trends in water quality. For Kansas, the antidegradation policy is the means of mitigating the impact 

of new and expanding sources subject to NPDES permitting. Being out-front of those impacts means that portion of our 

water quality standards creates a non-sequitur as a basis for listing waters under Section 303(d) for not meeting water 

quality standards. Until EPA clarifies the relationship between antidegradation and Section 303(d), it needs to clearly 

state within the currently proposed rulemaking that the present scope of antidegradation lies within the permitting 

process 

Response 

For response to this comment, see the following response essay(s): 

7.f.ii 

7.f.ii: Section C 

7.e.i 

7.f.i 

7.g.iii 

Comment ID 0207-A1.001.009 

Author Name: Bodine Susan 

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Organization: American Farm Bureau Federation et al. 

We agree that state methods for implementing antidegradation policies are not subject to EPA review. 

Response 

For response to this comment, see the following response essay(s): 

7.f.ii 

7.f.ii: Section B 

7.f.i 

Comment ID 0268-A2.001.015 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

And we agree that the implementation methods for antidegradation are absolutely key to the policy's success. 

Response 

For response to this comment, see the following response essay(s): 

7.f.ii 

7.f.ii: Section A 

7.G - ANTIDEG - MIN ELEMENTS 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

7.G.I - ANTIDEG ME - SUPP ID IN PREAMBLE 

Comment ID 0129-A2.001.014 

Author Name: Steidel Robert
 

Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc.
 

D. Minimum Requirements for Implementation Methods 

Finally, in addressing the minimum required elements of a state's implementation methods, EPA correctly relies on the 

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existing elements spelled out in section 131.12 as they would be modified by the (now proposed) alternatives analysis 

requirement. This is correct, and we urge EPA to avoid any further steps as they would be both unnecessary and 

inconsistent with the federal/state division of responsibility required by CWA section 303. 

Response 

For response to this comment, see the following response essay(s): 

7.g.i 

7.g.i: Section A 

Comment ID 0150-A1.001.012 

Author Name: Heisig-Mitchell Jamie 

Organization: Hampton Roads Sanitation District 

4. Minimum Requirements for Implementation Methods 

In addressing the minimum required elements of a state's implementation methods, EPA correctly relies on the existing 

elements spelled out in section 131.12 as they would be modified by the (now proposed) alternatives analysis 

requirement. This is correct, and HRSD urges EPA to avoid any further steps as they would be both unnecessary and 

inconsistent with the federal/state division of responsibility required by CWA section 303. 

Response 

For response to this comment, see the following response essay(s): 

7.g.i 

7.g.i: Section A 

Comment ID 0165-A2.001.012 

Author Name: Gunderson Steven 

Organization: Colorado Department of Public Health and Environment 

11. Antidegradation Implementation - Minimum Elements of Antidegradation Implementation Methods 

Colorado supports the list of minimum elements of antidegradation implementation methods. These elements are 

consistent with past EPA direction and do not represent a change in course. 

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Response 

For response to this comment, see the following response essay(s): 

7.g.i 

7.g.i: Section A 

Comment ID 0199-A1.001.014 

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 

d. Minimum elements of an Antidegradation Implementation method and EPA review 

If a state or tribe adopts antidegradation implementation methods as WQS, EPA must review and decide whether to 

approve the methods. As part of its review, EPA must decide whether the methods adopted as WQS comply with 

federal regulations and the CWA. To facilitate the development of antidegradation policies and EPA review, EPA in this 

Federal Register notice provides a list of the areas that an implementation method would need to address under current 

federal antidegradation rules and proposed rules. To promote clarity and guidance for states, tribes, the regulated 

community, and the public, we support this proposed regulation revision. 

Response 

For response to this comment, see the following response essay(s): 

7.g.i 

7.g.i: Section A 

Comment ID 0229-A2.001.011 

Author Name: Tillison Naomi 

Organization: Bad River Band of Lake Superior Tribe of Chippewa Indians 

Furthermore, the EPA's narrative in part III.E.4. of the federal register notice (pages 54530-54531) describes the 

minimum elements of an antidegradation implementation method. These minimum requirements need to be 

incorporated into the proposed changes as this language is currently absent from the proposed revisions to 40 CFR 

131.12. 

Response 

For response to this comment, see the following response essay(s): 

08/04/2015 05:01 PM EDT 2-844 
Chapter 2 - Comment Documents Antidegradation 

7.g.i 

7.g.i: Section B 

Comment ID 0249-A2.001.014 

Author Name: Calamita F. Paul
 

Organization: General Counsel on behalf of The Wet Weather Partnership et al.
 

D. Minimum Requirements for Implementation Methods 

Finally, in addressing the minimum required elements of a state's implementation methods, EPA correctly relies on the 

existing elements spelled out in section 131.12 as they would be modified by the (now proposed) alternatives analysis 

requirement. This is correct, and we urge EPA to avoid any further steps as they would be both unnecessary and 

inconsistent with the federal/state division of responsibility required by CWA section 303. 

Response 

For response to this comment, see the following response essay(s): 

7.g.i 

7.g.i: Section A 

Comment ID 0259-A2.001.004 

Author Name: Naylor Char 

Organization: Puyallup Tribe of Indians 

We also recommend EPA include a list of minimum elements to be included in states and tribes implementation 

methods to be consistent with EPA's regulations. 

Response 

For response to this comment, see the following response essay(s): 

7.g.i 

7.g.i: Section A 

Comment ID 0263-A2.001.011 

Author Name: Gretchen Watkins Larry Wawronowicz 

08/04/2015 05:01 PM EDT 2-845 
Chapter 2 - Comment Documents Antidegradation 

Organization: Lac du Flambeau Band of Lake Superior Tribe of Chippewa Indians 

Furthermore, the EPA's narrative in part III.E.4. of the federal register notice (pages 54530-54531) describes the 

minimum elements of an antidegradation implementation method. These minimum requirements need to be 

incorporated into the proposed changes as this language is currently absent from the proposed revisions to 40 CFR 

131.12. 

Response 

For response to this comment, see the following response essay(s): 

7.g.i 

7.g.i: Section B 

Comment ID 0267-A1.001.005 

Author Name: Ingle April 

Organization: Georgia River Network 

• We support EPA's proposal to specify that a state's implementation procedures must include certain minimum 

elements. These minimum elements should include, among other things: 

o A process for ensuring existing uses are protected under Tier 1 protections. 

o A method for reviewing all reasonable alternatives to a new or increased 

discharge as part of a Tier 2 review and a requirement that discharge limits be set 

based on the least polluting, reasonable alternative. 

o A description of the factors and process for determining if a new or increased 

discharge will accommodate "important" social or economic development. 

o A description of the public notice and comment requirements. 

o An explanation of both the process for designating and for protecting Tier 3 

waters (also known as Outstanding National Resource Waters, Outstanding Resource Waters, or other state-specific 

names). 

Response 

For response to this comment, see the following response essay(s): 

7.g.i 

7.g.i: Section D 

08/04/2015 05:01 PM EDT 2-846 
Chapter 2 - Comment Documents Antidegradation 

Comment ID 0268-A2.001.021 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

With regard to other related provisions in the existing regulations, we support EPA's revising 40 C.F.R. § 131.6 

(Mininum Requirements for Submission) to clarify that not only the antidegradation policy but the implementation 

methods must be included in state submissions of water quality standards to EPA. It is currently implied and should be 

made clear. 

Response 

For response to this comment, see the following response essay(s): 

7.g.i 

7.g.i: Section C 

7.G.II - ANTIDEG ME - OPP ID IN PREAMBLE 

Comment ID 0119-A1.001.011 

Author Name: Lemke Lee 

Organization: Georgia Mining Association 

Minimum Elements of Antidegradation Implementation Methods 

EPA proposes to "facilitate" development of implementation methods by codifying in a Preamble a set of minimum 

requirements for such methods to be approved as WQS. GMA believes that codifying regulatory requirements within a 

Preamble is highly inappropriate and does not "facilitate" development of state and tribal programs that have been in 

place and successful for 30 years. Rather, we believe this is an effort of EPA to federalize control over Clean Water Act 

implementation while leaving state and tribal governments responsible for funding the programs. If EPA intends to 

propose such a radical power shift after 30 years of successful program implementation, it should articulate proposed 

rules in plain language, rather than by "facilitating", "describing", and "clarifying" power out of the hands of state and 

tribal governments. 

Response 

For response to this comment, see the following response essay(s): 

7.g.ii 

08/04/2015 05:01 PM EDT 2-847 
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7.g.ii: Section A 

Comment ID 0196-A1.001.014 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

Likewise, EPA should not require states to submit minimum elements of anti-degradation implementation methods as 

proposed in the draft rule. Again, primacy states under the CWA are given the authority to implement their water quality 

standards. The only constraint placed on the states is that they may not act in a manner inconsistent with the Act. While 

EPA may have a role to ensure that state water quality standards meet the requirements of the Act and are being 

implemented, new regulatory requirements are not the appropriate approach to ensuring implementation of state antidegradation programs. 

Response 

For response to this comment, see the following response essay(s): 

7.g.ii 

7.g.ii: Section B 

7.m 

Comment ID 0201-A1.001.024 

Author Name: Godfrey Mike 

Organization: Alabama Power 

Minimum Elements of an Antidegradation Implementation Method 

EPA has set out in the Draft Rule a number of minimally-required implementation methods in order to "facilitate" States' 

development of such methods. Doing so in the Preamble to the Draft Rule is improper. Moreover, it is questionable why 

such facilitation is needed now, after States' antidegradation policies have been in place for 30 years. Like EPA's 

proposal to require States' antidegradation implementation methods as WQS, subject to EPA review and approval, 

EPA's inclusion of minimum elements is an illegitimate way for the agency to attempt to control how States develop 

their antidegradation procedures. Congress granted States considerable discretion to develop these antidegradation 

procedures and implementation methods. EPA acknowledges this in the Draft Rule. 78 Fed. Reg. at 54,530. EPA 

should refrain from impermissibly infringing upon States' authorities to set these standards in an attempt to impose its 

preferred federal procedures over ones that have been effectively used by States for the past 30 years. 

Response 

08/04/2015 05:01 PM EDT 2-848 
Chapter 2 - Comment Documents Antidegradation 

For response to this comment, see the following response essay(s): 

7.g.ii 

7.g.ii: Section A 

Comment ID 0203-A1.001.017 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

Moreover, another of EPA's proposals is for EPA to prescribe minimum elements of state antidegradation 

implementation procedures. If EPA is going to (1) define what the implementation procedures must contain and then (2) 

approve or disapprove them, there will be little left of states' responsibility. 

Response 

For response to this comment, see the following response essay(s): 

7.g.ii 

7.g.ii: Section D 

Comment ID 0203-A1.001.019 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

With respect to alternative limits on discharges of heat under § 316(a) of the Clean Water Act, EPA does not propose to 

change the actual wording of the rule. But EPA says in the preamble that state antidegradation "implementation 

methods" (which EPA may decide to spell out for the states) should ensure consistency with § 316 where there is 

potential water quality impairment from thermal discharges (78 Fed. Reg. 54,530 col. 3). UWAG agrees that no change 

should be made. 

But the problem is not with the wording of the rule (which has always meant that new or modified facilities that have 

made a successful § 316(a) demonstration thereby satisfy all water quality standards requirements, including 

antidegradation requirements), but rather a handful of interpretations by EPA Regions suggesting that, even if a thermal 

discharge meets water quality criteria, it must also preserve a "balanced indigenous population." These interpretations 

suggest that § 316(a) is not an alternate to ordinary water quality-based limits but a stand-alone requirement that must 

be met in addition to complying with limits based on ordinary water quality criteria. These interpretations are at odds 

with § 316(a), which on its face is an alternative to ordinary water quality-based limits. EPA should make this clear. 

Response 

08/04/2015 05:01 PM EDT 2-849 
Chapter 2 - Comment Documents Antidegradation 

For response to this comment, see the following response essay(s): 

7.g.ii 

7.g.ii: Section E 

Comment ID 0207-A1.001.008 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

Antidegradation - proposed §§ 131.5 and 131.12: 

•Minimum requirements for antidegradation implementation methods and EPA review - We disagree that EPA can 

impose minimum requirements on antidegradation implementation methods. 

Response 

For response to this comment, see the following response essay(s): 

7.g.ii 

7.g.ii: Section A 

Comment ID 0207-A1.001.026 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

1. Minimum Requirements. 

We strongly disagree with EPA's proposal to establish requirements for state antidegradation implementation methods 

in proposed § 131.12 and to review state antidegradation policies for consistency with those minimum requirements in 

proposed § 131.5(a)(3). Current EPA regulations at 40 CFR § 131.12 requires states to "develop and adopt a statewide 

antidegradation policy and identify the methods for implementing such policy pursuant to this subpart." Current EPA 

regulations also require at 40 CFR § 131.6 that a water quality standards submission include an antidegradation policy. 

These existing regulations already apply (or exceed) maximum extent of EPA's authority over state antidegradation 

policies under the CWA. The CWA does not specify elements of implementation procedures, and therefore such 

elements are most properly and efficiently left to the states. 

In particular, we are concerned about the requirement in proposed § 131.12(b)(1) that State implementation methods 

must "ensure" that a state conducts an antidegradation review for a water body on its impaired waters list, if the water 

body exceeds the quality needed to achieve one of the uses specified in CWA § 101(a)(2). Such a requirement is 

inconsistent with both existing state policies that have withstood legal challenge and the position that EPA has taken to 

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defend such policies. [FN2] It also is inconsistent with the CWA to consider an impaired water to be high quality water, 

and would be a misallocation of state resources to require an anti-degradation review for impaired water. Further, such 

a requirement would be inconsistent with state policies to encourage infilling and protect green space by placing 

additional barriers on discharges near impaired waters. 

[FN2] See, e.g. Kentucky Waterways Alliance v. EPA, 540 F.3d 466 (6th Cir. 2008) (upholding EPA approval of the 

provisions of Kentucky's antidegradation policy that exclude impaired waters from anti-degradation review). 

Response 

For response to this comment, see the following response essay(s): 

7.g.ii 

7.g.ii: Section A 

7.g.ii: Section F 

Comment ID 0212-A1.001.014 

Author Name: Norton Kelly 

Organization: Arizona Mining Association 

• Scope of alternatives analysis for Tier 2 (high quality) waters: The AMA is concerned with the breadth of the 

antidegradation alternatives analysis contemplated for Tier 2 waters, which the preamble suggests should include 

consideration of, inter alia, “no discharge," "process changes," and "reduction in scale of the project." See 78 Fed. Reg. 

at 54529. The AMA strongly believes that states will not necessarily have the experience or background to conduct this 

type of alternatives analysis, and even more strongly believes that states should not decide on the scope of an 

applicant's proposed project (as they could do under the "reduction in scale" concept). The AMA supports the notion 

that only "practicable" alternatives be considered, but as the term "practicable" is not defined in these regulations, there 

is no apparent limit to the scope of the potential alternatives analysis that may be required. 

Because of these concerns, the AMA suggests that the rule require only that a state evaluate "reasonable and costeffective measures that would reduce or eliminate the potential degradation," rather than requiring the sort of complex 

alternatives analysis apparently contemplated by the rule. 

Response 

For response to this comment, see the following response essay(s): 

7.g.ii 

7.g.ii: Section H 

7.e.ii 

08/04/2015 05:01 PM EDT 2-851 
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Comment ID 0268-A2.001.023 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

Minimum Elements of an Antidegradation Implementation Method 

It is unclear, and EPA does not comment on the matter in the notice, why EPA is not proposing to include in its 

proposed rules content on the minimum elements of antidegradation implementation methods. Instead, EPA intends to 

leave this material in the preamble. If EPA believes that this list is obvious, as it is based on requirements that currently 

are found in the regulations, it should not present a huge problem to repeat them or cross reference them. If EPA thinks 

that by putting them into federal rules they will be a matter of contention that fact alone suggests that putting them in the 

preamble is an inadequate step. We are not clear on EPA's thinking because the preamble is silent on this subject and 

only EPA knows what it has heard from states and tribes on this issue. However, it is our view that not only should the 

material included in the preamble be included in rule but EPA should add some additional detail. In particular a key 

provision that has been widely ignored, that of existing use protection, requires additional detail precisely because it has 

been widely ignored. In addition, if EPA continues along the path it is currently on, which is to leave the language in the 

preamble and not include it in the rule, there is no reason whatsoever to be as curt and unhelpful as the current 

preamble language is. It states merely, "[e]xisting use protection: the state or tribe will ensure the maintenance and 

protection of all existing uses and the water quality necessary to protect the existing uses." This says nothing more than 

the existing regulations and provides no guidance whatsoever to states on how they could or should provide protection 

to existing uses. It does not even mention that existing use protection must be a part of issuing NPDES permits, 

identifying impaired waters pursuant to section 303(d), developing TMDLs to meet water quality standards, and issuing 

Section 401 certifications. While the Tier 2 review by definition is a review of certain actions, namely the issuance of 

NPDES permits (generally only new or expanded loads), and ONRW protection is a matter of merely having some rules 

or mechanism in place, it is not necessarily obvious when a state must ensure Tier 1 protections. That merits at least a 

passing mention in EPA's water quality standards rules. 

Response 

For response to this comment, see the following response essay(s): 

7.g.ii 

7.g.ii: Section G 

Comment ID 0270-A1.001.006 

Author Name: Todd Andrew 

Organization: Colorado Water Quality Control Commission 

In the proposed rule, EPA outlines the minimum elements of antidegradation implementation methods. In doing so EPA 

includes a requirement for "all cost-effective and reasonable best management practices for nonpoint source controls." 

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EPA also includes a requirement for identification of "cost-effective and reasonable BMPs" for a waterbody variance. 

The Commission believes this creates confusion about Whether there is a federal requirement to implement nonpoint 

source control BMPs. To clarify, EPA should include a reference to EPA's Water Quality Standards Handbook section 

4.5, in which EPA stated that implementation of nonpoint source controls is only required if the state has adopted 

enforceable nonpoint source control requirements. 

Response 

For response to this comment, see the following response essay(s): 

7.g.ii 

7.g.ii: Section C 

7.l 

8.g.v 

Comment ID 0280-A2.001.010 

Author Name: Aspatore Amanda 

Organization: National Mining Association 

Likewise, EPA should not require states to submit minimum elements of antidegradation implementation methods as 

proposed in the draft rule. Again, primacy states under the CWA are given the authority to implement their water quality 

standards. The only constraint placed on the states is that they may not act in a manner inconsistent with the Act. While 

EPA has a role in ensuring that state water quality standards meet the requirements of the Act and are being 

implemented, new regulatory requirements are not the appropriate approach to ensuring implementation of state 

antidegradation programs. Additionally, the proposed requirement in Sec. 131.12(a)(2) that state implementation 

methods "ensure" that a state conduct an antidegradation review for water bodies that exceed the quality needed to 

achieve any one of the uses specified in CWA Sec. 101(a)(2), is problematic in that it could require states to conduct 

antidegradation reviews for impaired waters, which would be inconsistent with state antidegradation policies. 

Response 

For response to this comment, see the following response essay(s): 

7.g.ii 

7.g.ii: Section A 

7.g.ii: Section B 

7.g.ii: Section E 

Comment ID 0283-A1.001.015 

Author Name: Thorme Melissa 

08/04/2015 05:01 PM EDT 2-853 
Chapter 2 - Comment Documents Antidegradation 

Organization: Downey Brand Attorneys LLP on behalf of several clients 

4. Minimum Elements of Antidegradation Implementation Methods 

The only requirement should be that a State has an antidegradation policy. U.S. EPA should not mandate the minimum 

elements that must be contained therein. In California, the State's Antidegradation Policy was adopted in 1968 and predates the 1972 Clean Water Act. U.S. EPA should not be allowed to mandate that California adopt a new policy or 

regulations to incorporate new minimum elements without a demonstration that the State's current policy is causing 

water quality problems as currently written and implemented, or is contrary to current federal law or regulations, which it 

is not. Instead of focusing on new regulations related to micromanaging the antidegradation analysis process, U.S. EPA 

should work on moving the focus from individual discharges that might cause minimal localized degradation to a 

broader watershed-wide focus aimed at controlling all sources to a reasonable level in a manner that allows all of the 

applicable water quality standards to be met. 

Response 

For response to this comment, see the following response essay(s): 

7.g.ii 

7.g.ii: Section B 

7.G.III - ANTIDEG ME - SUGG REVISIONS 

Comment ID 0176-A2.001.011 

Author Name: Lazarus Jay 

Organization: Glorieta Geoscience, Inc. on behalf of Dairy Producers of New Mexico (DPNM) 

No revisions should be made to section 131.6(d) and consequently alternatives analyses are not necessary. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section D 

7.e.ii 

Comment ID 0189-A1.001.018 

Author Name: Margaret Watkins Nancy Schuldt 

08/04/2015 05:01 PM EDT 2-854 
Chapter 2 - Comment Documents Antidegradation 

Organization: Fond du Lac Band of Lake Superior Chippewa Environmental Program and Grand Portage Band of Chippewa 

Environmental Department 

Minimum elements of an antidegradation implementation method 

For Tier II reviews, EPA should include specific language to address the socioeconomic review, and assurances that 

requirements for all new and existing point sources and cost-effective and reasonable best management practices have 

been addressed. Tribes across the nation have experienced degradation and loss of critical water resources through 

decades of weak antidegradation implementation by states, and socioeconomic analyses rarely consider the 

disproportionate impact to tribal communities when the studies simply focus on job creation. Implementation procedures 

should also specifically address protection of existing uses and identification and protection of Tier III waters. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section I 

Comment ID 0195-A1.001.019 

Author Name: Norton Ken 

Organization: National Tribal Water Council 

Minimum elements of an antidegradation implementation method 

For Tier II reviews, The NTWC believes EPA should include specific language to address the socioeconomic review, 

and assurances that requirements for all new and existing point sources and cost-effective and reasonable best 

management practices have been addressed. Tribes across the nation have experienced degradation and loss of 

critical water resources through decades of weak antidegradation implementation by states, and socioeconomic 

analyses rarely consider the disproportionate impact to tribal communities when the studies simply focus on job 

creation. Implementation procedures should also specifically address protection of existing uses and identification and 

protection of Tier III waters. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section I 

Comment ID 0201-A1.001.017 

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Author Name: Godfrey Mike 

Organization: Alabama Power 

Should EPA elect to specify required minimum elements of States' antidegradation policies in spite of the many 

concerns Alabama Power has set out in these comments, the agency must carve out certain exceptions when 

antidegradation review is not required despite some increase in pollutant loading so that States can implement their 

water quality programs in an efficient and effective manner. For instance, States should be authorized to establish a de 

minimis standard that permits an increase in pollutant loading to occur that will indisputably not impact water quality 

without requiring an antidegradation review. A similar exception should be established for certain kinds of projects the 

social and/or economic benefit of which are so evident that any antidegradation review would not inhibit them. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section C 

7.g.iii: Section F 

7.i 

Comment ID 0201-A1.001.025 

Author Name: Godfrey Mike 

Organization: Alabama Power 

Furthermore, if EPA believes additional implementation methods are necessary to comply with the CWA, the agency 

should articulate proposed rules instead of concealing its agenda through the supposed mere "facilitation" of minimallyrequired implementation methods. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section G 

7.g.ii 

Comment ID 0204-A1.001.005 

Author Name: Thomas John 

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Chapter 2 - Comment Documents Antidegradation 

Organization: Law office of John R. Thomas on behalf of Chassahowitzka River Restoration Committee, et al. 

The EPA Proposal-Part 4: Minimum Elements of an Antidegradation Implementation Method 

The Interest Groups submit there are a number of elements which must be included in a State's implementation 

methods. In addition to the requirements mentioned above, section 131.12(b) must require the antidegradation 

implementation methods adopted by rule by States and Tribes require the establishment of the baseline antidegradation 

assimilative capacity of Tier 2 and Tier 2.5 waters. See, Kentucky Waterway Alliance, 540 F.3d 466, at 484-85 (6th Cir. 

2008); Tier 2 Antidegradation Review and Significance Thresholds, dated August 10, 2005, from Ephraim S. King, 

Director of EPA Office of Science and Technology, to Water Management Division Directors, Regions 1-10 (King 

Memorandum). Florida has not identified methods to implement the Tier 2 baseline assimilative capacity or the Tier 2.5 

OFW existing ambient water quality in Section 303(d) and 40 C.F.R. §130.7(b) impaired water assessments and 

evaluations. 

Section 131.12(b) must require the antidegradation implementation methods adopted by rule by States and Tribes 

establish a limit on the cumulative degradation of the baseline assimilative capacity of Tier 2 and Tier 2.5 waters that 

could be allowed in order to avoid case by case antidegradation implementation review which does not accurately 

consider the cumulative impact of antidegradation implementation decisions. Ibid. 

Section 131.12(b) must require the antidegradation implementation methods adopted by rule by States and Tribes 

establish an antidegradation impaired waters review methodology consistent with CWA Section 303(d) and 40 C.F.R. 

130.7. See, 33 U.S.C. §1313(d)(4)( B) (TMDL WLAs must be consistent with CWA antidegradation policy); Fla. Public 

Interest Research Group Citizen Lobby, Inc. v. EPA, 386 F.3d 1070, 1078 (11th Cri. 2004) (EPA has a mandatory, nondiscretionary duty to "make a threshold determination whether Florida's IWR complied with the requirements of the 

Clean Water Act, including its antidegradation policy."). 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section A 

7.g.iii: Section B 

7.g.iii: Section E 

7.g.iii: Section I 

7.f.i 

Comment ID 0216-A2.001.006 

Author Name: Brisson Brook 

Organization: Trustees for Alaska on behalf of the Alaska Center for the Environment et al. 

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The EPA Proposal Part 4: Minimum Elements of an Antidegradation Implementation Method 

EPA seeks to provide a list of elements that must be included in a state's implementation methods. Many of these 

elements address when and how antidegradation is applied, and thus, implementation methods with these elements are 

a water quality standard. See infra pp. 6 and note 6. 

Additionally, while the Proposed Rule discusses five issues (and four sub-issues) that implementation methods must 

address, see Proposed Rule, 78 Fed. Reg. 54,530, the actual regulatory language proposed only includes clear 

instruction on two issues, see Supplemental Information at 6-7. If EPA wants to make clear what is required in 

implementation methods, those requirements should be included in its regulations. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section H 

7.g.iii: Section I 

Comment ID 0230-A1.001.019 

Author Name: Ettinger Albert 

Organization: One of the counsel for the Environmental Law and Policy Center et al. 

Minimum elements of an antidegradation implementation method (78 FR at 545301) 

EPA has a discussion of "Minimum Elements of an Antidegradation Implementation Method" in its public notice. EPA 

proposes that minimum elements are that the states have "implementation methods" that at least resolve the 

identification of high quality waters issue and require consideration of alternatives. However, rules that cover those 

topics are not mere implementation "methods." They are in fact part of the standard as they clearly affect when, where 

and how the state's waters may be permitted to be degraded. This can be seen applying the tests set forth by EPA in its 

guidance What is a New or Revised Water Quality Standard , water.epa/scitech/swguidance/standards/cwa303faq.cfm. 

In states that apply the "waterbody" approach, a finding that a water body is not a "high water quality" is the logical and 

practical equivalent of saying that Tier 2 protections do not apply, there are no Tier 2 requirements as to the water body 

and there are no Tier 2 instream protections against degradation. Similarly, a state rule that purported to short circuit 

consideration of alternatives would be the logical and practical equivalent of stating that a key provision of the federal 

antidegradation policy would not be applicable in the state. 

Accordingly, the beginning of proposed 131.12 (b) should not treat questions of Tier 2 coverage and alternatives as 

"implementation methods" that are somehow distinct from standards. They are a critical part of the policy. Probably the 

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easiest thing as a matter of drafting is to provide simply in the introduction in new (b): 

(b) The State shall ensure that: 

(1) [proper language as to parameterbyparameter] 

(2) [proper language as to alternatives] 

Etc. (see below) 

In addition, as discussed in the existing rule and in the preamble, antidegradation implementation does not consist only 

of the alternatives analysis. For Tier 2 reviews, this section needs to be expanded to address also the socioeconomic 

review (i.e., will the activity support important local social or economic development) and assurances that requirements 

for all new and existing point sources and costeffective and reasonable best management practices have been 

addressed. More broadly, implementation procedures should also address protection of existing uses and identification 

and protection of Tier III waters. By only identifying two elements in the proposed rule, EPA provides the false 

impression that only these two elements need be addressed. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section I 

7.f.i 

Comment ID 0234-A2.001.004 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

II. ANTIDEGRADATION 

EPA's WQS Regulation currently requires States to identify the methods that they are using to implement their 

antidegradation policies. 

EPA is proposing minimum elements that must be included in the State's antidegradation implementation procedures. 

EPA also is taking comment on whether a State's implementation procedure must be adopted into the State's water 

quality standards and then submitted to EPA for approval. We have concerns about both of these requirements. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section I 

08/04/2015 05:01 PM EDT 2-859 
Chapter 2 - Comment Documents Antidegradation 

7.g.iii: Section M 

7.f.i 

Comment ID 0234-A2.001.005 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

A. Minimum Antidegradation Implementation Methods 

As to the "minimum elements" of a State antidegradation implementation policy, we have several 'concerns, grounded 

in the basic structure of the Act. Antidegradation is a component of State water quality standards, and States are 

supposed to be able to make their own choices as to how to implement their water quality standards. This is particularly 

so for those States (almost all) that have been delegated authority to issue NPDES permits. The only constraint should 

be that the States may not act in a manner that is inconsistent with the Act. 

Other than provisions in section 118 related to the Great Lakes, the Act mentions antidegradation only once (in section 

303(d)(4)) and provides no specifics as to what elements must be contained in a State's antidegradation procedures. 

Thus, there is no basis for EPA to require States to implement antidegradation in a particular way. We understand 

EPA's interest in ensuring that States actually implement the antidegradation program, but that is a management 

concern that can be addressed without adding new regulatory requirements. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section M 

7.m 

Comment ID 0234-A2.001.011 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

D. Listing of Impaired Waters 

We note that the proposed rule does not address the use of antidegradation for listing impaired waters. Under CWA § 

303(c)(2)(A), a "revised or new water quality standard shall consist of the designated uses of the navigable waters 

involved and the water quality criteria for such waters based upon such uses." EPA cannot expand that definition when 

implementing CWA § 303(d) and should clarify that antidegradation policies are not a basis for including a water body 

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on a list of impaired waters. [FN4] 

[FN4] EPA's 2014 guidance to states regarding their 303(d) lists suggests that outstanding natural resource water could 

be listed as impaired based on antidegradation policies, stating that: "If [ ] data and information indicate that the water is 

not meeting the State's requirement for maintenance and protection of the water quality of the ONRW under the 

antidegradation portion of its water quality standards, in accordance with CWA and EPA regulations, the waters would 

be listed on the State's Section 303(d) list even if pollutant concentrations do not exceed water quality criteria levels." 

See Memorandum dated September 3, 2013 from Denise Keehner to Water Division Directors, entitled "Information 

Concerning 2014 Clean Water Act Sections 303(d), 305(b), and 314 Integrated Reporting and Listing Decisions," 

Available at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/2014-memo.cfm#memo This policy exceeds EPA's 

authority under the Act and would result in an unworkable requirement to develop a TMDL for a water body that is 

already meeting standards, to restore the water to some unspecified and uncertain quality that existed at some 

unknown time in the past. EPA should clarify that States are not required to place waters that meet water quality 

standards on their 303(d) list. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section J 

Comment ID 0251-A2.001.021 

Author Name: Wigal Jennifer 

Organization: Oregon Department of Environmental Quality 

DEQ supports ACWA's comments regarding the need for clarity on the scope of antidegradation implementation 

methods. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section K 

7.g.iii: Section L 

Comment ID 0261-A2.001.005 

Author Name: Bartlett Drew 

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Organization: Florida Department of Environmental Protection 

EPA should also explicitly state in its regulations the limited circumstances that antidegradation is considered in its 

303(c) reviews. For example, EPA does not consider a State's antidegradation policy and implementation provisions 

when reviewing new or revised designated uses or water quality criteria. See, e.g., 78 Fed. Reg. 54518, 54526 (Sept. 4, 

2013), citing, Native Village of Point Hope v. U.S. Envtl. Prot. Agency, No. 3:11-cv-00200-TMB, slip op. at 24-25 (D. 

Alaska Sept. 14, 2012); Support Document for EPA's Action Reviewing New Or Revised Water Quality Standards for 

the State of Oregon dated March 2, 2004, p. 31. Likewise, when performing a 303(c) review on new or revised 

designated uses or water quality criteria, EPA does not re-review a State's antidegradation policy and implementation 

methods once EPA approved those antidegradation provisions. In adding the new paragraph 131.5(a)(3), EPA should 

explicitly state these recognized limitations to avoid confusion and unnecessary future litigation. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section K 

7.g.iii: Section L 

Comment ID 0264-A2.001.013 

Author Name: Chard-McClary Shellie 

Organization: Association of Clean Water Administrators 

2) The scope of implementation methods should be defined 

EPA needs to clarify in the rules the scope of implementation methods that are envisioned. ACWA assumes, given the 

text of the proposed rule, that EPA is targeting the application of antidegradation policies during permit reviews. Since 

EPA has no guidance or concepts on how antidegradation policies are applied outside of permitting, neither EPA, the 

public, nor States will have understanding on how to review, approve, develop, or comment upon other implementation 

methods. Until such time as programmatic understanding is developed for programs outside of permitting, EPA should 

clarify the scope of implementation methods. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section L 

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Comment ID 0266-A2.001.005 

Author Name: Reese Thomas 

Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 

5. WQSs must establish an antidegradation impaired waters review methodology and public participation process 

The FWF and the Davises request EPA amend Section 131.12(b) to require states and tribes adopt antidegradation 

implementation methods adopted by rule that establish an antidegradation impaired waters review methodology 

consistent with CWA Section 303(d) and 40 C.F.R. 130.7. See, 33 U.S.C. §1313(d)(4)( B) (TMDL and WLAs must be 

consistent with CWA antidegradation policy); Fla. Public Interest Research Group Citizen Lobby, Inc. v. EPA, 386 F.3d 

1070, 1078 (11th Cri. 2004) (EPA has a mandatory, non-discretionary duty to "make a threshold determination whether 

Florida's IWR complied with the requirements of the Clean Water Act, including its antidegradation policy") . 

EPA must clarify that states and tribes are required to consider whether degradation of the assimilative capacity is 

expected to lead to the Section 303(d) listing of the waterbody as an impaired or potentially impaired water body limited 

segment (WBLS), and water-quality based effluent limitations (WQBELs) must be based upon TMDLs and WLAs 

subject to antidegradation review and the antidegradation policy of the CWA. 

To date, none of the 50 states nor the EPA has performed the required CWA Section 303(d) assessment of all available 

existing water quality data and information for proposes of assessing attainment of antidegradation WQSs. Protection of 

Tier 1 existing uses, and Tier 2 and Tier 2.5 assimilative capacity, must be specifically required in state and tribal 

antidegradation implementation criteria in order to be consistent with the CWA 303(d) assessment criteria. See, 40 

C.F.R. 130.7; Fla. Public Interest Research Group Citizen Lobby, Inc. v. EPA, 386 F.3d 1070, 1078 (11th Cri. 2004). 

EPA must require states and tribes include as a part of their evaluation of water quality conditions conducted under 

Section 303(d) and 40 CFR 130.7 a statement whether the applicable antidegradation standards have been 

implemented, whether compliance with such antidegradation standards has been attained, and whether additional 

water quality controls are necessary to comply with such antidegradation WQSs. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section E 

7.g.iii: Section I 

7.g.iii: Section J 

7.g.iii: Section N 

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Comment ID 0266-A2.001.011 

Author Name: Reese Thomas 

Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 

DISCUSSION 

State and tribe WQSs must contain antidegradation WQSs which are designed to protect and maintain existing uses 

and limitations on degradation of high quality waters whose quality exceeds that necessary to support designated 

beneficial uses. See, 33 U.S.C. §1251(a)(2); 33 U.S.C. §1303(a)-( c). 

State adopted WQSs must include an antidegradation policy, which is "a policy requiring that state standards be 

sufficient to maintain existing beneficial uses of navigable waters, preventing their further degradation." PUD No. 1of 

Jefferson County, 511 U.S. at 705. See also, Kentucky Water Alliance v. Johnson, 540 F.3d 466, 471 (6th Cir. 2008); 

ManaSota-88, Inc. v. Tidwell, 896 F.2d 1318, 1320 (11th Cir. 1990)(the state antidegradation policy must be "consistent 

with and at least as stringent as the federal anti-degradation rule. 40 C.F.R. 131.12."); EPA Water Quality Handbook, 

Chapter 4, Antidegradation, §4.4.2, Aquatic Life/Wildlife Uses. 

Antidegradation regulations are an integral part of the CWA, and provide important protections that are critical to the 

fulfillment of the CWA's objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's 

waters." See, King Memo. 

Antidegradation WQSs provides "a greater opportunity to protect human health and wildlife values, achieve healthy 

watersheds, and fulfill in a more cost-effective manner the CWA's primary objective to restore and maintain the nation's 

waters." See, Keehner Memo. 

Antidegradation policy must be part of state WQSs which serve as the regulatory basis for water quality-based 

treatment controls and strategies beyond the technology-based level of treatment required by CWA sections 301(b) and 

306. Id. 

The first federal antidegradation policy was made on February 8, 1968, by the Secretary of the U.S. Department of 

Interior. Antidegradation was included in EPA's first WQSs Regulation on November 28, 1975 (40 Fed.Reg. 55340-41), 

and was slightly refined and re-promulgated by EPA on November 8, 1983. (48 Fed.Reg. 51400). 

Antidegradation criteria was further incorporated in CWA Section 303(d)(4)(B) through the 1987 amendments to the 

CWA, and the 1990 Great Lakes Critical Program Act in CWA Section 118( c)(2) requiring the Great Lakes water quality 

guidance include antidegradation policies and implementation procedures. See, Pud No. 1 of Jefferson County, Supra 

at 705. Specifically, CWA §303(d)(4)(B) allows the revision of certain effluent limitations or state WQSs "only if such 

revision is subject to and consistent with the antidegradation policy established under [the CWA]." 

EPA's antidegradation policy and methods of implementation are the minimum requirements which states must include 

in state WQSs. See, EPA Water Quality Handbook, Chapter: Antidegradation). EPA's current regulations at 40 CFR 

§131.12 require each state to "develop and adopt a statewide antidegradation policy and identify the methods for 

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implementing such policy." (e.s.). 

Florida and other states have not identified methods to implement the Tier 2 baseline assimilative capacity or the Tier 

2.5 OFW existing ambient water quality in Section 303(d) and 40 CFR §130.7(b) impaired water assessments and 

evaluations. 

Florida and all other 49 states have also not adopted or used antidegradation methodology for assessment and listing 

of impaired waters under Section 303(d). EPA has repeatedly arbitrarily and capaciously approved these inadequate 

state and tribal Section 303(d) assessments, evaluations and lists of WQLSs without assessment and evaluation 

whether antidegradation WQSs were being attained or were likely not to be attained. See, Florida Wildlife Federation, 

Alfred J. Davis and Cindy Davis v. McCarthy, Case No. 8:13-cv-2084-SDM-EAJ (M.D. Fla. 2013). 

A statewide antidegradation policy must be consistent with 40 CFR §131.12, and contain at least three levels of 

antidegradation water quality protection: Tier 1, Tier 2, and Tier 3. See, EPA Water Quality Handbook, Chapter 4: 

Antidegradation. 

Because the CWA antidegradation policy regulates and protects against overall waterbody ambient aquatic resource 

degradation, not merely individual sources of degradation, antidegradation WQSs are not based upon the number of 

discharges nor whether the discharge is point source or non-point sources. Rather, antidegradation WQSs are based 

upon whether the ambient water quality of waterbodies are degraded (lowered) by any and all of the pollutant loads into 

the waterbodies, whether the pollution load is point source or non-point source, and regardless whether the pollution 

sources is permitted or not permitted. No waterbodies are excepted from antidegradation policy and review for 

compliance with antidegradation policy. See, 40 CFR §130.12; 40 CFR §130.7(b)(3); Kentucky Waterway Alliance, 540 

F.3d 466, at 484-85 (6th Cir. 2008). 

The CWA requires state antidegradation review be applied not only during the permit issuance process, but also during 

the mandatory CWA Section 303(d) impaired waters assessment and listing of WQLSs by states and the EPA. See, 40 

CFR §130.12; 40 CFR §130.7(b)(3); Kentucky Waterway Alliance, 540 F.3d 466, at 484-85 (6th Cir. 2008). 

Antidegradation implementation methodology not only must be applied in permit issuance and regulatory activity review, 

states and tribes must adopt antidegradation implementation methodology for Section 303(d) assessments and 

evaluations of whether waterbodies are attaining antidegradation WQSs. 

The central purpose of the antidegradation regulations is to protect the assimilative capacity of water bodies. See, King 

Memo. In short, a water body's assimilative capacity is a measurement of the amount by which its aquatic resource 

quality exceed levels necessary to support the designated use of the waterbody. Ibid. The degree of the assimilative 

capacity of a water body is the baseline for Tier 2 antidegradation review of cumulative degradation. The 

antidegradation regulation review process ensures that the baseline assimilative capacity of waters is maintained and 

protected so as to avoid further degradation. Kentucky Waterway Alliance, 540 F.3d 466, at 484-85 (6th Cir. 2008). 

The CWA requires Tier 1 antidegradation protection be applied by states to all surface waters, and that the state Tier 1 

protection require that "[e]xisting instream water uses and the level of water quality necessary to protect the existing 

uses shall be maintained and protected." 40 CFR § 131.12(a)(1). Existing uses include shellfish harvesting and 

collection, recreational uses in and on waters, wildlife uses, aquatic life uses, and wildlife uses, which existed on and 

after November 28, 1975, regardless of whether these existing uses are adopted as designated uses by the state. See, 

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EPA Water Quality Handbook, Chapter 4: Antidegradation. 

The CWA requires Tier 2 antidegradation protection standards be applicable to all high quality waters, which are 

waterways where "the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife 

and recreation in and on the water." See, 40 CFR § 131.12(a)(2). Thus, all surface waters must be subject to Tier 2 

antidegradation review to determine if high quality waters exists, and high water quality waters do exist, the assimilative 

capacity must be maintained and protected . See, Kentucky Waterway Alliance, 540 F.3d 466, at 484-85 (6th Cir. 

2008). 

Tier 2 assimilative capacity "shall be maintained and protected unless the State finds, after full satisfaction of the 

intergovernmental coordination and public participation provisions of the state's continuing planning process, that 

allowing lower water quality is necessary to accommodate important economic and social development in the area in 

which the waters are located." See, 40 CFR § 131.12(a)(2). 

Establishment of antidegradation assimilative capacity baseline is necessary to review and prevent repeated or multiple 

changes in water quality to result in significant cumulative water quality degradation by permitted and exempt activities. 

Id. The assimilative baseline should remain fixed unless action improves the assimilative water quality capacity, at 

which time the baseline should be adjusted accordingly. Id. 

Establishing this baseline assimilative capacity is fundamental and mandatory for states performing the required CWA 

Section 303(d) assessment and evaluation of whether surface waters are achieving attainment with state adopted 

antidegradation WQSs. In order for a state to perform such CWA antidegradation implementation, the state must first 

establish the baseline assimilative capacity of Tier 2 waters. 

EPA's regulation at 40 CFR §131.12(a)(2) requires the Tier 2 review process adopted by states "assure that there shall 

be achieved the highest statutory and regulatory requirements for all new and existing point sources and all costeffective and reasonable best management practices for non-point source control" in Tier 2 waterbodies. See, 40 CFR § 

131.12(a)(2)). The CWA and the text of 40 CFR 131.12(a)(2) do not provide any exception to Tier 2 antidegradation 

review. 

EPA's antidegradation guidance provides that degradation is not necessary to accommodate important economic or 

social development if it could be partially or completely prevented through implementation of state controls of non-point 

sources of pollution. See, EPA Guidance, February 22, 1994, Interpretation of Federal Antidegradation Regulatory 

Requirement. States must be required to prove that degradation of assimilative capacity could not be partially or 

completely prevented through implementation of water pollution controls within the state's statutory and regulatory 

authority. Thus, EPA must clarify 40 CFR Section 131.12 by requiring state WQSs list the state pollution controls that 

must be considered, such as the following. 

a. Implement new source performance standards on all new and existing point source discharges in the watershed of 

the waterbody. 

b. Require more stringent effluent limitations, including lowering effluent limitation levels of all point sources discharges 

in the watershed of the waterbody to actual current loadings of the discharge(s). 

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c. Order the point or method of discharges changed. 

d. Limit the duration or volume of discharges. 

e. Require all new and existing stormwater management systems discharging within the watershed of the water body 

achieve at least 95% reduction of the average annual load of pollutant(s) at issue required by Fla.Admin.Code R. 62-

25.025(9). 

f. Regulate the water quality affects of water quantity uses which degrade the baseline assimilative capacity for the 

subject assimilative capacity water quality parameter. 

g. Require NPDES MS4 permits for all stormwater discharges that are a significant contributor within the watershed of 

the pollutant at issue in the waterbody. 

h. Implement stricter effluent limitations on point source stormwater discharges in the watershed of the waterbody, 

including requiring clear, specific and measurable performance standards in NPDES MS4 permits that are enforceable 

and prohibit violation of WQSs. 

I. Implement stormwater control measures within the watershed of the subject waterbody require redeveloped sites to 

retrofit existing stormwater systems. 

j. Implement stormwater control measures in MS4 permits which require the identification of stormwater pollution 

hotspots within the watershed of the subject water body, and the use pollution prevention actions in the identified 

hotspots. 

k. Require local governments in the watershed of the waterbody with stormwater management systems to exercise land 

use control measures to reduce the pollutant load at issue, including runoff volume reduction, peak flow reduction, and 

increasing runoff treatment levels. 

l. Regulation and control activities which have adverse cumulative and secondary impacts on surface water quality, 

including requiring triennial septic tank inspection and necessary retrofitting within the watershed and springshed of the 

waterbody. 

m. Cost effective and reasonable tightening up of best management practices on non-point sources within the 

watershed of the waterbody for the pollutant at issue. 

CWA Section 303(d)(4)(B) mandates that any revision to effluent limitation standards for Tier 2 waters established by 

TMDL WLAs be "consistent with the antidegradation policy established under this section." This means it is mandatory 

that Section 303(d) impaired waters assessments and lists of WQLSs by both the states and the EPA evaluate whether 

the ambient water quality of state waters are attaining state antidegradation WQSs. 

Currently states and tribes have a wide variety of ways of providing antidegradation WQSs implementation. EPA has 

previously found that states and tribes are not appropriately implementing the state and tribe antidegradation WQSs. 

State and tribe antidegradation implementation criteria which has not been adopted as part of state and tribe WQSs has 

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substantially amended, modified, and at times eliminated, the antidegradation criteria which states and tribes have 

adopted as WQSs. Examples of this include state and tribe permitting implementation criteria exempting activities from 

antidegradation review. At no time in the last 41 years has any state or tribe ever performed the required CWA Section 

303(d) assessment and evaluation of the attainment of antidegradation WQSs, nor has any state or tribe ever listed a 

water body as impaired due to failure, or foreseeable failure, to attain antidegradation WQSs. This has resulted in no 

TMDL and WLA developed by states, tribes and the EPA ever being consistent with the antidegradation policy of the 

CWA as mandated by CWA Section 303(d)(4)(B), (33 U.S.C. §1313(d)(4)(B)). 

Section 303(d) water quality assessments and evaluations by states and tribes to date have focused on whether 

numeric and narrative WQSs are being attained, not whether antidegradation WQSs are being attained. EPA must 

correct this deficiency. The CWA antidegradation policy provides "a greater opportunity to protect human health and 

wildlife values, achieve healthy watersheds, and fulfill in a more cost-effective manner the CWA's primary objective to 

restore and maintain the nation's waters." (Keehner Memo). 

As EPA's background statement in the September 4 proposed rule clarifications states, EPA's 1998 ANPRM indicated 

that the CWA antidegradation policy "is not being used as effectively as it could be," a concern that continues today as 

evidenced by the continuing significant increasing number of identified impaired waters based upon WQSs to attain the 

designated use, not the antidegradation high quality assimilative capacity which antidegradation WQSs and 

implementation criteria are intended to protect. See, pg. Fed. Reg. 54526. 

A classic example EPA's current antidegradation regulatory provisions having not been effective or successfully 

implementing the CWA antidegradation policy is Florida's current antidegradation WQSs and implementation policy. 

Florida's antidegradation WQSs and implementation criteria are spread out in three different chapters of Florida 

regulations, some located in Florida WQSs chapter (Fla.Admin.Code Chapter 62-302), some in Florida's permitting 

chapter (Fla.Admin.Code R. 62-4.242), and Florida impaired waters rule (IWR) located in Fla.Admin.Code Chapter 62-

303 without any antidegradation assessment methodology for CWA Section 303(d) impaired waters assessments. 

Florida's antidegradation WQSs and implementation criteria uses the word "policy" rather than "criteria" in 

Fla.Admin.Code 62-302.700(7) , and references "permitting process." Florida Division of Administrative Hearing 

(DOAH) Administrative Law Judge (ALJ) Bram D.E. Canter, a former Florida Department of Environmental Regulation 

water attorney who handled Florida OFW cases [FN3] has opined that the way Florida has written its antidegradation 

WQSs and implementation criteria it is unclear to him whether the OFW "policy" is to be "treated like other water quality 

criteria so if OFW baseline is degraded, the OFW becomes an "impaired water" for purposes of section 303(d) of the 

Clean Water Act and [Section 403.067, Fla. Stat.].Florida Wildlife Federation v. Department of Environmental 

Protection, DOAH Case No. 11-6137, paragraphs 160-161, pg. 54) (DOAH 2011). [FN4] 

EPA has long recognized the need to cluster Florida's antidegradation WQSs in Florida's WQSs in Fla.Admin.Code 

Chapter 62-302. EPA's September 24, 1987 Triennial review letter to Florida stated it is important that Florida's 

antidegradation WQSs to be contained entirely in the WQS regulations of Florida to ensure application of the 

antidegradation WQSs "to all waters of the States, regardless of the activity or source of impact affecting water quality 

of surface waters." (A copy is attached). Despite this September 24, 1987 EPA letter which determinated that clustering 

of Florida's antidegradation WQSs in Florida's WQSs Chapter 62-302 was necessary to met the requirements of the 

CWA, such clustering has not yet occurred. 

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On July 10, 2012, the FWF petitioned EPA to initiate rulemaking to promulgate the necessary revisions to the current 

State of Florida's antidegradation WQSs to met the requirements of the CWA. (A copy is attached hereto). This petition 

sets forth the deficiencies of Florida's current antidegradation WQSs and implementation methods, and is an example 

why EPA must adopt the WQS clarification amendments set forth in this comment letter. 

EPA must clarify its water quality rules by requiring states and tribes to correct these failures to be consistent with the 

CWA. 

[FN3] The Department of Environmental Regulation (DER) is now the Department of Environmental Protection. ALJ 

Canter represented DER in Brewster Phosphates v. DER, 444 So.2d 483 (Fla. 1st DCA 1984), cert den., 450 So.2d 485 

(Fla. 1984), in which he successfully defended the designation of the Little Manatee River in south Tampa Bay as an 

OFW. The First District Court of Appeal held that DER's OFW rule was constitutional and DER's designation of the Little 

Manatee River as an OFW was valid because the attributes of the Little Manatee River. 

[FN4] This DOAH order is available at doah.state.fl.us until Case No. 11-6137. 

Response 

For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section B 

7.g.iii: Section C 

7.g.iii: Section E 

7.g.iii: Section F 

7.g.iii: Section I 

7.g.iii: Section J 

7.f.i 

Comment ID 0266-A2.001.014 

Author Name: Reese Thomas 

Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 

5. The FWF and the Davises request EPA amend 40 C.F.R Section 131.12(b) to require states and tribes to adopt 

WQSs that establish an antidegradation impaired waters review methodology. See, 33 U.S.C. §1313(d)(4)( B) (TMDL 

WLAs must be consistent with CWA antidegradation policy); Fla. Public Interest Research Group Citizen Lobby, Inc. v. 

EPA, 386 F.3d 1070, 1078 (11th Cri. 2004) (EPA has a mandatory, non-discretionary duty to "make a threshold 

determination whether Florida's IWR complied with the requirements of the Clean Water Act, including its 

antidegradation policy.") . 

Response 

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For response to this comment, see the following response essay(s): 

7.g.iii 

7.g.iii: Section I 

7.g.iii: Section J 

7.G.IV - ANTIDEG ME - STATE AIMS 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

7.H - ANTIDEG - EPA AIMS 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

7.I - ANTIDEG - DE MINIMIS 

Comment ID 0129-A2.001.011 

Author Name: Steidel Robert 

Organization: AquaLaw PLC on behalf of Virginia Association of Municipal Wastewater Agencies, Inc. 

Finally as to Tier designations, we are aware of concerns expressed by others about de minimis exceptions to Tier 2 

review that many (if not all) of the states have established to tailor their decisions and focus on real and legitimate water 

quality concerns. Such exceptions are entirely appropriate and within the states' exclusive authority under CWA section 

303. These exceptions have proven to be highly effective in allowing the states to focus their resources properly, and to 

avoid permit requirements that are of no practical positive effect. In the context of Publicly Owned Treatment Works, for 

example, small changes in instream dissolved oxygen concentrations or in naturally occurring metals concentrations 

represent variations in water quality data, but not true decreases in water quality. 

Accordingly we urge EPA to not consider any new restriction on such de minimis antidegradation provisions. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0131-A1.001.014 

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Author Name: Rager David 

Organization: Sanitation District Number 1 of Northern Kentucky 

Comment 6 - The § 131.12 should be amended to include provisions for "de minimis" discharges. We note that the 

proposed rule does not describe how states can and should include "de minimis" provisions that would allow activities 

resulting in insignificant water quality degradation to be excluded from Tier 2 antidegradation reviews. The concept of 

allowing de minimis exemptions has been supported by EPA [FN2] and the courts (Kentucky Waterways Alliance, et al. 

v. Johnson, Case No. 06-5614). This tool should be available to states to minimize unnecessary regulatory burden 

associated with conducting antidegradation reviews for insignificant discharges. 

[FN2] Ephraim S. King to Water Management Division Directors, Regions 1-10, August 10, 2005, "Tier 2 

Antidegradation Reviews and Significant Thresholds." 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0134-A1.001.015 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

• De minimis increases - If EPA proceeds with regulatory requirements for antidegradation policies, it should codify the 

policy of allowing de minimis levels of increased loading without an antidegradation review. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0145-A2.001.015 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

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• De minimis increases - If EPA proceeds with regulatory requirements for antidegradation policies, it should codify the 

policy of allowing de minimis levels of increased loading without an antidegradation review. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0150-A1.001.009 

Author Name: Heisig-Mitchell Jamie 

Organization: Hampton Roads Sanitation District 

HRSD is aware of concerns expressed by others about de minimis exceptions to Tier 2 review that many (if not all) of 

the states have established to tailor their decisions and focus on real and legitimate water quality concerns. Such 

exceptions are entirely appropriate and within the states' exclusive authority under CWA section 303. These exceptions 

have proven to be highly effective in allowing the states to focus their resources properly, and to avoid permit 

requirements that are of no practical positive effect. In the context of Publicly Owned Treatment Works (POTWs), for 

example, small changes in instream dissolved oxygen concentrations or in naturally occurring metals concentrations 

represent variations in water quality data, but not true decreases in water quality. 

HRSD urges EPA to not consider any new restriction on such de minimis antidegradation provisions. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0156-A1.001.012 

Author Name: Jackie Kepke Adam Link 

Organization: California Association of Sanitation Agencies and Tri-TAC 

Third, the antidegradation implementation plan should include language requiring States and tribes to assess and apply 

negligible or de minimis levels to exempt insignificant new or increased discharges from antidegradation review. This is 

absent from the proposed modifications, but is particularly crucial given the time-consuming and resource-intensive 

nature of the technical and economic analyses involved in a full antidegradation review. Finally, for the same reasons 

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indicated above, CASA and Tri-TAC oppose the proposal for States to adopt antidegradation implementation methods 

as WQS, either as a mandate or a discretionary approach. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0157-A1.001.011 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

De Minimis Exemptions 

A major concern with respect to the alternative analysis and antidegradation standards that are proposed relates to the 

fact that EPA has not provided for de minimis exemptions from antidegradation review for projects that only consume a 

small insignificant increment of assimilative capacity of a waterbody. The Kentucky Waterways Alliance case makes 

clear that de minimis exceptions are allowable under the existing regulations, even without express authorization. Since 

EPA antidegradation policy has no guiding standards in the CWA, nothing prevents EPA from expressly authorizing 

reasonable project specific and cumulative consumption exceptions to antidegradation review to minimize the impact 

and burden of strict antidegradation reviews on states and industry for projects that will result in insignificant changes to 

water quality. 

Without express de minimis exceptions, an alternative analysis and antidegradation review could force costly changes 

or preclude a project from going forward even where the increase in pollutant concentrations in the receiving water 

changes by a tiny fraction of the remaining assimilative capacity. EPA should include provisions in 40 CFR 131.12 to 

recognize the concept of insignificant degradation as was the policy in 1987 when Congress referenced antidegradation 

policy in Section 303(d)(4) of the Clean Water Act. Requiring states to only tie de minimis exemptions to cumulative 

changes in water quality is unworkable, especially on larger streams and rivers where changes in pollutant loadings 

from all point and nonpoint sources within the watershed are not necessarily within the jurisdiction of the agency. 

Accordingly, if EPA adopts antidegradation methodologies and standards that could effectively preclude any change in 

water quality on the basis that the least degrading "practicable" alternative must be selected by a state, it should 

expressly authorize states to adopt de minimis criteria for individual projects and cumulative consumption to prevent 

unduly harsh determinations that inhibit economic growth. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

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7.i: Section A 

12.a 

Comment ID 0158-A1.001.019 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

Kentucky is also concerned the antidegradation implementation language in §131.12 does not provide for de minimis 

exemptions from antidegradation review for projects that consume only an insignificant increment of the assimilative 

capacity of a waterbody. In Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th Cir., 2008) the Sixth Circuit 

Court of Appeals affirmed the use of de minimis exemptions and EPA and the KDOW made great efforts to ensure the 

appropriate adoption of the de minimis exemption in Kentucky's Antidegradation Policy Implementation Methodology 

regulation (401 KAR 10:030). EPA should consider authorizing in the final rule de minimis exemptions from 

antidegradation review for projects that consume only an insignificant increment of the assimilative capacity of a 

waterbody. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0164-A1.001.005 

Author Name: Allmon Eric 

Organization: Lowerre, Frederick, Perales, Allmon & Rockwell on behalf of Clean Water Action et al. 

Several states, including Texas, have adopted some form of exemption from the Tier 2 review process for activities 

considered to involve an insignificant lowering of water quality. Experience has shown that more strict federal regulatory 

constraints are necessary in order to avoid allowing such exemptions to simply swallow the rule, and wholly negate the 

goals of the anti-degradation policy. 

For example, Texas' WQS only require a regulatory action involving the "degradation" of water quality to undergo a Tier 

2 review, and in turn define "degradation" as a greater-than de minimis lowering of water quality.[FN3] Texas has 

chosen to implement this definition in a manner that renders the alternatives analysis of the Tier 2 review wholly 

inapplicable to any NPDES permit issued by the Texas Commission on Environmental Quality. Since receiving 

delegated authority over the NPDES program in 1998,[FN4] Texas has issued numerous discharge permits lowering 

water quality to a point where the receiving waters barely meet the applicable Tier 1 standard to protect attainable uses. 

At the same time, Texas has concluded that none of its permitting actions resulted in a greater than de minimis lowering 

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of water quality, and thus, to commenters' knowledge, Texas has exempted every permitting action taken from the 

alternatives analysis of a Tier 2 review. 

For example, in the case of an application by the Cities of Bellmead, Hewitt, Lacy Lakeview, Lorena, Robinson, Waco 

and Woodway to permit a discharge of domestic wastewater in a quantity of 1.5 MGD into Bullhide Creek, TCEQ found 

that the discharge would cause a less-than de minimis lowering of water quality, and thus wholly exempted the permit 

from the alternatives analysis of the Tier 2 review.[FN5] In that case, the Applicant itself found that the discharge would 

cause a reduction in dissolved oxygen within the receiving waters under critical concentration of 4.82 mg/L.[FN6] This 

concentration was even less than the applicable 5.0 mg/L Tier 1 standard for the protection of high aquatic life uses in 

the receiving water body.[FN7] But, relying on examples provided in TCEQ's implementation procedures for its WQS, 

during a contested case hearing, the Applicant's expert testified that such a lowering of water quality was not significant 

because he believed the receiving water did not exhibit an exceptional aquatic life use or maintain a sensitive aquatic 

community.[FN8] Such an approach, derived from TCEQ's guidance on the implementation of its anti-degradation 

policies,[FN9] is contrary to EPA's position that all high quality waters warrant the protection of a Tier 2 review. 

As another example, in the case of the application of Far Hills Utility District for TPDES Permit No. 14555-001, TCEQ's 

Executive Director found the lowering of water quality as the result of a proposed discharge of domestic wastewater to 

be de minimis even though the Executive Director's own modeling reflected that the discharge would result in a 

dissolved oxygen concentration within the receiving waters of 4.80 mg/L, a water quality that was again even less than 

the applicable 5.0 mg/L Tier 1 standard for protection of high aquatic life uses.[FN10] Again, TCEQ had conflated its de 

minimis review with its requirements for a Tier 1 review. 

In the more recent case of an application by Lerin Hills for TPDES Permit No. WQ0014712001, TCEQ similarly found 

that a lowering of dissolved oxygen which its own staff had modeled to be from 6.45 mg/L in a receiving water to 5.03 

mg/L constituted a less than de minimis lowering of water quality.[FN11] In the Lerin Hills case, a contested case 

hearing had been held in which the administrative law judge found that the discharge would violate TCEQ's Tier 2 policy 

based on this concern and concerns regarding the growth of aquatic vegetation,[FN12] but the Commission reversed 

these findings and issued the permit anyway.[FN13] Given the unreasonable nature of that decision, and the manner in 

which it conflates the Tier 1 review and the Tier 2 review, that matter is currently subject to litigation on the issue 

pending before the Corpus Christi Court of Appeals.[FN14] These examples reflect the manner in which TCEQ has 

repeatedly and consistently treated a regulatory action as constituting a less-than de minimis lowering of water quality 

so long as the applicable Tier 1 criteria has been met. This approach wholly undermines the intent of the Tier 2 review 

of maintaining water quality in high-quality water bodies. 

Texas' non-implementation of the Tier 2 review process runs counter to direction provided by both EPA guidance and 

the courts. EPA's Water Quality Standards Handbook ("WQS Handbook") indicates that activities such as new 

discharges or expansion of existing facilities would presumably lower water quality and would not be permissible unless 

the State conducts a review demonstrating an economic or social need for the activity. Through guidance issued to 

Regional offices, EPA has made clear that "significance thresholds at a level that can be demonstrated to be consistent 

with the purpose of tier 2 anti-degradation requirements," or else, "a new or increased discharge may result in 

significant degradation that will not be subject to anti-degradation review, and decisions about the lowering of water 

quality in high quality waters may be made without public consideration of necessity and importance, resulting in the 

loss or diminishment of a valuable natural resource."[FN15] Consistent with this administrative guidance, the United 

States Sixth Circuit Court of Appeals has held that the administrative authority to create such an exemption from the 

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directive of the Clean Water Act that water quality be maintained is properly considered a "narrow" one.[FN16] Contrary 

to this regulatory and judicial guidance, TCEQ has applied its de minimis exemption in a manner that creates such a 

high threshold for a lowering of water quality to be considered significant that the threshold has never been met. 

Further, TCEQ's application of its de minimis exemption is contrary to the objectives of the Tier 2 review to create a 

transparent process for public participation. TCEQ's rules do not define the term de minimis. While TCEQ's 

implementation procedures provide examples of rare permitting actions that may involve a greater-than de minimis 

lowering of water quality,[FN17] Texas has never found such a situation to warrant categorizing a regulatory action as 

causing a greater than de minimis change in water quality. In short, little is known of Texas' definition of the term de 

minimis except that it is broad enough to include every permitting action Texas has ever encountered where the 

requirements of a Tier 1 review are met. 

This uncertainty is particularly evident for permitting actions that involve the discharge of nutrients. In the matter of an 

application by Lerin Hills Ltd. for TPDES Permit No. WQ0014712001, TCEQ formally adopted the position that numeric 

data regarding the baseline and post-discharge concentrations of nutrients in a receiving water are categorically 

irrelevant to the Tier 2 review.[FN18] This position was based on a reasoning that Texas' general criteria for nutrients is 

expressed in narrative form, and thus only narrative information could be considered. Rather, TCEQ has taken the 

position that only "qualitative" expert opinions may be considered relevant to a Tier 2 review for nutrients, and that the 

public is not allowed to question whether an expert's opinion bears any relationship to the quantitative amount of 

nutrients proposed to be discharged. This process, by which a lowering of water quality is considered de minimis as 

long as an applicant can produce an "expert" to say so denies the public any opportunity to meaningfully evaluate the 

process by which TCEQ has reached a conclusion that a permitting action will cause a less-than de minimis lowering of 

water quality. The public is thereby denied any meaningful opportunity to participate in TCEQ's treatment of the Tier 2 

anti-degradation requirements. 

TCEQ has adopted a similarly broad interpretation of its de minimis exemption when considering applications to 

authorize industrial wastewater discharges. For example, in and around 2009-2010, TCEQ considered an application by 

Oak Grove Management Company for an amendment to TPDES Permit No. WQ0001986 in order to allow an increase 

in the quantity of once-through cooling water at a lignite-fired power plant from an existing authorization of 1,470 MGD 

to a quantity of 1,610 MGD - an increase of 140 MGD.[FN19] Such an increase had the reasonable potential to 

increase the quantity of bioaccumulative contaminants into the receiving water body.[FN20] The receiving water body 

was a reservoir with little inflow or outflow not associated with the plant, so that there would be little opportunity for 

contaminants to leave this system. Even so, this permitting action was exempted from the Tier 2 alternatives review 

premised on a finding that it would result in a less-than de minimis lowering of water quality. The analysis provided by 

TCEQ's Executive Director in the performance of his technical review simply stated that, "A Tier 2 review has 

preliminarily determined that no significant degradation of water quality is expected [in the receiving reservoir and 

downstream waters]."[FN21] In direct testimony during a contested case hearing, TCEQ staff stated that de minimis for 

purposes of a Tier 2 review meant a less than noticeable decrease in water quality,[FN22] as TCEQ staff often state 

under questioning. But, neither she nor any other TCEQ staff person provided any analysis of how the 140 MGD 

increased discharge being authorized would result in a less-than noticeable lowering of water quality. TCEQ's final 

order in the matter simply stated that, "The impact of the authorized increase discharge of once-through cooling water 

under the revised draft permit is minimal." [FN23] An expert for the Applicant testified during the contested case hearing 

that the discharge would use less than 10% of the assimilative capacity of the receiving waters, but in doing so he 

offered no evaluation of baseline water quality concentrations, resulting water quality concentrations, the assimilative 

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capacity of the receiving waters, or the amount of the assimilative capacity that would be used by the discharge. Even if 

such testimony during a contested case hearing was adequate to demonstrate the water quality impacts of a discharge 

to be de minimis, the TPDES program should be administered in a manner that allows the public to transparently 

consider TCEQ's Tier 2 evaluation during the comment period, and which allows the EPA to consider this analysis 

during its opportunity to comment on a draft permit. In the Oak Grove matter, the only information available during the 

comment period regarding TCEQ's determination that the impacts of the 140 MGD increase would be de minimis were 

conclusory statements to that effect by the Executive Director's staff, with no supporting analysis. 

Consideration of Cumulative Impacts and Determination of Baseline Water Quality 

By guidance, EPA has made clear that the Tier 2 anti-degradation review should address the cumulative impacts of 

regulatory actions impacting a water body, and not solely the impact of the particular action at issue.[FN24] 

Commenters are concerned that this requirement can be easily contravened. For example, while TCEQ's rules provide 

that the highest water quality sustained in a water body since November 28, 1975 defines baseline conditions for 

purposes of degradation, TCEQ staff have repeatedly made clear that insofar as they perform an antidegradation 

analysis, they look to existing conditions and make no effort to investigate whether the receiving water body previously 

sustained a higher water quality. Any provision establishing a minimum standard for the determination of significance 

should be clear that the relevant change is the cumulative lowering of water quality as the result of all past and present 

regulatory actions impacting a water body, and not merely the impact of the particular regulatory action at issue. 

Conclusion and Recommended Modification to Proposed Rules 

These comments focus on problems with the implementation of the Tier 2 anti-degradation policy within the State of 

Texas. Even so, thorny issues regarding the role of a significance threshold in the performance of a Tier 2 review have 

arisen with regard to the administration of the NPDES program in a number of states. In order to ensure the effective 

implementation of the Tier 2 anti-degradation policy, to avoid the need to address the issue on an ad hoc basis in each 

state, and to create transparency in the process, EPA should adopt by rule standards for what regulatory actions may 

be exempted from the alternatives analysis of a Tier 2 review as "insignificant." Representatives of the Environmental 

Community in Texas have previously raised the concerns set forth in this letter with EPA staff and through formal 

comments on EPA's review of TCEQ's water quality standards. In general, EPA has responded to these concerns by 

indicating that such concerns would be addressed by the current rulemaking. Commenters appreciate EPA's efforts to 

clarify its rules regarding WQS, but as discussed herein feel that additional specificity is needed. 

By guidance, and within the context of the Water Quality Guidance for the Great Lakes, EPA has stated that a 

significance threshold of 10% of the available assimilative capacity, coupled with a cumulative cap, represents "a 

reasonable balance between the need of the regulatory agencies to limit the number of actions involving nonbioaccumulative chemicals of concern that are subjected to the detailed anti-degradation demonstration requirements, 

and the need to protect and maintain water quality." [FN25] While this approach may not be perfect, Commenters feel 

that it would constitute a good place to start to incorporate such threshold as the maximum threshold allowable for a 

determination of whether a regulatory action will cause a significant, or greater-than de minimis, change in water quality. 

Without such specificity, Commenters are concerned that Texas and other states may continue to avoid application of 

the Tier 2 alternatives analysis by simply considering all, or virtually all, of its regulatory actions to cause a lowering of 

water quality that does not constitute "degradation." 

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TCEQ's non-implementation of the Tier 2 anti-degradation review already violates EPA's existing rules on this issue. 

Clarifying EPA's rules to establish more certainty in the necessary elements for a "significance" threshold would aid in 

correcting this deficiency in the TPDES program. 

[FN3] 30 TAC § 307.5(b)(2). 

[FN4] 65 Fed. Reg. 51164, Sep. 24, 1998 (Environmental Protection Agency: State Program Requirements; Approval of 

Application to Administer the National Pollutant Discharge Elimination System (NPDES) Program; Texas). 

[FN5] Application for a New Permit by City of Waco, City of Woodway, City of Bellmead, City of Lacy-Lakeview, City of 

Robison, City of Hewitt, and City of Lorena for Wastewater Permit No. WQ0014889-001, Issued January 6, 2010. 

TCEQ had found that Bullhide Creek was a high-quality water body, noting that it had been identified as having high 

aquatic life uses. 

[FN6] Exhibit APP-23 at p. 3 and Exhibit APP-27 at p. 3, in the Matter of the Application of Cities of Bellmead, Lacy 

Lakeview, Robison, Hewitt, and Lorena for Wastewater Permit No. WQ0014889-001, SOAH Docket No. 582-09-1149, 

TCEQ Docket No. 2008-1742-MWD. (Attachments A and B to these comments). 

[FN7] The applicable Tier 1 water quality criteria for the protection of High Aquatic Life Uses in the receiving water body 

was 5.0 mg/L as a 24-hour mean. 30 TAC § 307.4(h)(2), 307.7(b)(3)(A)(i). As a matter of standard modeling practice, 

TCEQ has adopted the position that any modeling result at or above 4.80 mg/L is adequate to show compliance with a 

5.0 mg/L Tier 1 standard. TCEQ has asserted that EPA is aware of this policy and has no objection to it. Testimony of 

Karen Holligan, staff water quality modeler for TCEQ, Transcript of June 26, 2006 Hearing on the Merits in the Matter of 

the Application of Far Hills Utility District for TPDES Permit No. 14555-001, p. 33, line 19 - Page 34, line 19. 

(Attachment C to these comments) 

[FN8] See Pre-Filed Testimony of Dr. James Miertschin, P.E., p. 56-57, Exh. APP-11 in the Matter of the Application of 

the City of Bellmead, et al for TPDES Permit No. WQ0014889-001. 

[FN9] Texas Commission on Environmental Quality, Procedures to Implement the Texas Surface Water Quality 

Standards, RG-194, (2003) p. 34, stating that degradation becomes likely if increased loading of oxygen-demanding 

substances are "projected to decrease dissolved oxygen by more than 0.5 mg/L for a substantial distance in a water 

body that has exceptional quality aquatic life and a relatively unique and potentially sensitive community of aquatic 

organisms." 

[FN10] See Testimony of Karen Holligan, cited above. The Far Hills Application was ultimately denied by the 

Commission based on the applicant's proposal to locate wastewater treatment units within a wetland in violation of 

TCEQ rules, so as a technical matter the Commissioners of the TCEQ were not called upon to directly address the antidegradation issue. 

[FN11] See March 4, 2009 Proposal For Decision in The Matter of the Application of Lerin Hills, Ltd. for TPDES Permit 

No. WQ0014712001, SOAH Docket No. 582-08-0690, TCEQ Docket No. 2007-1178-MWD. The Lerin Hills matter is 

currently the subject of litigation pending before the Corpus Christi Court of Appeals, Rick Wood v. Texas Commission 

on Environmental Quality and Lerin Hills Municipal Utility District, Docket No. 13-13-00189-CV. TCEQ's application of 

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the de minimis exemption to the Tier 2 review is a live issue in that judicial appeal due to its unreasonable interpretation 

of the term in that case. 

[FN12] Id. 

[FN13] Tex. Comm'n on Environmental Quality, Application of Lerin Hills, Ltd. for TPDES Permit No. WQ0014712001, 

SOAH Docket No. 582-08-0690, TCEQ Docket No. 2007-1178-MWD, July 7, 2009 (Final Order Issuing 

Permit)(Attachment D to these comments). 

[FN14] Rick Wood v. Texas Commission on Environmental Quality and Lerin Hills Municipal Utility District, Docket No. 

13-13-00189-CV. 

[FN15] August 10, 2005 Memorandum re: Tier 2 Anti-degradation Reviews and Significance Thresholds, From Ephram 

S. King, Director Office of Science and Technology, To Water Management Division Directors, Regions 1 - 10. 

[FN16] Kentucky Waterways Alliance, et al., v. Johnson, et al., 540 F.3d 466, 483 (6th Cir. 2008). 

[FN17] Texas Commission on Environmental Quality, Procedures to Implement the Texas Surface Water Quality 

Standards, RG-194, (2003) pp. 30-35. 

[FN18] July 7, 2009 Final Order of TCEQ, at p. 13, in the Matter of the Application of Lerin Hills, Ltd. for TPDES Permit 

No. WQ0014712001, SOAH Docket No. 582-08-0690, TCEQ Docket No. 2007-1178-MWD (Attachment D to these 

comments). 

[FN19] June 8, 2010 Proposal For Decision, In Re: Application of Oak Grove Management Company for TPDES Permit 

No. WQ0001986000, SOAH Docket No. 582-09-3322; TCEQ Docket No. 2009-0398-IWD. This case is currently 

pending in litigation before the Austin Court of Appeals, Robertson County: Our Land, Our Lives and Roy Henrichson v. 

Texas Commission on Environmental Quality and Oak Grove Management Company, Docket No. 03-12-00801-CV. 

TCEQ's application of the de minimis exemption to the Tier 2 review is a live issue in that judicial appeal due to its 

unreasonable interpretation of the term in that case. 

[FN20] See United States Environmental Protection Agency, Steam Electric Power Generating Point Source Category: 

Final Detailed Study Report, EPA 821-R-09-008 (2009), p. 3-19 ("Once-through cooling water and cooling tower 

blowdown may contain the following pollutants, often in low concentrations, as a result of chlorination and corrosion and 

erosion of the piping, condenser, and cooling tower materials: chlorine, copper, nickel, aluminum, boron, chlorinated 

organic compounds, suspended solids, brominated compounds, and nonoxidizing biocides. Although the pollutants 

present in cooling tower-related wastewaters are often at low concentrations, the overall pollutant mass discharge may 

be significant due to the large flow rates of cooling water discharges at steam electric power plants."). 

[FN21] January 22, 2009 Interoffice Memorandum, from Lili Murphy, Water Quality Standards Team, to Industrial 

Permits Team, re: Oak Grove Management Company LLC Permit No. 01986.000 Amendment. Exhibit LM-7 in the 

matter of the Application of Oak Grove Management L.L.P. for TPDES Permit No. WQ0001986000, TCEQ Docket No. 

2009-0398-IWD, SOAH Docket No. 582-09-3322. 

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[FN22] Exhibit LM-1 (Testimony of Lili Murphy, Aquatic Scientist III for TCEQ), p. 5, In Re: Application of Oak Grove 

Management Company for TPDES Permit No. WQ0001986000, SOAH Docket No. 582-09-3322; TCEQ Docket No. 

2009-0398-IWD 

[FN23] August 24, 2010 Final Order of TCEQ Re: Application of Oak Grove Management Company for TPDES Permit 

No. WQ0001986000, TCEQ Docket No. 2009-0398-IWD, p. 21. 

[FN24] See, e.g., August 10, 2005 Memorandum re: Tier 2 Antidegradation Reviews and Significance Thresholds, From 

Ephram S. King, Director Office of Science and Technology, To Water Management Division Directors, Regions 1 - 10, 

p. 3. 

[FN25] August 10,2005 Memorandum re: Tier 2 Antidegradation Reviews and Significance Thresholds, From Ephram 

S. King, Director Office of Science and Technology, To Water Management Division Directors, Regions 1- 10, p. 2. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0166-A2.001.019 

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water 

Kentucky is also concerned the antidegradation implementation language in §131.12 does not provide for de minimis 

exemptions from antidegradation review for projects that consume only an insignificant increment of the assimilative 

capacity of a waterbody. In Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th Cir., 2008) the Sixth Circuit 

Court of Appeals affirmed the use of de minimis exemptions and EPA and the KDOW made great efforts to ensure the 

appropriate adoption of the de minimis exemption in Kentucky's Antidegradation Policy Implementation Methodology 

regulation (401 KAR 10:030). EPA should consider authorizing in the final rule de minimis exemptions from 

antidegradation review for projects that consume only an insignificant increment of the assimilative capacity of a 

waterbody. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

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Comment ID 0180-A2.001.009 

Author Name: Hobson Chris 

Organization: Southern Company 

We also have concerns about how EPA's Proposal would affect state authority to establish de minimis thresholds and 

other legitimate exemptions from antidegradation review, which have proven to be highly effective in enabling states to 

focus their resources on the projects that have the greatest potential to adversely affect water quality. The Proposal is 

silent on these state-based tailoring decisions, but EPA's prescriptive new antidegradation review requirements could 

be interpreted to undermine them. We urge EPA to avoid this outcome by explicitly affirming state authority to establish 

de minimis thresholds and other exemptions. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0185-A1.001.011 

Author Name: Poltak Ronald 

Organization: New England Interstate Water Pollution Control Commission 

Finally, the NEIWPCC states are concerned about changes to 40 CFR 131.12(b)(2) which require alternatives analyses 

for all activities affecting Tier 2 waters. In theory, any activity in the watershed of a Tier 2 waterbody has some potential 

to degrade water quality, however, in many cases; the impacts of these activities will result in de minimus changes to 

water quality. Performing alternatives analyses for these activities would strain limited state resources. Therefore, the 

NEIWPCC states recommend that the federal regulation not require alternatives analysis for those activities that would 

have de minimus impacts on water quality. This approach would be consistent with the antidegradation implementation 

methods already adopted by some states. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

7.e.ii 

12.a 

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Comment ID 0187-A1.001.006 

Author Name: Allmon Eric 

Organization: Lowerre, Frederick, Perales, Allmon & Rockwell on behalf of Lone Star Chapter of the Sierra Club 

Several states, including Texas, have adopted some form of exemption from the Tier 2 review process for activities 

considered to involve an insignificant lowering of water quality. Experience has shown that more strict federal regulatory 

constraints are necessary in order to avoid allowing such exemptions to simply swallow the rule, and wholly negate the 

goals of the anti-degradation policy. 

For example, Texas' WQS only require a regulatory action involving the "degradation" of water quality to undergo a Tier 

2 review, and in turn define "degradation" as a greater-than de minimis lowering of water quality.[FN3] Texas has 

chosen to implement this definition in a manner that renders the alternatives analysis of the Tier 2 review wholly 

inapplicable to any NPDES permit issued by the Texas Commission on Environmental Quality. Since receiving 

delegated authority over the NPDES program in 1998,[FN4] Texas has issued numerous discharge permits lowering 

water quality to a point where the receiving waters barely meet the applicable Tier 1 standard to protect attainable uses. 

At the same time, Texas has concluded that none of its permitting actions resulted in a greater than de minimis lowering 

of water quality, and thus, to commenters' knowledge, Texas has exempted every permitting action taken from the 

alternatives analysis of a Tier 2 review. 

For example, in the case of an application by the Cities of Bellmead, Hewitt, Lacy Lakeview, Lorena, Robinson, Waco 

and Woodway to permit a discharge of domestic wastewater in a quantity of 1.5 MGD into Bullhide Creek, TCEQ found 

that the discharge would cause a less-than de minimis lowering of water quality, and thus wholly exempted the permit 

from the alternatives analysis of the Tier 2 review.[FN5] In that case, the Applicant itself found that the discharge would 

cause a reduction in dissolved oxygen within the receiving waters under critical concentration of 4.82 mg/L.[FN6] This 

concentration was even less than the applicable 5.0 mg/L Tier 1 standard for the protection of high aquatic life uses in 

the receiving water body.[FN7] But, relying on examples provided in TCEQ's implementation procedures for its WQS, 

during a contested case hearing, the Applicant's expert testified that such a lowering of water quality was not significant 

because he believed the receiving water did not exhibit an exceptional aquatic life use or maintain a sensitive aquatic 

community.[FN8] Such an approach, derived from TCEQ's guidance on the implementation of its anti-degradation 

policies,[FN9] is contrary to EPA's position that all high quality waters warrant the protection of a Tier 2 review. 

As another example, in the case of the application of Far Hills Utility District for TPDES Permit No. 14555-001, TCEQ's 

Executive Director found the lowering of water quality as the result of a proposed discharge of domestic wastewater to 

be de minimis even though the Executive Director's own modeling reflected that the discharge would result in a 

dissolved oxygen concentration within the receiving waters of 4.80 mg/L, a water quality that was again even less than 

the applicable 5.0 mg/L Tier 1 standard for protection of high aquatic life uses.[FN10] Again, TCEQ had conflated its de 

minimis review with its requirements for a Tier 1 review. 

In the more recent case of an application by Lerin Hills for TPDES Permit No. WQ0014712001, TCEQ similarly found 

that a lowering of dissolved oxygen which its own staff had modeled to be from 6.45 mg/L in a receiving water to 5.03 

mg/L constituted a less than de minimis lowering of water quality.[FN11] In the Lerin Hills case, a contested case 

hearing had been held in which the administrative law judge found that the discharge would violate TCEQ's Tier 2 policy 

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based on this concern and concerns regarding the growth of aquatic vegetation,[FN12] but the Commission reversed 

these findings and issued the permit anyway.[FN13] Given the unreasonable nature of that decision, and the manner in 

which it conflates the Tier 1 review and the Tier 2 review, that matter is currently subject to litigation on the issue 

pending before the Corpus Christi Court of Appeals.[FN14] These examples reflect the manner in which TCEQ has 

repeatedly and consistently treated a regulatory action as constituting a less-than de minimis lowering of water quality 

so long as the applicable Tier 1 criteria has been met. This approach wholly undermines the intent of the Tier 2 review 

of maintaining water quality in high-quality water bodies. 

Texas' non-implementation of the Tier 2 review process runs counter to direction provided by both EPA guidance and 

the courts. EPA's Water Quality Standards Handbook ("WQS Handbook") indicates that activities such as new 

discharges or expansion of existing facilities would presumably lower water quality and would not be permissible unless 

the State conducts a review demonstrating an economic or social need for the activity. Through guidance issued to 

Regional offices, EPA has made clear that "significance thresholds at a level that can be demonstrated to be consistent 

with the purpose of tier 2 anti-degradation requirements," or else, "a new or increased discharge may result in 

significant degradation that will not be subject to anti-degradation review, and decisions about the lowering of water 

quality in high quality waters may be made without public consideration of necessity and importance, resulting in the 

loss or diminishment of a valuable natural resource."[FN15] Consistent with this administrative guidance, the United 

States Sixth Circuit Court of Appeals has held that the administrative authority to create such an exemption from the 

directive of the Clean Water Act that water quality be maintained is properly considered a "narrow" one.[FN16] Contrary 

to this regulatory and judicial guidance, TCEQ has applied its de minimis exemption in a manner that creates such a 

high threshold for a lowering of water quality to be considered significant that the threshold has never been met. 

Further, TCEQ's application of its de minimis exemption is contrary to the objectives of the Tier 2 review to create a 

transparent process for public participation. TCEQ's rules do not define the term de minimis. While TCEQ's 

implementation procedures provide examples of rare permitting actions that may involve a greater-than de minimis 

lowering of water quality,[FN17] Texas has never found such a situation to warrant categorizing a regulatory action as 

causing a greater than de minimis change in water quality. In short, little is known of Texas' definition of the term de 

minimis except that it is broad enough to include every permitting action Texas has ever encountered where the 

requirements of a Tier 1 review are met. 

This uncertainty is particularly evident for permitting actions that involve the discharge of nutrients. In the matter of an 

application by Lerin Hills Ltd. for TPDES Permit No. WQ0014712001, TCEQ formally adopted the position that numeric 

data regarding the baseline and post-discharge concentrations of nutrients in a receiving water are categorically 

irrelevant to the Tier 2 review.[FN18] This position was based on a reasoning that Texas' general criteria for nutrients is 

expressed in narrative form, and thus only narrative information could be considered. Rather, TCEQ has taken the 

position that only "qualitative" expert opinions may be considered relevant to a Tier 2 review for nutrients, and that the 

public is not allowed to question whether an expert's opinion bears any relationship to the quantitative amount of 

nutrients proposed to be discharged. This process, by which a lowering of water quality is considered de minimis as 

long as an applicant can produce an "expert" to say so denies the public any opportunity to meaningfully evaluate the 

process by which TCEQ has reached a conclusion that a permitting action will cause a less-than de minimis lowering of 

water quality. The public is thereby denied any meaningful opportunity to participate in TCEQ's treatment of the Tier 2 

anti-degradation requirements. 

TCEQ has adopted a similarly broad interpretation of its de minimis exemption when considering applications to 

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authorize industrial wastewater discharges. For example, in and around 2009-2010, TCEQ considered an application by 

Oak Grove Management Company for an amendment to TPDES Permit No. WQ0001986 in order to allow an increase 

in the quantity of once-through cooling water at a lignite-fired power plant from an existing authorization of 1,470 MGD 

to a quantity of 1,610 MGD - an increase of 140 MGD.[FN19] Such an increase had the reasonable potential to 

increase the quantity of bioaccumulative contaminants into the receiving water body.[FN20] The receiving water body 

was a reservoir with little inflow or outflow not associated with the plant, so that there would be little opportunity for 

contaminants to leave this system. Even so, this permitting action was exempted from the Tier 2 alternatives review 

premised on a finding that it would result in a less-than de minimis lowering of water quality. The analysis provided by 

TCEQ's Executive Director in the performance of his technical review simply stated that, "A Tier 2 review has 

preliminarily determined that no significant degradation of water quality is expected [in the receiving reservoir and 

downstream waters]."[FN21] In direct testimony during a contested case hearing, TCEQ staff stated that de minimis for 

purposes of a Tier 2 review meant a less than noticeable decrease in water quality,[FN22] as TCEQ staff often state 

under questioning. But, neither she nor any other TCEQ staff person provided any analysis of how the 140 MGD 

increased discharge being authorized would result in a less-than noticeable lowering of water quality. TCEQ's final 

order in the matter simply stated that, "The impact of the authorized increase discharge of once-through cooling water 

under the revised draft permit is minimal." [FN23] An expert for the Applicant testified during the contested case hearing 

that the discharge would use less than 10% of the assimilative capacity of the receiving waters, but in doing so he 

offered no evaluation of baseline water quality concentrations, resulting water quality concentrations, the assimilative 

capacity of the receiving waters, or the amount of the assimilative capacity that would be used by the discharge. Even if 

such testimony during a contested case hearing was adequate to demonstrate the water quality impacts of a discharge 

to be de minimis, the TPDES program should be administered in a manner that allows the public to transparently 

consider TCEQ's Tier 2 evaluation during the comment period, and which allows the EPA to consider this analysis 

during its opportunity to comment on a draft permit. In the Oak Grove matter, the only information available during the 

comment period regarding TCEQ's determination that the impacts of the 140 MGD increase would be de minimis were 

conclusory statements to that effect by the Executive Director's staff, with no supporting analysis. 

Consideration of Cumulative Impacts and Determination of Baseline Water Quality 

By guidance, EPA has made clear that the Tier 2 anti-degradation review should address the cumulative impacts of 

regulatory actions impacting a water body, and not solely the impact of the particular action at issue.[FN24] 

Commenters are concerned that this requirement can be easily contravened. For example, while TCEQ's rules provide 

that the highest water quality sustained in a water body since November 28, 1975 defines baseline conditions for 

purposes of degradation, TCEQ staff have repeatedly made clear that insofar as they perform an antidegradation 

analysis, they look to existing conditions and make no effort to investigate whether the receiving water body previously 

sustained a higher water quality. Any provision establishing a minimum standard for the determination of significance 

should be clear that the relevant change is the cumulative lowering of water quality as the result of all past and present 

regulatory actions impacting a water body, and not merely the impact of the particular regulatory action at issue. 

Conclusion and Recommended Modification to Proposed Rules 

These comments focus on problems with the implementation of the Tier 2 anti-degradation policy within the State of 

Texas. Even so, thorny issues regarding the role of a significance threshold in the performance of a Tier 2 review have 

arisen with regard to the administration of the NPDES program in a number of states. In order to ensure the effective 

implementation of the Tier 2 anti-degradation policy, to avoid the need to address the issue on an ad hoc basis in each 

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state, and to create transparency in the process, EPA should adopt by rule standards for what regulatory actions may 

be exempted from the alternatives analysis of a Tier 2 review as "insignificant." Representatives of the Environmental 

Community in Texas have previously raised the concerns set forth in this letter with EPA staff and through formal 

comments on EPA's review of TCEQ's water quality standards. In general, EPA has responded to these concerns by 

indicating that such concerns would be addressed by the current rulemaking. Commenters appreciate EPA's efforts to 

clarify its rules regarding WQS, but as discussed herein feel that additional specificity is needed. 

By guidance, and within the context of the Water Quality Guidance for the Great Lakes, EPA has stated that a 

significance threshold of 10% of the available assimilative capacity, coupled with a cumulative cap, represents "a 

reasonable balance between the need of the regulatory agencies to limit the number of actions involving nonbioaccumulative chemicals of concern that are subjected to the detailed anti-degradation demonstration requirements, 

and the need to protect and maintain water quality." [FN25] While this approach may not be perfect, Commenters feel 

that it would constitute a good place to start to incorporate such threshold as the maximum threshold allowable for a 

determination of whether a regulatory action will cause a significant, or greater-than de minimis, change in water quality. 

Without such specificity, Commenters are concerned that Texas and other states may continue to avoid application of 

the Tier 2 alternatives analysis by simply considering all, or virtually all, of its regulatory actions to cause a lowering of 

water quality that does not constitute "degradation." 

TCEQ's non-implementation of the Tier 2 anti-degradation review already violates EPA's existing rules on this issue. 

Clarifying EPA's rules to establish more certainty in the necessary elements for a "significance" threshold would aid in 

correcting this deficiency in the TPDES program. 

[FN3] 30 TAC § 307.5(b)(2). 

[FN4] 65 Fed. Reg. 51164, Sep. 24, 1998 (Environmental Protection Agency: State Program Requirements; Approval of 

Application to Administer the National Pollutant Discharge Elimination System (NPDES) Program; Texas). 

[FN5] Application for a New Permit by City of Waco, City of Woodway, City of Bellmead, City of Lacy-Lakeview, City of 

Robison, City of Hewitt, and City of Lorena for Wastewater Permit No. WQ0014889-001, Issued January 6, 2010. 

TCEQ had found that Bullhide Creek was a high-quality water body, noting that it had been identified as having high 

aquatic life uses. 

[FN6] Exhibit APP-23 at p. 3 and Exhibit APP-27 at p. 3, in the Matter of the Application of Cities of Bellmead, Lacy 

Lakeview, Robison, Hewitt, and Lorena for Wastewater Permit No. WQ0014889-001, SOAH Docket No. 582-09-1149, 

TCEQ Docket No. 2008-1742-MWD. (Attachments A and B to these comments). 

[FN7] The applicable Tier 1 water quality criteria for the protection of High Aquatic Life Uses in the receiving water body 

was 5.0 mg/L as a 24-hour mean. 30 TAC § 307.4(h)(2), 307.7(b)(3)(A)(i). As a matter of standard modeling practice, 

TCEQ has adopted the position that any modeling result at or above 4.80 mg/L is adequate to show compliance with a 

5.0 mg/L Tier 1 standard. TCEQ has asserted that EPA is aware of this policy and has no objection to it. Testimony of 

Karen Holligan, staff water quality modeler for TCEQ, Transcript of June 26, 2006 Hearing on the Merits in the Matter of 

the Application of Far Hills Utility District for TPDES Permit No. 14555-001, p. 33, line 19 - Page 34, line 19. 

(Attachment C to these comments) 

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[FN8] See Pre-Filed Testimony of Dr. James Miertschin, P.E., p. 56-57, Exh. APP-11 in the Matter of the Application of 

the City of Bellmead, et al for TPDES Permit No. WQ0014889-001. 

[FN9] Texas Commission on Environmental Quality, Procedures to Implement the Texas Surface Water Quality 

Standards, RG-194, (2003) p. 34, stating that degradation becomes likely if increased loading of oxygen-demanding 

substances are "projected to decrease dissolved oxygen by more than 0.5 mg/L for a substantial distance in a water 

body that has exceptional quality aquatic life and a relatively unique and potentially sensitive community of aquatic 

organisms." 

[FN10] See Testimony of Karen Holligan, cited above. The Far Hills Application was ultimately denied by the 

Commission based on the applicant's proposal to locate wastewater treatment units within a wetland in violation of 

TCEQ rules, so as a technical matter the Commissioners of the TCEQ were not called upon to directly address the antidegradation issue. 

[FN11] See March 4, 2009 Proposal For Decision in The Matter of the Application of Lerin Hills, Ltd. for TPDES Permit 

No. WQ0014712001, SOAH Docket No. 582-08-0690, TCEQ Docket No. 2007-1178-MWD. The Lerin Hills matter is 

currently the subject of litigation pending before the Corpus Christi Court of Appeals, Rick Wood v. Texas Commission 

on Environmental Quality and Lerin Hills Municipal Utility District, Docket No. 13-13-00189-CV. TCEQ's application of 

the de minimis exemption to the Tier 2 review is a live issue in that judicial appeal due to its unreasonable interpretation 

of the term in that case. 

[FN12] Id. 

[FN13] Tex. Comm'n on Environmental Quality, Application of Lerin Hills, Ltd. for TPDES Permit No. WQ0014712001, 

SOAH Docket No. 582-08-0690, TCEQ Docket No. 2007-1178-MWD, July 7, 2009 (Final Order Issuing 

Permit)(Attachment D to these comments). 

[FN14] Rick Wood v. Texas Commission on Environmental Quality and Lerin Hills Municipal Utility District, Docket No. 

13-13-00189-CV. 

[FN15] August 10, 2005 Memorandum re: Tier 2 Anti-degradation Reviews and Significance Thresholds, From Ephram 

S. King, Director Office of Science and Technology, To Water Management Division Directors, Regions 1 - 10. 

[FN16] Kentucky Waterways Alliance, et al., v. Johnson, et al., 540 F.3d 466, 483 (6th Cir. 2008). 

[FN17] Texas Commission on Environmental Quality, Procedures to Implement the Texas Surface Water Quality 

Standards, RG-194, (2003) pp. 30-35. 

[FN18] July 7, 2009 Final Order of TCEQ, at p. 13, in the Matter of the Application of Lerin Hills, Ltd. for TPDES Permit 

No. WQ0014712001, SOAH Docket No. 582-08-0690, TCEQ Docket No. 2007-1178-MWD (Attachment D to these 

comments). 

[FN19] June 8, 2010 Proposal For Decision, In Re: Application of Oak Grove Management Company for TPDES Permit 

No. WQ0001986000, SOAH Docket No. 582-09-3322; TCEQ Docket No. 2009-0398-IWD. This case is currently 

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pending in litigation before the Austin Court of Appeals, Robertson County: Our Land, Our Lives and Roy Henrichson v. 

Texas Commission on Environmental Quality and Oak Grove Management Company, Docket No. 03-12-00801-CV. 

TCEQ's application of the de minimis exemption to the Tier 2 review is a live issue in that judicial appeal due to its 

unreasonable interpretation of the term in that case. 

[FN20] See United States Environmental Protection Agency, Steam Electric Power Generating Point Source Category: 

Final Detailed Study Report, EPA 821-R-09-008 (2009), p. 3-19 ("Once-through cooling water and cooling tower 

blowdown may contain the following pollutants, often in low concentrations, as a result of chlorination and corrosion and 

erosion of the piping, condenser, and cooling tower materials: chlorine, copper, nickel, aluminum, boron, chlorinated 

organic compounds, suspended solids, brominated compounds, and nonoxidizing biocides. Although the pollutants 

present in cooling tower-related wastewaters are often at low concentrations, the overall pollutant mass discharge may 

be significant due to the large flow rates of cooling water discharges at steam electric power plants."). 

[FN21] January 22, 2009 Interoffice Memorandum, from Lili Murphy, Water Quality Standards Team, to Industrial 

Permits Team, re: Oak Grove Management Company LLC Permit No. 01986.000 Amendment. Exhibit LM-7 in the 

matter of the Application of Oak Grove Management L.L.P. for TPDES Permit No. WQ0001986000, TCEQ Docket No. 

2009-0398-IWD, SOAH Docket No. 582-09-3322. 

[FN22] Exhibit LM-1 (Testimony of Lili Murphy, Aquatic Scientist III for TCEQ), p. 5, In Re: Application of Oak Grove 

Management Company for TPDES Permit No. WQ0001986000, SOAH Docket No. 582-09-3322; TCEQ Docket No. 

2009-0398-IWD 

[FN23] August 24, 2010 Final Order of TCEQ Re: Application of Oak Grove Management Company for TPDES Permit 

No. WQ0001986000, TCEQ Docket No. 2009-0398-IWD, p. 21. 

[FN24] See, e.g., August 10, 2005 Memorandum re: Tier 2 Antidegradation Reviews and Significance Thresholds, From 

Ephram S. King, Director Office of Science and Technology, To Water Management Division Directors, Regions 1 - 10, 

p. 3. 

[FN25] August 10,2005 Memorandum re: Tier 2 Antidegradation Reviews and Significance Thresholds, From Ephram 

S. King, Director Office of Science and Technology, To Water Management Division Directors, Regions 1- 10, p. 2. 

Response 

For response to this comment, see the following response essay(s): 

7.i: Section A 

Comment ID 0196-A1.001.017 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

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7.i 

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De Minimus Exemptions 

EPA should affirm that nothing in its proposal will impact existing state exceptions and de minimus thresholds 

concerning anti-degradation implementation, and that EPA will not impede states from incorporating such provisions 

into their programs in a manner deemed appropriate by the states. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0203-A1.001.015 

Author Name: Christman Jim 

Organization: Hunton & Williams on behalf of Utility Water Act Group 

C. EPA Should Not Interfere with State Exemptions 

As the comments of the Federal Water Quality Coalition point out, many states have "de minimis" thresholds for 

antidegradation review, so that small increases in pollutant loadings do not have to have antidegradation review and the 

state agency can use its resources on larger projects that have more impact on water quality. Also, some states exempt 

certain kinds of projects from antidegradation review where review is unnecessary (because a similar review is taking 

place under another program) or where the proposed action is of clear social or economic benefit (and therefore would 

pass antidegradation review in any case). For example, a state may exempt from antidegradation review an increased 

discharge from air pollution control equipment required by the Clean Air Act. EPA should make clear that nothing in its 

proposal will affect existing state exceptions and de minimis thresholds and that EPA will not discourage states from 

incorporating such provisions into their state programs. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0207-A1.001.012 

Author Name: Bodine Susan 

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Organization: American Farm Bureau Federation et al. 

•De minimis increases - EPA should codify its policy of allowing de minimis levels of increased loading without an 

antidegradation review. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0207-A1.001.030 

Author Name: Bodine Susan
 

Organization: American Farm Bureau Federation et al.
 

3. De minimis exemptions. 

We note that the proposed rule does not address state choices about a "de minimis" level of increased loading that is 

not subject to antidegradation review. We assume such decisions are left to the discretion of the state. If EPA believes 

otherwise, it should at a minimum reaffirm in the preamble to the final rule the policy adopted in the 2005 Ephraim King 

memorandum on "Tier 2 Antidegradation Reviews and Significance Thresholds" (attached). 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0211-A1.001.004 

Author Name: Lane David 

Organization: Minnesota Environmental Science and Economic Review Board 

1. EPA's anti-degradation policy should contain de minimus thresholds for states to use as a guide, and to signal state 

policies accordingly. 

EPA should clearly define a de minimus threshold below which a full alternatives analysis would not be required. 

MESERB's members are municipal point sources that are already subject to National Pollutant Discharge Elimination 

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System (NPDES) regulation for their wastewater discharges. Many, if not all of MESERB's members are also subject to 

regulation of municipal separate storm sewer systems (MS4s) and drinking water. Degradation alternatives that involve 

the engineering, construction, and installation of new treatment technologies will in many cases come at considerable 

time and expense. 

While no one should support degrading surface waters, it is nonetheless critical that the time and expense of antidegradation review be balanced against the potential degradation we wish to avoid. Some projects are simply so 

miniscule in the face of development needs, versus risks of degradation, that full review would prove counterproductive. States will follow EPA's lead on this, so it is critical that EPA provide for de minimus thresholds either in rule 

or in guidance so that states do not eliminate them completely (as Minnesota is proposing to do). [FN7] 

EPA must make clear in its adopted rules that implementation costs and environmental benefits must be balanced with 

one another, and de minimus exemptions subject to proper EPA review and approval would be an acceptable 

approach. 

[FN7] See Appendix A at 4-5. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0213-A1.001.004 

Author Name: Coyne Kevin 

Organization: West Virginia Department of Environmental Protection 

That being said, we believe any further additions or requirements beyond what has been included in the proposal will 

create significant issues for not only for West Virginia but also for many other states that have already gone through the 

development and adoption of antidegradation policies and procedures. This includes any further changes to the current 

interpretation of "de-minimis" provisions currently being used in state NPDES permitting procedures. As stated in the 

March 29, 2004 EPA approval letter, the "de-minimis" provision "...provides a means for States to differentiate between 

actions that will result in an increased loading of a pollutant to receiving water that is likely to have a significant impact 

on water quality and those that are unlikely to do so and focus review efforts on actions that will degrade water 

quality..." and this provision is a key component in the state NPDES process. The proposal should clarify that an 

alternatives analysis is only required when the states EPA approved "de-minimis" threshold has been exceeded and 

constitutes a significant impact to water quality. DEP strongly urges EPA to consider not adding any further 

requirements than what has been included in the proposal, and take into consideration the ACWA comments and 

suggested language changes as it finalizes the antidegradation portion of the proposal. 

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Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0219-A1.001.011 

Author Name: McNelly Jeff 

Organization: ARIPPA 

D. De Minimus Exemptions 

The States and Tribes have existing state exceptions and deminimus thresholds concerning antidegradation 

implementation. These exceptions should be allowed to be retained and further EPA should not impede the concept to 

continue in a State-Tribe Program. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0221-A1.001.004 

Author Name: Coyne Kevin 

Organization: West Virginia Department of Environmental Protection 

That being said, we believe any further additions or requirements beyond what has been included in the proposal will 

create significant issues for not only for West Virginia but also for many other states that have already gone through the 

development and adoption of antidegradation policies and procedures. This includes any further changes to the current 

interpretation of "de-minimis" provisions currently being used in state NPDES permitting procedures. As stated in the 

March 29, 2004 EPA approval letter, the "de-minimis" provision "...provides a means for States to differentiate between 

actions that will result in an increased loading of a pollutant to receiving water that is likely to have a significant impact 

on water quality and those that are unlikely to do so and focus review efforts on actions that will degrade water 

quality..." and this provision is a key component in the state NPDES process. The proposal should clarify that an 

alternatives analysis is only required when the states EPA approved "de-minimis" threshold has been exceeded and 

constitutes a significant impact to water quality. DEP strongly urges EPA to consider not adding any further 

requirements than what has been included in the proposal, and take into consideration the ACWA comments and 

suggested language changes as it finalizes the antidegradation portion of the proposal. 

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Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0231-A2.001.029 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

Regarding de minimis exemptions, EPA should affirm that nothing in its proposal will affect existing State exceptions 

and de minimis thresholds. EPA must not prevent States from incorporating such provisions into their State programs. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0234-A2.001.010 

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition 

C. State Exceptions and De Minimis Exemptions 

Many States have adopted "de minimis" thresholds, so that small increases in pollutant loadings do not have to undergo 

antidegradation review, and the State agency can focus its resources on larger projects that can have more impact on 

water quality. In addition, some States have adopted exceptions to antidegradation review for particular kinds of 

projects, where review is unnecessary (since a similar review is taking place under another program) or where it is clear 

that the action being planned is of clear social/economic benefit (and therefore would pass antidegradation review 

anyway). An example is an increase in loading due to installation of required air pollution control equipment; it would be 

environmentally counterproductive to refuse to allow a facility to install measures needed to comply with the Clean Air 

Act because it has to go through antidegradation review for a small loading increase to an unimpaired waterbody. 

These exceptions and "de minimis" levels are critical to development of a properly functioning State antidegradation 

program. EPA should affirm that nothing in its proposal will affect existing State exceptions and de minimis thresholds 

and EPA will not hamper States from incorporating such provisions into their State programs in the manner that makes 

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7.i 

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the most sense for their particular situations. 

Response 

For response to this comment, see the following response essay(s): 

7.i: Section A 

Comment ID 0242-A2.001.005 

Author Name: Allmon Eric 

Organization: Lowerre, Frederick, Perales, Allmon & Rockwell on behalf of Clean Water Action et al. 

Several states, including Texas, have adopted some form of exemption from the Tier 2 review process for activities 

considered to involve an insignificant lowering of water quality. Experience has shown that more strict federal regulatory 

constraints are necessary in order to avoid allowing such exemptions to simply swallow the rule, and wholly negate the 

goals of the anti-degradation policy. 

For example, Texas' WQS only require a regulatory action involving the "degradation" of water quality to undergo a Tier 

2 review, and in turn define "degradation" as a greater-than de minimis lowering of water quality.[FN3] Texas has 

chosen to implement this definition in a manner that renders the alternatives analysis of the Tier 2 review wholly 

inapplicable to any NPDES permit issued by the Texas Commission on Environmental Quality. Since receiving 

delegated authority over the NPDES program in 1998,[FN4] Texas has issued numerous discharge permits lowering 

water quality to a point where the receiving waters barely meet the applicable Tier 1 standard to protect attainable uses. 

At the same time, Texas has concluded that none of its permitting actions resulted in a greater than de minimis lowering 

of water quality, and thus, to commenters' knowledge, Texas has exempted every permitting action taken from the 

alternatives analysis of a Tier 2 review. 

For example, in the case of an application by the Cities of Bellmead, Hewitt, Lacy Lakeview, Lorena, Robinson, Waco 

and Woodway to permit a discharge of domestic wastewater in a quantity of 1.5 MGD into Bullhide Creek, TCEQ found 

that the discharge would cause a less-than de minimis lowering of water quality, and thus wholly exempted the permit 

from the alternatives analysis of the Tier 2 review.[FN5] In that case, the Applicant itself found that the discharge would 

cause a reduction in dissolved oxygen within the receiving waters under critical concentration of 4.82 mg/L.[FN6] This 

concentration was even less than the applicable 5.0 mg/L Tier 1 standard for the protection of high aquatic life uses in 

the receiving water body.[FN7] But, relying on examples provided in TCEQ's implementation procedures for its WQS, 

during a contested case hearing, the Applicant's expert testified that such a lowering of water quality was not significant 

because he believed the receiving water did not exhibit an exceptional aquatic life use or maintain a sensitive aquatic 

community.[FN8] Such an approach, derived from TCEQ's guidance on the implementation of its anti-degradation 

policies,[FN9] is contrary to EPA's position that all high quality waters warrant the protection of a Tier 2 review. 

As another example, in the case of the application of Far Hills Utility District for TPDES Permit No. 14555-001, TCEQ's 

Executive Director found the lowering of water quality as the result of a proposed discharge of domestic wastewater to 

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be de minimis even though the Executive Director's own modeling reflected that the discharge would result in a 

dissolved oxygen concentration within the receiving waters of 4.80 mg/L, a water quality that was again even less than 

the applicable 5.0 mg/L Tier 1 standard for protection of high aquatic life uses.[FN10] Again, TCEQ had conflated its de 

minimis review with its requirements for a Tier 1 review. 

In the more recent case of an application by Lerin Hills for TPDES Permit No. WQ0014712001, TCEQ similarly found 

that a lowering of dissolved oxygen which its own staff had modeled to be from 6.45 mg/L in a receiving water to 5.03 

mg/L constituted a less than de minimis lowering of water quality.[FN11] In the Lerin Hills case, a contested case 

hearing had been held in which the administrative law judge found that the discharge would violate TCEQ's Tier 2 policy 

based on this concern and concerns regarding the growth of aquatic vegetation,[FN12] but the Commission reversed 

these findings and issued the permit anyway.[FN13] Given the unreasonable nature of that decision, and the manner in 

which it conflates the Tier 1 review and the Tier 2 review, that matter is currently subject to litigation on the issue 

pending before the Corpus Christi Court of Appeals.[FN14] These examples reflect the manner in which TCEQ has 

repeatedly and consistently treated a regulatory action as constituting a less-than de minimis lowering of water quality 

so long as the applicable Tier 1 criteria has been met. This approach wholly undermines the intent of the Tier 2 review 

of maintaining water quality in high-quality water bodies. 

Texas' non-implementation of the Tier 2 review process runs counter to direction provided by both EPA guidance and 

the courts. EPA's Water Quality Standards Handbook ("WQS Handbook") indicates that activities such as new 

discharges or expansion of existing facilities would presumably lower water quality and would not be permissible unless 

the State conducts a review demonstrating an economic or social need for the activity. Through guidance issued to 

Regional offices, EPA has made clear that "significance thresholds at a level that can be demonstrated to be consistent 

with the purpose of tier 2 anti-degradation requirements," or else, "a new or increased discharge may result in 

significant degradation that will not be subject to anti-degradation review, and decisions about the lowering of water 

quality in high quality waters may be made without public consideration of necessity and importance, resulting in the 

loss or diminishment of a valuable natural resource."[FN15] Consistent with this administrative guidance, the United 

States Sixth Circuit Court of Appeals has held that the administrative authority to create such an exemption from the 

directive of the Clean Water Act that water quality be maintained is properly considered a "narrow" one.[FN16] Contrary 

to this regulatory and judicial guidance, TCEQ has applied its de minimis exemption in a manner that creates such a 

high threshold for a lowering of water quality to be considered significant that the threshold has never been met. 

Further, TCEQ's application of its de minimis exemption is contrary to the objectives of the Tier 2 review to create a 

transparent process for public participation. TCEQ's rules do not define the term de minimis. While TCEQ's 

implementation procedures provide examples of rare permitting actions that may involve a greater-than de minimis 

lowering of water quality,[FN17] Texas has never found such a situation to warrant categorizing a regulatory action as 

causing a greater than de minimis change in water quality. In short, little is known of Texas' definition of the term de 

minimis except that it is broad enough to include every permitting action Texas has ever encountered where the 

requirements of a Tier 1 review are met. 

This uncertainty is particularly evident for permitting actions that involve the discharge of nutrients. In the matter of an 

application by Lerin Hills Ltd. for TPDES Permit No. WQ0014712001, TCEQ formally adopted the position that numeric 

data regarding the baseline and post-discharge concentrations of nutrients in a receiving water are categorically 

irrelevant to the Tier 2 review.[FN18] This position was based on a reasoning that Texas' general criteria for nutrients is 

expressed in narrative form, and thus only narrative information could be considered. Rather, TCEQ has taken the 

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position that only "qualitative" expert opinions may be considered relevant to a Tier 2 review for nutrients, and that the 

public is not allowed to question whether an expert's opinion bears any relationship to the quantitative amount of 

nutrients proposed to be discharged. This process, by which a lowering of water quality is considered de minimis as 

long as an applicant can produce an "expert" to say so denies the public any opportunity to meaningfully evaluate the 

process by which TCEQ has reached a conclusion that a permitting action will cause a less-than de minimis lowering of 

water quality. The public is thereby denied any meaningful opportunity to participate in TCEQ's treatment of the Tier 2 

anti-degradation requirements. 

TCEQ has adopted a similarly broad interpretation of its de minimis exemption when considering applications to 

authorize industrial wastewater discharges. For example, in and around 2009-2010, TCEQ considered an application by 

Oak Grove Management Company for an amendment to TPDES Permit No. WQ0001986 in order to allow an increase 

in the quantity of once-through cooling water at a lignite-fired power plant from an existing authorization of 1,470 MGD 

to a quantity of 1,610 MGD - an increase of 140 MGD.[FN19] Such an increase had the reasonable potential to 

increase the quantity of bioaccumulative contaminants into the receiving water body.[FN20] The receiving water body 

was a reservoir with little inflow or outflow not associated with the plant, so that there would be little opportunity for 

contaminants to leave this system. Even so, this permitting action was exempted from the Tier 2 alternatives review 

premised on a finding that it would result in a less-than de minimis lowering of water quality. The analysis provided by 

TCEQ's Executive Director in the performance of his technical review simply stated that, "A Tier 2 review has 

preliminarily determined that no significant degradation of water quality is expected [in the receiving reservoir and 

downstream waters]."[FN21] In direct testimony during a contested case hearing, TCEQ staff stated that de minimis for 

purposes of a Tier 2 review meant a less than noticeable decrease in water quality,[FN22] as TCEQ staff often state 

under questioning. But, neither she nor any other TCEQ staff person provided any analysis of how the 140 MGD 

increased discharge being authorized would result in a less-than noticeable lowering of water quality. TCEQ's final 

order in the matter simply stated that, "The impact of the authorized increase discharge of once-through cooling water 

under the revised draft permit is minimal." [FN23] An expert for the Applicant testified during the contested case hearing 

that the discharge would use less than 10% of the assimilative capacity of the receiving waters, but in doing so he 

offered no evaluation of baseline water quality concentrations, resulting water quality concentrations, the assimilative 

capacity of the receiving waters, or the amount of the assimilative capacity that would be used by the discharge. Even if 

such testimony during a contested case hearing was adequate to demonstrate the water quality impacts of a discharge 

to be de minimis, the TPDES program should be administered in a manner that allows the public to transparently 

consider TCEQ's Tier 2 evaluation during the comment period, and which allows the EPA to consider this analysis 

during its opportunity to comment on a draft permit. In the Oak Grove matter, the only information available during the 

comment period regarding TCEQ's determination that the impacts of the 140 MGD increase would be de minimis were 

conclusory statements to that effect by the Executive Director's staff, with no supporting analysis. 

Consideration of Cumulative Impacts and Determination of Baseline Water Quality 

By guidance, EPA has made clear that the Tier 2 anti-degradation review should address the cumulative impacts of 

regulatory actions impacting a water body, and not solely the impact of the particular action at issue.[FN24] 

Commenters are concerned that this requirement can be easily contravened. For example, while TCEQ's rules provide 

that the highest water quality sustained in a water body since November 28, 1975 defines baseline conditions for 

purposes of degradation, TCEQ staff have repeatedly made clear that insofar as they perform an antidegradation 

analysis, they look to existing conditions and make no effort to investigate whether the receiving water body previously 

sustained a higher water quality. Any provision establishing a minimum standard for the determination of significance 

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should be clear that the relevant change is the cumulative lowering of water quality as the result of all past and present 

regulatory actions impacting a water body, and not merely the impact of the particular regulatory action at issue. 

Conclusion and Recommended Modification to Proposed Rules 

These comments focus on problems with the implementation of the Tier 2 anti-degradation policy within the State of 

Texas. Even so, thorny issues regarding the role of a significance threshold in the performance of a Tier 2 review have 

arisen with regard to the administration of the NPDES program in a number of states. In order to ensure the effective 

implementation of the Tier 2 anti-degradation policy, to avoid the need to address the issue on an ad hoc basis in each 

state, and to create transparency in the process, EPA should adopt by rule standards for what regulatory actions may 

be exempted from the alternatives analysis of a Tier 2 review as "insignificant." Representatives of the Environmental 

Community in Texas have previously raised the concerns set forth in this letter with EPA staff and through formal 

comments on EPA's review of TCEQ's water quality standards. In general, EPA has responded to these concerns by 

indicating that such concerns would be addressed by the current rulemaking. Commenters appreciate EPA's efforts to 

clarify its rules regarding WQS, but as discussed herein feel that additional specificity is needed. 

By guidance, and within the context of the Water Quality Guidance for the Great Lakes, EPA has stated that a 

significance threshold of 10% of the available assimilative capacity, coupled with a cumulative cap, represents "a 

reasonable balance between the need of the regulatory agencies to limit the number of actions involving nonbioaccumulative chemicals of concern that are subjected to the detailed anti-degradation demonstration requirements, 

and the need to protect and maintain water quality." [FN25] While this approach may not be perfect, Commenters feel 

that it would constitute a good place to start to incorporate such threshold as the maximum threshold allowable for a 

determination of whether a regulatory action will cause a significant, or greater-than de minimis, change in water quality. 

Without such specificity, Commenters are concerned that Texas and other states may continue to avoid application of 

the Tier 2 alternatives analysis by simply considering all, or virtually all, of its regulatory actions to cause a lowering of 

water quality that does not constitute "degradation." 

TCEQ's non-implementation of the Tier 2 anti-degradation review already violates EPA's existing rules on this issue. 

Clarifying EPA's rules to establish more certainty in the necessary elements for a "significance" threshold would aid in 

correcting this deficiency in the TPDES program. 

[FN3] 30 TAC § 307.5(b)(2). 

[FN4] 65 Fed. Reg. 51164, Sep. 24, 1998 (Environmental Protection Agency: State Program Requirements; Approval of 

Application to Administer the National Pollutant Discharge Elimination System (NPDES) Program; Texas). 

[FN5] Application for a New Permit by City of Waco, City of Woodway, City of Bellmead, City of Lacy-Lakeview, City of 

Robison, City of Hewitt, and City of Lorena for Wastewater Permit No. WQ0014889-001, Issued January 6, 2010. 

TCEQ had found that Bullhide Creek was a high-quality water body, noting that it had been identified as having high 

aquatic life uses. 

[FN6] Exhibit APP-23 at p. 3 and Exhibit APP-27 at p. 3, in the Matter of the Application of Cities of Bellmead, Lacy 

Lakeview, Robison, Hewitt, and Lorena for Wastewater Permit No. WQ0014889-001, SOAH Docket No. 582-09-1149, 

TCEQ Docket No. 2008-1742-MWD. (Attachments A and B to these comments). 

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[FN7] The applicable Tier 1 water quality criteria for the protection of High Aquatic Life Uses in the receiving water body 

was 5.0 mg/L as a 24-hour mean. 30 TAC § 307.4(h)(2), 307.7(b)(3)(A)(i). As a matter of standard modeling practice, 

TCEQ has adopted the position that any modeling result at or above 4.80 mg/L is adequate to show compliance with a 

5.0 mg/L Tier 1 standard. TCEQ has asserted that EPA is aware of this policy and has no objection to it. Testimony of 

Karen Holligan, staff water quality modeler for TCEQ, Transcript of June 26, 2006 Hearing on the Merits in the Matter of 

the Application of Far Hills Utility District for TPDES Permit No. 14555-001, p. 33, line 19 - Page 34, line 19. 

(Attachment C to these comments) 

[FN8] See Pre-Filed Testimony of Dr. James Miertschin, P.E., p. 56-57, Exh. APP-11 in the Matter of the Application of 

the City of Bellmead, et al for TPDES Permit No. WQ0014889-001. 

[FN9] Texas Commission on Environmental Quality, Procedures to Implement the Texas Surface Water Quality 

Standards, RG-194, (2003) p. 34, stating that degradation becomes likely if increased loading of oxygen-demanding 

substances are "projected to decrease dissolved oxygen by more than 0.5 mg/L for a substantial distance in a water 

body that has exceptional quality aquatic life and a relatively unique and potentially sensitive community of aquatic 

organisms." 

[FN10] See Testimony of Karen Holligan, cited above. The Far Hills Application was ultimately denied by the 

Commission based on the applicant's proposal to locate wastewater treatment units within a wetland in violation of 

TCEQ rules, so as a technical matter the Commissioners of the TCEQ were not called upon to directly address the antidegradation issue. 

[FN11] See March 4, 2009 Proposal For Decision in The Matter of the Application of Lerin Hills, Ltd. for TPDES Permit 

No. WQ0014712001, SOAH Docket No. 582-08-0690, TCEQ Docket No. 2007-1178-MWD. The Lerin Hills matter is 

currently the subject of litigation pending before the Corpus Christi Court of Appeals, Rick Wood v. Texas Commission 

on Environmental Quality and Lerin Hills Municipal Utility District, Docket No. 13-13-00189-CV. TCEQ's application of 

the de minimis exemption to the Tier 2 review is a live issue in that judicial appeal due to its unreasonable interpretation 

of the term in that case. 

[FN12] Id. 

[FN13] Tex. Comm'n on Environmental Quality, Application of Lerin Hills, Ltd. for TPDES Permit No. WQ0014712001, 

SOAH Docket No. 582-08-0690, TCEQ Docket No. 2007-1178-MWD, July 7, 2009 (Final Order Issuing 

Permit)(Attachment D to these comments). 

[FN14] Rick Wood v. Texas Commission on Environmental Quality and Lerin Hills Municipal Utility District, Docket No. 

13-13-00189-CV. 

[FN15] August 10, 2005 Memorandum re: Tier 2 Anti-degradation Reviews and Significance Thresholds, From Ephram 

S. King, Director Office of Science and Technology, To Water Management Division Directors, Regions 1 - 10. 

[FN16] Kentucky Waterways Alliance, et al., v. Johnson, et al., 540 F.3d 466, 483 (6th Cir. 2008). 

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[FN17] Texas Commission on Environmental Quality, Procedures to Implement the Texas Surface Water Quality 

Standards, RG-194, (2003) pp. 30-35. 

[FN18] July 7, 2009 Final Order of TCEQ, at p. 13, in the Matter of the Application of Lerin Hills, Ltd. for TPDES Permit 

No. WQ0014712001, SOAH Docket No. 582-08-0690, TCEQ Docket No. 2007-1178-MWD (Attachment D to these 

comments). 

[FN19] June 8, 2010 Proposal For Decision, In Re: Application of Oak Grove Management Company for TPDES Permit 

No. WQ0001986000, SOAH Docket No. 582-09-3322; TCEQ Docket No. 2009-0398-IWD. This case is currently 

pending in litigation before the Austin Court of Appeals, Robertson County: Our Land, Our Lives and Roy Henrichson v. 

Texas Commission on Environmental Quality and Oak Grove Management Company, Docket No. 03-12-00801-CV. 

TCEQ's application of the de minimis exemption to the Tier 2 review is a live issue in that judicial appeal due to its 

unreasonable interpretation of the term in that case. 

[FN20] See United States Environmental Protection Agency, Steam Electric Power Generating Point Source Category: 

Final Detailed Study Report, EPA 821-R-09-008 (2009), p. 3-19 ("Once-through cooling water and cooling tower 

blowdown may contain the following pollutants, often in low concentrations, as a result of chlorination and corrosion and 

erosion of the piping, condenser, and cooling tower materials: chlorine, copper, nickel, aluminum, boron, chlorinated 

organic compounds, suspended solids, brominated compounds, and nonoxidizing biocides. Although the pollutants 

present in cooling tower-related wastewaters are often at low concentrations, the overall pollutant mass discharge may 

be significant due to the large flow rates of cooling water discharges at steam electric power plants."). 

[FN21] January 22, 2009 Interoffice Memorandum, from Lili Murphy, Water Quality Standards Team, to Industrial 

Permits Team, re: Oak Grove Management Company LLC Permit No. 01986.000 Amendment. Exhibit LM-7 in the 

matter of the Application of Oak Grove Management L.L.P. for TPDES Permit No. WQ0001986000, TCEQ Docket No. 

2009-0398-IWD, SOAH Docket No. 582-09-3322. 

[FN22] Exhibit LM-1 (Testimony of Lili Murphy, Aquatic Scientist III for TCEQ), p. 5, In Re: Application of Oak Grove 

Management Company for TPDES Permit No. WQ0001986000, SOAH Docket No. 582-09-3322; TCEQ Docket No. 

2009-0398-IWD 

[FN23] August 24, 2010 Final Order of TCEQ Re: Application of Oak Grove Management Company for TPDES Permit 

No. WQ0001986000, TCEQ Docket No. 2009-0398-IWD, p. 21. 

[FN24] See, e.g., August 10, 2005 Memorandum re: Tier 2 Antidegradation Reviews and Significance Thresholds, From 

Ephram S. King, Director Office of Science and Technology, To Water Management Division Directors, Regions 1 - 10, 

p. 3. 

[FN25] August 10,2005 Memorandum re: Tier 2 Antidegradation Reviews and Significance Thresholds, From Ephram 

S. King, Director Office of Science and Technology, To Water Management Division Directors, Regions 1- 10, p. 2. 

Response 

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For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0244-A2.001.018 

Author Name: Loomis Marion 

Organization: Wyoming Mining Association 

Regarding de minimis exemptions, EPA should affirm that nothing in its proposal will affect existing State exceptions 

and de minimis thresholds. EPA must not prevent States from incorporating such provisions into their State programs. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0248-A2.001.015 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

Fourth, the EPA proposals do not address a de minimis exception to anti-degradation requirements. Since certain water 

bodies can assimilate additional levels of certain "pollutants" without impacting their designated use or water quality, 

there must be a de minimis or "non-impactful" exception to anti-degradation requirements, absent which over-regulation 

without corresponding benefit will result. If EPA concludes that revising the regulations governing anti-degradation 

requirements is necessary, EPA should add a de minimis or non-impactful exception to the anti-degradation rules. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0249-A2.001.011 

Author Name: Calamita F. Paul 

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Organization: General Counsel on behalf of The Wet Weather Partnership et al. 

Finally as to Tier designations, we are aware of concerns expressed by others about de minimis exceptions to Tier 2 

review that many (if not all) of the states have established to tailor their decisions and focus on real and legitimate water 

quality concerns. Such exceptions are entirely appropriate and within the states' exclusive authority under CWA section 

303. These exceptions have proven to be highly effective in allowing the states to focus their resources properly, and to 

avoid permit requirements that are of no practical positive effect. In the context of Publicly Owned Treatment Works, for 

example, small changes in instream dissolved oxygen concentrations or in naturally occurring metals concentrations 

represent variations in water quality data, but not true decreases in water quality. 

Accordingly we urge EPA to not consider any new restriction on such administratively efficient de minimis 

antidegradation provisions. In fact, we urge EPA to take this opportunity to reaffirm its support for such de minimis 

approaches. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0252-A2.001.030 

Author Name: Fry Eric 

Organization: Peabody Energy 

Regarding de minimis exemptions, EPA should affirm that nothing in its proposal will affect existing State exceptions 

and de minimis thresholds. EPA must not prevent States from incorporating such provisions into their State programs. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0257-A1.001.013 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

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6. De Minimis Exemptions 

A major concern with respect to the alternative analysis and antidegradation standards that are proposed relates to the 

fact that EPA has not provided for de minimis exemptions from antidegradation review for projects that only consume a 

small insignificant increment of assimilative capacity of a waterbody. The Kentucky Waterways Alliance case makes 

clear that de minimis exceptions are allowable under the existing regulations, even without express authorization. Since 

EPA antidegradation policy has no guiding standards in the CWA, nothing prevents EPA from expressly authorizing 

reasonable project specific and cumulative consumption exceptions to antidegradation review to minimize the impact 

and burden of strict antidegradation reviews on states and industry for projects that will result in insignificant changes to 

water quality. 

Without express de minimis exceptions, an alternative analysis and antidegradation review could force costly changes 

or preclude a project from going forward even where the increase in pollutant concentrations in the receiving water 

changes by a tiny fraction of the remaining assimilative capacity. EPA should include provisions in 40 CFR 131.12 to 

recognize the concept of insignificant degradation as was the policy in 1987 when Congress referenced antidegradation 

policy in Section 303(d)(4) of the Clean Water Act. Requiring states to only tie de minimis exemptions to cumulative 

changes in water quality is unworkable, especially on larger streams and rivers where changes in pollutant loadings 

from all point and nonpoint sources within the watershed are not necessarily within the jurisdiction of the agency. 

Accordingly, if EPA adopts antidegradation methodologies and standards that could effectively preclude any change in 

water quality on the basis that the least degrading "practicable" alternative must be selected by a state, it should 

expressly authorize states to adopt de minimis criteria for individual projects and cumulative consumption to prevent 

unduly harsh determinations that inhibit economic growth. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0266-A2.001.004 

Author Name: Reese Thomas 

Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 

3. WQSs must require the establishment of antidegradation assimilative capacity of Tier 2 and Tier 2.5 waters for 

recreational and aquatic uses 

The FWF and the Davises request EPA amend Section 131.12(b) to require the antidegradation implementation 

methods adopted by rule by states and tribes include the establishment of the baseline antidegradation assimilative 

capacity of Tier 2 and Tier 2.5 waters for recreational and aquatic life uses. See, Kentucky Waterway Alliance, 540 F.3d 

466, at 484- 85 (6th Cir. 2008); King Memo. Both recreational uses and aquatic life uses must be assessed and 

evaluated by states and tribes when establishing the baseline assimilative capacity of water bodies. The CWA does not 

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authorize exclusion of consideration of aquatic life uses in antidegradation assessments and evaluations. 

Establishment of baseline assimilative capacity is necessary to define a significance threshold (significance test) in 

terms of assimilative capacity, and to provide for, encourage, and assist public participation in the development, 

revision, and enforcement of the CWA antidegradation policy. See, 33 U.S.C. Section 1251(e); Kentucky Waterway 

Alliance, 540 F.3d 466 (6th Cir. 2008). 

EPA's Office of Science and Technology (OST) has strongly recommended that new or revised submissions of 

antidegradation implementation procedures to EPA define "significant" lowering of water quality in terms of baseline 

assimilative capacity. See, EPA's 1998 ANPRM, pg. 36783; King Memo). 

4. WQSs must establish a cap on the cumulative degradation of the baseline assimilative capacity of Tier 2 and Tier 2.5 

waters 

The FWF and the Davises request EPA amend Section 131.12(b) to require the antidegradation implementation 

methods adopted by rule by states and tribes establish a cap on the cumulative degradation of the baseline assimilative 

capacity of Tier 2 and Tier 2.5 waters in order to avoid case by case antidegradation implementation review which does 

not accurately consider the cumulative impact of antidegradation implementation decisions. See, EPA's 1998ANPRM, 

pg. 36783; King Memo; Kentucky Waterway Alliance, 540 F.3d 466 (6th Cir. 2008). 

Without a cap on the cumulative degradation of the assimilative capacity baseline, often the total assimilative capacity 

would be lost without full review of all cost-effective and reasonable best management practice and whether the 

necessity of the degradation of assimilative capacity exists. Caps on the cumulative degradation of assimilative capacity 

baselines is a backstop on repeated or multiple degradations without a single antidegradation Tier 2 review. (King 

Memo). 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section B 

Comment ID 0266-A2.001.013 

Author Name: Reese Thomas 

Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 

3. The FWF and the Davises request EPA amend 40 CFR Section 131.12(b) to require states and tribes adopt WQSs 

that require the establishment of the antidegradation baseline assimilative capacities of Tier 2 and Tier 2.5 waters. See, 

Kentucky Waterway Alliance, 540 F.3d 466, at 484-85 (6th Cir. 2008); King Memo. 

4. The FWF and the Davises request EPA amend 40 C.F.R Section 131.12(b) to require states and tribes to adopt 

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WQSs that establish a cumulative cap of the cumulative degradation of the baseline assimilative capacity of Tier 2 and 

Tier 2.5 waters. See, Kentucky Waterway Alliance, 540 F.3d 466, at 484-85 (6th Cir. 2008); King Memo. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0278-A2.001.017 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

In addition, EPA's proposal calls into question, and seems to reject, state authority to establish de minimis thresholds 

and other legitimate exemptions from antidegradation Tier 2 review, which have proven to be highly effective in 

enabling states to focus their resources on projects with the greatest potential to adversely impact water quality. These 

state-based "tailoring" decisions are critical to the administration of functioning - and functional - antidegradation 

programs, and we urge EPA not to undermine them by superimposing new federal requirements. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0279-A2.001.004 

Author Name: Coyne Kevin 

Organization: West Virginia Department of Environmental Protection 

That being said, we believe any further additions or requirements beyond what has been included in the proposal will 

create significant issues for not only for West Virginia but also for many other states that have already gone through the 

development and adoption of antidegradation policies and procedures. This includes any further changes to the current 

interpretation of "de-minimis" provisions currently being used in state NPDES permitting procedures. As stated in the 

March 29, 2004 EPA approval letter, the "de-minimis" provision "...provides a means for States to differentiate between 

actions that will result in an increased loading of a pollutant to receiving water that is likely to have a significant impact 

on water quality and those that are unlikely to do so and focus review efforts on actions that will degrade water 

quality..." and this provision is a key component in the state NPDES process. The proposal should clarify that an 

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alternatives analysis is only required when the states EPA approved "de-minimis" threshold has been exceeded and 

constitutes a significant impact to water quality. DEP strongly urges EPA to consider not adding any further 

requirements than what has been included in the proposal, and take into consideration the ACWA comments and 

suggested language changes as it finalizes the antidegradation portion of the proposal. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

Comment ID 0280-A2.001.012 

Author Name: Aspatore Amanda 

Organization: National Mining Association 

De Minimus Exemptions 

EPA should affirm that nothing in its proposal will impact existing state exceptions and de minimus thresholds 

concerning antidegradation implementation, and that EPA will not impede states from incorporating such provisions into 

their programs in a manner deemed appropriate by the states. 

Response 

For response to this comment, see the following response essay(s): 

7.i 

7.i: Section A 

7.J - ANTIDEG - TIER 3/ONRWS 

Comment ID 0199-A1.001.010 

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center, Alabama Rivers Alliance, and North Carolina Conservation Network 

We would also like to see EPA WQS regulation revisions that would encourage more frequent use of Tier 3 

designations for outstanding national resource waters ("ONRWs"). 

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Response 

For response to this comment, see the following response essay(s): 

7.j 

7.K - ANTIDEG - GLI PROVISIONS 

Comment ID 0196-A1.001.010 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

While EPA references the analysis required for the Great Lakes in Appendix E of 40 C.F.R. Part 132, that provision is 

not applicable to dischargers outside of the Great Lakes, and at any rate the analysis that EPA envisions in this section 

goes beyond the scope of alternatives within the control of a discharger. 

Response 

For response to this comment, see the following response essay(s): 

7.k 

7.k: Section A 

7.k: Section B 

Comment ID 0236-A2.001.016 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

Recommended changes: 

• WDNR requests that EPA consider promulgating the requirements in 40 CFR part 132 and "Water Quality Guidance 

for the Great Lakes System" in 131.12 to provide consistent antidegradation decisions and implementation procedures 

nationwide, both within and outside of the Great Lakes Basin. 

Response 

For response to this comment, see the following response essay(s): 

7.k 

7.k: Section C 

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7.L - ANTIDEG - OTHER GENERAL 

Comment ID 0123-A1.001.015 

Author Name: Chin Ryan 

Organization: NA 

I also suggest that when a water body has been classified as a Tier 2 Water and is afforded the higher protection under 

the proposed rule, that the protection should be further required that no degradation should be allowed in any of the use 

categories of the water body (unless it passes the Tier 2 Review that lowering water quality is necessary to accomplish 

the proposed activity (after considering practicable alternatives under this proposed rule) and the proposed activity must 

accommodate important economic or social development). Taking the example of Water Body B outlined by the EPA in 

the proposed rule, if Water Body B has aquatic life and recreational designated uses, and exceeds the requirements set 

forth in the specified uses for those outlined uses, but does not exceed the requirements for propagation of aquatic life 

due to the presence of methylmercury, my suggestion is that degradation would not be allowed (unless as again, it 

satisfies Tier 2 Review) even for the use that does not exceed the requirements for specified use (in this example, the 

propagation of aquatic life). I believe my suggestion would be an important in preserving the integrity of the water body 

and keep its designation as a High Quality Water, because allowing for degradation in one use that does not exceed 

may inadvertently affect the uses that the water body has exceeded to allow its designation as a High Quality Water, 

and therefore the water body, once designated as a High Quality Water and therefore a Tier 2 Water, should be 

afforded the Tier 2 protection regardless of what use would be degraded. Especially given that many of the act's 

sections and words have been given broad meaning and discretion (See United States v. Riverside Bayview Homes, 

Inc., 474 U.S. 121, 1985; Justice Stevens' dissent in SWANCC v. United States Army Corps of Engineers, 531 U.S. 

159, 2001), the CWA's intent and objective should not allow for these limited and unique waters that are High Quality 

Waters any form of degradation, regardless of which use exceeds or does not exceeds the specified requirements, 

unless the Tier 2 Review process is satisfied. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section G 

Comment ID 0124-A1.001.002 

Author Name: Davis K. 

Organization: NA 

Specifically, this comment is intended to address the proposed amendments to Antidegradation Implementation 

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contained in 40 CFR § 131.12. With regard to these proposed amendments, the issue EPA has identified as requiring 

redress is that "[h]igh quality waters are not being adequately maintained and protected." [FN1] Although I essentially 

agree with this assessment and realize the paramount importance of limiting the degradation of such high quality waters 

as a preventative measure, my comment is intended to note that a more holistic approach - one which employs less 

separation, categorization, and determination of quality with regard to individual water bodies - would produce results 

wherein all bodies of water would be more adequately maintained and protected. EPA's narrow framing of this issue, a 

framing which will ultimately determine the nature and strength of EPA's future Water Quality Standards regulations, is 

flawed because it limits the potential aggregate benefit of any regulatory effort aimed at maintenance or improvement of 

overall water quality. 

To view bodies of water - lakes, streams, tributaries, wetlands - as separate and distinct from one another is, as EPA is 

well aware, largely inaccurate. The holdings in both SWANCC [FN2] and Rapanos [FN3] are indicative of the Supreme 

Court's apparent failure to realize that although two or more bodies of water may appear geographically isolated, many 

if not all of them are nonetheless part of the same subtly interconnected network and should thus "be regarded as 

components of integrated hydrological and ecological systems." [FN4] Although SWANCC and Rapanos significantly 

confined the jurisdictional scope of the Clean Water Act, [FN5] it still merits comment here that an isolationist system of 

water body classification may result in improvements that are limited both geographically and temporally; regulations 

limiting degradation with regard to individual bodies of water determined to be "high quality" may have a positive impact 

on those specific bodies of water in the immediate present, but are unlikely to accomplish very much in the way of longterm comprehensive water quality improvement. If a body of water identified as "high quality" shares relatively close 

hydrological connections with substantially more degraded bodies of water, one could logically conclude that to improve 

the quality of the degraded bodies of water would, by extension, enhance the quality of the body of water deemed more 

pristine. In all likelihood, however, focusing antidegradation efforts primarily on the very highest quality bodies of water 

would not yield an equally positive impact on overall water quality. 

Additionally, the abundance of nonpoint source pollution contained within our nation's water systems raises a related 

issue. Historically, the primary target of water quality regulation appears to have been point source pollution, namely, 

municipal and industrial discharge of pollutants. [FN6] Hence, point source pollution is an issue that could perhaps be 

dealt with somewhat effectively using a more individualized approach. However, "nonpoint source pollution has evolved 

into the largest single source of water quality impairment in the country." [FN7] Furthermore, one of the primary 

nonpoint sources of water pollution is atmospheric deposition of pollutants like mercury and nitrogen; water quality data 

released by EPA in 2010 identified atmospheric deposition as being among the top sources of water quality impairment. 

[FN8] This means that direct dumping is not the only source of industrial water degradation and, in fact, is not even the 

primary source. That water pollution by atmospheric deposition is such a significant and widespread environmental 

concern is further evidence of the interconnectedness of the hydrological system at large, and evidence of a need to 

broaden the scope of water quality improvement efforts. 

An abundance of scientific research on this topic unequivocally demonstrates the existence as well as the significance 

of a profound link between ostensibly disconnected water bodies, and the findings of one such study emphasize the 

concept that "[h]ydrological connectivity is implicit in the global water cycle, in which the hydrosphere is seen as a single 

hydrological system comprised of hydrologically connected components." [FN9] When these conclusions are viewed 

from a policy standpoint, the research plainly supports the notion that ameliorative efforts, regulatory or otherwise, 

should shift focus from individual bodies of water to the water system-at-large and should endeavor to take into account 

the sources, causes, and effects of water pollution in a much broader context. 

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A disturbing degree of disconnect persists between the attention government pays to environmental issues and the 

scientific research that should ideally be guiding any such prioritization, as further evidenced by the Supreme Court's 

Rapanos ruling. [FN10] The plurality opinion of the Court was the genesis of crippling precedent: namely, that the 

definition of "navigable waters" excludes watersheds with only "intermittent or ephemeral flows," and that Clean Water 

Act coverage requires a demonstrated "continuous surface connection to bodies that are waters of the United States." 

[FN11] At minimum, this decision is profoundly demonstrative of the Supreme Court's lack of understanding with regard 

to the key principles of hydrological connectivity, but it is more likely symptomatic of a larger issue. This decision 

obviously binds EPA, and to some degree undermines the agency's regulatory authority in terms of implementing any 

genuine and comprehensive solutions geared toward aggregate water quality improvement. [FN12] As EPA is 

concretely aware, reviewing courts are often called upon to examine agency decisionmaking. However, since "[j]udges 

are not ... expert enough in even a fraction of [regulatory] areas to review agency decisions from the ground up," [FN13] 

I ask EPA to frequently and actively urge Congress to enact legislation to restore and clarify CWA jurisdiction and, by 

extension, EPA's ability to successfully regulate overall water pollution. 

In sum, I reaffirm my support for the proposed amendments to the current Water Quality Standards regulations on the 

assumption that the EPA Administrator's chosen course of action is the best regulatory measure currently available to 

the agency in light of all surrounding circumstances. I am aware of EPA's recently released draft report on hydrological 

connectivity, and I applaud EPA for its effort to collect and synthesize the relevant research. If the report is used in 

promulgating future CWA regulations, I urge EPA to approach any such regulatory opportunities holistically, given the 

evidence demonstrating the global connectivity of the hydrological system as a whole. My hope is that, in moving 

forward, EPA will endeavor to narrow the pervasive gap between scientific research and government decisionmaking, 

to use the authority delegated to it by the Clean Water Act to focus on more holistic regulatory approaches, and to 

continue to avail itself of scientific research in exploring of an array of potential remedies for the multitude of 

environmental harms arising from the pollution of our waters. 

[FN1] Water Quality Standards Regulatory Clarifications; Proposed Rule, 78 Fed. Reg. 54517, 54518 (Sept. 4, 2013) 

(proposing to amend 40 C.F.R. pt. 131); see also U.S. Environmental Protection Agency, Summary of Water Quality 

Standards Regulatory Clarifications Proposed Rule, EPA 820-F-13-026, August 2013, 

http://water.epa.gov/scitech/swguidance/upload/Trifold-Summary-of-Proposed-Rule.pdf 

[FN2] Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001). 

[FN3] Rapanos v. United States, 547 U.S. 715 (2006). 

[FN4] Scott G. Leibowitz, et al., Non-navigable streams and adjacent wetlands: addressing science needs following the 

Supreme Court's Rapanos decision, 6 Frontiers in Ecology and the Environment 364, 365-66 (2008). 

[FN5] William L. Andreen, Success and Backlash: The Remarkable (Continuing) Story of the Clean Water Act, 4 

George Washington Journal of Energy & Envtl. Law 25, 27 (Winter 2013). 

[FN6] See id. at 30. 

[FN7] See id. at 27 (citing to Linda A. Malone, The Myths and Truths that Ended the 2000 TMDL Program, 20 Pace 

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Envtl. L. Rev. 63, 76 (2002).). 

[FN8] See id. at 27, 30. 

[FN9] Tracie-Lynn Nadeau & Mark Cable Rains, Hydrological Connectivity Between Headwater Streams and 

Downstream Waters: How Science Can Inform Policy, 43 Journal of the American Water Resources Association 118, 

122 (2007). 

[FN10] Conversations with several scientists in researching the substantive portion of this comment revealed a common 

theme: a large number of nongovernment scientists are averse to any kind of involvement in policymaking due to 

concerns about the public's perception of their objectivity. When independent scientists fail to opine, however, the 

problem then becomes the public's notion that the data is unreliable, or that there exists insufficient evidence to support 

the scientific claims upon which policy decisions are based. Case in point: Rep. Lamar Smith (R-Texas) said of the 

proposed WQS amendments, "Any rule that could give EPA the authority to tell us what to do in our own backyards 

needs to be supported by sound science." (Kelley Vlahos, EPA power grab? Pols, states claim new water reg could 

bring feds into your backyard, (November 24, 2013), http://www.foxnews.com/politics/2013/11/24/epa-power-grab-polsstatesclaim- new-reg-could-bring-feds-into-your-backyard/.) The core issue is not unsound science, but rather, an 

inadequately informed populace. 

[FN11] See 547 U.S. at 715 (2006). 

[FN12] To further illustrate this point, EPA is quoted in the previously mentioned FoxNews.com article as stating that 

"[this] proposed rule would not ... protect any new waters that have not historically been covered under the Clean Water 

Act. In fact, the proposed rule specifically takes into account the more narrow reading of [CWA] jurisdiction established 

by the Supreme Court." (Vlahos, supra.) 

[FN13] Gary Lawson, Scope of Review of Agency Action, 6 Federal Administrative Law 457, 753 (West 2013). 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section A 

Comment ID 0133-A2.001.008 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

b. The preamble states that antidegradation implementation methods are expected to include [in order to be consistent 

with the CWA]requirements for point and nonpoint sources: the state or tribe will ensure that there shall be achieved the 

highest statutory and regulatory requirements ...for cost-effective and reasonable best management practices for 

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nonpoint source control when allowing a lowering of water quality. This requirement contradicts specific regulatory 

exemptions allowed for certain nonpoint sources, such as agricultural storm water and industrial storm water from oil 

and gas operations. As such, states lack the legal authority to fully implement the nonpoint source component required 

by the proposed rule. EPA must clarify that nonpoint source controls be implemented, where feasible, and where the 

state may exert regulatory authority over such discharges. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section D 

Comment ID 0133-A2.001.013 

Author Name: Phillips Sanford 

Organization: Louisiana Department of Environmental Quality 

h. LDEQ does not support the option of utilizing the Integrated Report as a method of identifying Tier 2 water bodies. 

i. This method is based on a limited data set and will not result in long-term protection for water bodies that consistently 

exhibit higher water quality. In coastal states, water quality in the tidally influenced zones is subject to change with 

drought conditions, coastal restoration projects, diversion projects, etc. For example, a water body that that typically 

supports all designated uses may be listed as impaired on the 303(d) list once due to a period of drought-caused 

saltwater intrusion, and then subsequently removed after rainfall returns to normal. During the two-year period in which 

the water body is listed as impaired, the water body would lose Tier 2 protection. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section E 

Comment ID 0134-A1.001.016 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

• Impairment - EPA should clarify that a water body is impaired only if it fails to meet a water quality standard, not if a 

state has failed to perform an anti-degradation review. 

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Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section E 

Comment ID 0145-A2.001.016 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

• Impairment - EPA should clarify that a water body is impaired only if it fails to meet a water quality standard, not if a 

state has failed to perform an anti-degradation review. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section E 

Comment ID 0149-A2.001.009 

Author Name: Michael Gene 

Organization: City of Pueblo Wastewater Department 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

3. Non-point source controls. 

EPA's proposal includes two instances that would impose a new requirement for review of best management practices 

for nonpoint source controls. First, EPA proposes to amend Section 131.12 to require the state's antidegradation 

implementation to ensure that "all cost-effective and reasonable best management practices for nonpoint source 

control" will be achieved. Second, EPA proposes in Section 131.14 that adoption of waterbody variances require 

identification and documentation of best management practices for nonpoint source control. Further, EPA proposes to 

require documentation of the implementation of BMPs to renew a waterbody variance. 

EPA is well aware that the Clean Water Act does not include any provision to require or enforce best management 

practices for nonpoint source controls. EPA's proposal could be misinterpreted to impose such a requirement. 

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Therefore, EPA should modify its proposal as follows: 

§ 131.12 Antidegradation Policy and Implementation Methods. 

• • • 

(a)(2) . . . Further, the state shall ensure that there shall be achieved the highest statutory and regulatory requirements 

for all new and existing point sources [begin new text] . [end new text] [begin strikeout] and all cost effective and 

reasonable best management practices for nonpoint source control. [end strikeout]

 § 131.14 Water quality standards variances.

 • • •

 Strike out all of 131.14(b)(3). 

(d) WQS variance renewals: EPA may approve a WQS variance renewal if the State meets the requirements of this 

section and provides documentation of the actions taken to meet the requirements of the previous WQS variance. 

[begin strikeout] For a waterbody WQS variance renewal, the state must also provide documentation of whether and to 

what extent BMPs have been implemented to address the pollutant(s) subject to the WQS variance and the water 

quality progress achieved during the WQS variance period.[end strikeout] Renewal of a WQS variance may be 

disapproved if the applicant did not comply with the conditions of the original WQS variance, or otherwise does not 

meet the requirements of this section. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section D 

8.g.v 

Comment ID 0153-A2.001.007 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

IV. Antideqradation Implementation. 

A. General preamble language regarding antidegradation. 

The preamble language related to antidegradation implementation states that antidegradation policies are an integral 

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part of WQS, that antidegradation is an underutilized component of WQS, and that maintenance of high quality (Tier 2) 

waters has never been more important. (78 Fed. Reg. 54526.) California has the ever growing need to provide for an 

ongoing safe and reliable water supply for our population in this era of climate change. Climatic factors make 

assimilative capacity of high quality waters an even more important state resource to protect. It may be appropriate to 

include climate change impacts in the preamble discussion on antidegradation implementation. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section A 

Comment ID 0153-A2.001.009 

Author Name: Bishop Jonathan 

Organization: California State Water Resources Control Board 

C. Clarify under what circumstances lowering high quality water is permissible. 

Current regulation provides that Tier 2 waters shall be maintained and protected unless a state finds that lowering water 

quality is "necessary to accommodate important economic or social development in the area in which the waters are 

located." (40 C.F.R. § 131.12(a)(2).) The State Water Board requests clarification of that language, as follows. 

With regard to the phrase "in the area", it has been argued that the social or economic development must be local, to 

the exclusion of regional or statewide. The State Water Board has concluded that the "in the area" language is intended 

to exclude allowance for degradation based on very narrow interests, such as the economic interest of the particular 

business involved, and not to exclude interests that are larger than local. It also has been argued that "economic or 

social development" does not include environmental protection. The State Water Board has rejected that argument, 

concluding that a reduction in one water quality parameter may be permitted as otherwise necessary to provide an 

overall benefit to water quality. For example, increases in flow for the overall benefit of the fishery may be permitted 

despite the inevitable increase in suspended sediment and turbidity. 

The State Water Board seeks clarification of these interpretations, either through a revision in the regulatory language 

or in the preamble accompanying the final rule. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section D 

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Comment ID 0157-A1.001.009 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

In sum, EPA's proposed high quality water antidegradation review methodology and standards represent 

unprecedented new requirements for states in reviewing NPDES projects for new or expanded discharges. It would 

create a huge burden on states and permittees seeking to obtain authorization for new projects. Indeed, under the full 

scope of EPA's antidegradation proposals, state permit writers would not need to consider other water quality-based or 

technology-based permitting programs since no one would be allowed to increase any pollutants to a stream unless 

they demonstrated they were applying the most stringent wastewater technology that could be paid for by the company 

and that no other project options were determined to be available that would decrease pollutant loading, including a 

reduced project scope or no project at all. Hopefully, this is not EPA's intent; but the preamble and proposed regulatory 

language could support such an absurd result. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section D 

Comment ID 0157-A1.001.010 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

Antidegradation Review for Highest Attainable Use 

Although it is not discussed in EPA's proposal, it would appear that where a highest attainable use is established for a 

waterbody pursuant to a use attainability analysis or a variance, a high quality antidegradation review analysis could be 

required thereafter for that newly established use for new or expanded discharges even though the waterbody is 

partially impaired for the full use. Assuming EPA proceeds with the proposal, EPA should clarify that high quality 

antidegradation review is not required in states that apply antidegradation review on a waterbody-by-waterbody basis 

with respect to a "highest attainable use" and the supporting criteria that are established after a UAA or variance. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section H 

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Chapter 2 - Comment Documents Antidegradation 

Comment ID 0160-A2.001.012 

Author Name: West Jeff 

Organization: Xcel Energy 

3. Non-point source controls. 

EPA's proposal includes two instances that would impose a new requirement for review of best management practices 

for nonpoint source controls. First, EPA proposes to amend Section 131.12 to require that the states' antidegradation 

implementation achieve "all cost-effective and reasonable best management practices for nonpoint source control." 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section D 

Comment ID 0160-A2.001.015 

Author Name: West Jeff 

Organization: Xcel Energy 

[This excerpt contains red-line/strike out text. Refer to the original document for recommended edits.] 

§ 131.12 Antidegradation Policy and Implementation Methods. 

... 

(a)(2) . . . Further, the state shall ensure that there shall be achieved the highest statutory and regulatory requirements 

for all new and existing point sources[begin new text].[end new text] [begin strikeout] and all-cost effective and 

reasonable best management practices for nonpoint source control. [end strikeout] 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section D 

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Comment ID 0165-A2.001.008 

Author Name: Gunderson Steven 

Organization: Colorado Department of Public Health and Environment 

7. Antidegradation Implementation - Purpose Statement 

EPA should take this opportunity to add a purpose statement that explains the goal of the antidegradation provisions at 

131.12. Such a statement would help set the context and strengthen the intent. Such a statement could be: 

The purpose of the antidegradation provisions is to ensure that the assimilative capacity of the nation's waters is 

allocated in a thoughtful, transparent manner, with decisions supported by a sound technical record. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section A 

Comment ID 0175-A1.001.016 

Author Name: Canton Steven
 

Organization: GEI Consultants on behalf of Wharf Resources (USA), Inc. and the International Copper Association, Ltd.
 

c. Where water quality standards are being met on high quality waters (Tiers 2 and 3), minor degradation should have 

little or no impact on the uses. Lower quality Tier 1 waters should not be subject to the highly restrictive and regimented 

antidegradation analysis prescribed by the proposed rule 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section D 

Comment ID 0183-A1.001.006 

Author Name: Rich Eric 

Organization: Navajo Nation Environmental Protection Agency 

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Antidegradation Implementation 

This amends several provisions of 40 CFR Part 131.12. These proposed revisions would provide flexibility in the 

options available for identifying high quality waters. In addition, the tribe/state must conduct an alternatives analysis to 

support its decision on whether to authorize limited degradation of high quality water and must develop implementation 

methods for its antidegradation policy. Finally, EPA is proposing to clarify its authority to review and approve/disapprove 

antidegradation policies and to specify that if a tribe/state adopts implementation methods as WQS, those methods 

must be consistent with 40 CFR 131.12 (the federal antidegradation policy requirements). 

NNEPA Water Quality/NPDES Program Comment: 

The Navajo Nation Surface Water Quality Standards Antidegradation Policy is in Section 201. The result of this rule will 

be to require the Water Quality/NPDES Program to develop implementation methods for the antidegradation policy. The 

Navajo Nation has not classified high quality waters (Tier 2 and above). If such a classification system is incorporated 

and limited degradation of those waters is allowed to occur, an alternatives analysis would be required. 

Does this rule require that states and tribes classify their waters in terms of quality (i.e. high quality waters, low quality 

waters, etc)? 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section I 

Comment ID 0184-A2.001.024 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

Comment 8: Non-Point Source Controls 

The proposed rule includes two instances that would impose a new requirement for review of best management 

practices for nonpoint source controls. First, EPA proposes to amend Section 131.12 to require the state's 

antidegradation implementation to ensure that "all cost-effective and reasonable best management practices for 

nonpoint source control" will be achieved. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

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7.l: Section D 

Comment ID 0186-A1.001.005 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

• A major omission in the proposed clarification of the antidegradation provisions is the rule's failure to allow states to 

promulgate a definition for "lowering of water quality" as the term is used as a Tier 2 trigger. Such a definition is 

essential for the final rule. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section C 

Comment ID 0186-A1.001.021 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

Antidegradation Implementation (Section III.E., 78 Fed. Reg. 54526-54531) 

A major omission in the proposed clarification of the antidegradation provisions is the rule's failure to allow states to 

promulgate a definition for "lowering of water quality" as the term is used as a Tier 2 trigger. 

The definition of what constitutes a "lowering of water quality" for the purposes of Tier 2 antidegradation is an essential 

component of state antidegradation policy. There has been much controversy in the past decade or so over how much 

"new" or "additional" amounts of any water quality constituent constitutes a "lowering" of water quality for Tier 2 

purposes. In general, environmental activists and other private stakeholders often argue that any additional quantity of a 

water quality constituent compared to the quantities discharged at the baseline year, even if it's only a molecule, trigger 

Tier 2 antidegradation review. This interpretation results in an administrative nightmare and long delays in permit 

actions for states, EPA, and point sources desiring to modify their NPDES permits. For example, if a publicly owned 

treatment works (POTW) must expand its treatment plant to accommodate additional sewage from new customers due 

to population growth in its service area, the resulting increased effluent flow will in virtually every case increase the 

discharge loading of the constituents in its effluent. Similarly, any increase in effluent flow by an industrial discharger, 

even if treatment is improved and all constituents concentrations remain the same as before the increase, will generate 

some increase in the mass loadings of constituent discharges. 

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States have addressed the question of how much additional discharge to a high quality surface water will trigger Tier 2 

antidegradation review by establishing de minimis constituent loading increases. EPA has indicated that states have 

discretion to establish such de minimis increases that do not result in a lowering of water quality (Memorandum to 

Water Management Division Directors, King, E.S., Director, Office of Science and Technology, Subject: Tier 2 

Antidegradation Reviews and Significance Thresholds, August 10,2005). EPA's interpretation that de minimis 

significance thresholds can be applied to Tier 2 antidegradation review has been upheld in Federal Courts (see Ohio 

Valley Environmental Coalition v. Horinko, 279 F.Supp.2d 732, 769, S.D.W.Va.2003 and Kentucky Waterways Alliance 

et. al., Plaintiffs v. Stephen L. Johnson, et. al., Defendants, No. 1:04CV-145-R, F.Supp.2d ----, 2006 WL 897077, 

W.D.Ky., March 31, 2006). State antidegradation policies also include exclusions from full Tier 2 review for selected 

specified activities, such as when an increase in pollutant loading is temporary and of limited duration. EPA has also 

generally agreed to these exclusions when they are properly documented as being consistent with antidegradation 

objectives of the CWA. 

Because the states' exercise of discretion on determining how much new or additional discharge of a constituent(s) 

constitutes a lowering of water quality that requires a full Tier 2 antidegradation analysis is still an issue for some 

parties, API believes that the proposed rule should include a provision that clarifies that states, subject to EPA approval, 

have discretion in defining actions that constitute a "lowering of water quality" in high-quality waters. These 

discretionary actions include defining de minimis constituent loading increases and other permitted activities that may 

affect water quality but that do not trigger a complete Tier 2 antidegradation evaluation (note that the screening of 

proposed permit actions for the de minimis loading increases is the first step in a Tier 2 review). Inclusion of specific 

language that authorizes states to define "lowering of water quality" in Tier 2 waters, subject to EPA review and 

comment, is consistent with EPA's current position on this issue, has been approved by several Federal Courts, and will 

relieve states and permittees of unnecessary administrative burdens and potential litigation. API strongly recommends 

that EPA add a provision to the language at 40 CFR 131.12 that clarifies that states may use de minimis significance 

thresholds and exclusions for specified activities (e.g., remediation activities that cause temporary lowering of water 

quality). 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section C 

7.i 

Comment ID 0186-A1.001.033 

Author Name: Claff Roger 

Organization: American Petroleum Institute 

Conclusions 

API believes that the proposed WQS clarification rule is overall, an appropriate clarification the existing interpretations 

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of the CWA requirements. However, there are certain proposed revisions and/or requests for comments on provisions 

not proposed that are problematic. The major problems with the proposed rule are: 

1. The absence of a provision that authorizes states to define what constitutes a "lowering of existing high water quality" 

for the purposes of implementing Tier 2 antidegradation policy. As the current situation stands, states that establish de 

minimis provisions in their WQS for application of Tier 2 antidegradation regularly receive legal challenges to these 

provisions because although EPA has always supported de minimis thresholds, there is no reference to them in Part 

131. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section C 

Comment ID 0194-A1.001.010 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

4. Antidegradation (40 CFR § 131.12) 

In support of its proposed revisions to the existing antidegradation rules, EPA states that the nation's waters face an 

increasing degree of stress from anthropogenic influences, rendering the protection of high quality waters more 

important than ever. Further, EPA claims that "[a]lthough the federal antidegradation regulation is intended to help 

states and tribes protect and maintain high quality waters, the number of waters that are identified as impaired 

continues to grow." 78 Fed. Reg. 54,518 at 54,526 (Sept. 4, 2013). The Chamber disagrees that these statements 

serve as a basis to revise the antidegradation portion of its regulations. 

First, although undoubtedly anthropogenic impacts change over time, and new impacts will continue to occur, it does 

not logically follow as a general proposition that impacts are greater now than in the past. Indeed, a review of water 

quality in our nation's rivers now versus three decades ago is enough to demonstrate the falsity of this premise. Since 

enactment of the Clean Water Act in 1972, water quality permits and regulations, including the implementation of state 

antidegradation policies, have resulted in marked improvements in water quality in our surface waters. New 

anthropogenic stressors will occur, but new and existing discharges are highly regulated to protect water quality. The 

fact that discharges do exist and that new industries and sources will occur in the future is not evidence of a failed or 

unadequate antidegradation regulation. 

Second, EPA's statement that states' § 303(d) lists of impaired waters are growing is most likely a reflection of 

increased and more widespread surface water monitoring by the states, and increasingly stringent water quality 

standards and § 303(d) listing protocols. Growing § 303(d) lists is not fairly attributable to a failure of state 

antidegradation policies. 

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Thus, the Chamber does not agree that a basis exists for revising the current antidegradation regulations. On the 

contrary, antidegradation has been an actively implemented and mandatory element of state water quality standards for 

many years. West Virginia's water quality standards rule, like other states, includes its antidegradation policy consistent 

with the federal requirements set forth in 40 CFR § 131.12. In addition, like other states, West Virginia has formally 

adopted an antidegradation implementation policy and actively implements this portion of its program. Changes to 40 

CFR § 131.12 are unnecessary. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section A 

Comment ID 0196-A1.001.015 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

Additionally, the proposed requirement in Sec. 131.12(a)(2) that state implementation methods "ensure" a state 

conduct an anti-degradation review for water bodies that exceed the quality needed to achieve any one of the uses 

specified in CWA Sec. 101(a)(2), is problematic in that it could require states to conduct anti-degradation reviews for 

impaired waters, which would be inconsistent with state anti-degradation policies. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section E 

Comment ID 0201-A1.001.016 

Author Name: Godfrey Mike 

Organization: Alabama Power 

IV. Antidegradation Implementation 

Alabama Power offers the following general comments regarding its overall concerns with EPA's proposed changes 

and/or additions to the antidegradation provisions of its existing regulations, followed by the Company's more specific 

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comments to the four subparts set out in the Draft Rule that more specifically outline the intent of EPA's proposed 

changes. 

EPA's stated purpose in revising its antidegradation regulations is to address the agency's alleged concern that some 

States are not currently implementing antidegradation policies or are not currently implementing those policies as 

effectively as they could. Perhaps EPA should first attempt to work with those States the agency believes are not 

complying with the antidegradation requirements of the CWA to see if the problems could be corrected in this manner 

before imposing national requirements on all States, the majority of which are complying with the requirements of the 

CWA in an effective and efficient manner. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section A 

Comment ID 0202-A2.001.012 

Author Name: Frederick Kevin 

Organization: Wyoming Department of Environmental Quality/Water Quality Division 

Antidegradation Policy 

The WDEQ/WQD is also concerned with the use of the term "policy" within the regulation. Wyoming currently has 

language within its water quality standards describing antidegradation protections. Wyoming also has an 

Antidegradation Implementation Policy that describes in more detail the way the State implements antidegradation (i.e, 

implementation methods). If the EPA's intention is to ensure that States have adopted antidegradation protections into 

rule, WDEQ/WQD recommends EPA discontinue the use of the term "policy" within the regulation. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section A 

Comment ID 0204-A1.001.002 

Author Name: Thomas John 

Organization: Law office of John R. Thomas on behalf of Chassahowitzka River Restoration Committee, et al. 

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Chapter 2 - Comment Documents Antidegradation 

ANTIDEGRADATION REVIEW 

The Interest Groups strongly agree that "maintenance and protection of high quality waters has never been more 

important." Florida has failed to afford the protection envisioned by the Clean Water Act's (CWA) antidegradation policy 

requirements, and the waters of interest to the Interest Groups are increasingly degraded by nutrient and other 

pollution, including harmful effects from reduced flow. The number of waters deemed impaired in Florida continues to 

grow. The inadequacy of Florida's efforts to avoid degradation is documented in many publications and is beyond 

dispute. See, e.g., R.Copeland, et al., Regional and Statewide Trends in Florida's Spring and Well Groundwater Quality 

(1991-2003), Florida Geological Survey Bulletin No. 69 (2009), attached as Attachment B. [0204-A1.001.009] 

The EPA Proposal-Part 1: Identification of High Quality Waters 

The Interest Groups support clarification regarding identification of high quality waters. While Florida has identified 

numerous "Outstanding Florida Waters," petitions seeking such designation for many more waterbodies and 

watercourses have been denied without ever being publicly considered and determined by the State of Florida. Florida 

lacks an explicit public participation process for designation of high quality waters. EPA should require public 

participation standards be applied to the process of designation of high quality waters as well as to any determination to 

remove high quality waters from Tier 2 protection. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section A 

7.l: Section B 

Comment ID 0204-A1.001.006 

Author Name: Thomas John 

Organization: Law office of John R. Thomas on behalf of Chassahowitzka River Restoration Committee, et al. 

The EPA proposed high waters identification criteria must be applied not only to Tier 3 waters, it should also applied to 

Tier 2.5 waters. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section J 

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Chapter 2 - Comment Documents Antidegradation 

Comment ID 0206-A1.001.014 

Author Name: Foster Kelly 

Organization: Waterkeeper Alliance Inc. and Waterkeeper Organizations 

We also request that EPA amend section 131.6(d) to clarify that implementation methods are one of the minimum 

requirements for a water quality standards submission in accordance with EPA's request for comment on this issue. 78 

Federal Register 54,530. 

Further, the proposed requirements for implementation methods in 40 C.F.R. §§131.12(b)(1) and (2) are not truly 

implementation methods but, rather, represent core provisions relating to the policy itself. These provisions, subject to 

our comments above, should be included under antidegradation policy as opposed to implementation. More importantly, 

the inclusion of these two items under implementation methods gives the erroneous impression that these are the only 

issues that must be addressed in implementation methods. To the extent the EPA intends to establish requirements for 

antidegradation implementation, the requirements should address implementation of all antidegradation requirements 

and not just Tier 2 requirements. The list "of the areas states' and tribes' implementation methods would need to 

address, at a minimum, to be consistent with the WQS regulation" that EPA sets forth in the preamble to the Proposed 

Rule does not adequately ensure that states will be required to develop implementation methods that are consistent 

with the CWA and 40 C.F.R. Part 131. 78 Federal Register 54,530. Further, the list itself in inconsistent with the CWA 

and water quality standards regulation, and contains provisions which we have objected to previously in these 

comments. EPA should either include a general statement that implementation plans are required to be consistent with 

the CWA and 40C.F.R. Part 131 in this Proposed Rule or it should propose standards for implementation plans that can 

be reviewed and commented by the public upon as part of this rulemaking. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section K 

7.l: Section M 

Comment ID 0207-A1.001.013 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

•Impairment - EPA should clarify that a water body is impaired only if it fails to meet a water quality standard, not if a 

state has failed to perform an anti-degradation review. 

Response 

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For response to this comment, see the following response essay(s): 

7.l 

7.l: Section E 

Comment ID 0207-A1.001.031 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

4. Basis for 303(d) listing. 

Finally, we note that the proposed rule does not address the use of antidegradation for listing impaired waters. As noted 

above, under CWA § 303(c)(2)(A), a "revised or new water quality standard shall consist of the designated uses of the 

navigable waters involved and the water quality criteria for such waters based upon such uses." EPA cannot expand 

that definition when implementing CWA § 303(d) and should clarify that antidegradation policies are not a basis for 

including a water body on a list of impaired waters. [FN4] 

[FN4] EPA's 2014 guidance to states regarding their 303(d) lists suggests that outstanding natural resource water could 

be listed as impaired based on antidegradation policies, stating that: "If [ ] data and information indicate that the water is 

not meeting the State's requirement for maintenance and protection of the water quality of the ONRW under the 

antidegradation portion of its water quality standards, in accordance with CWA and EPA regulations, the waters would 

be listed on the State's Section 303(d) list even if pollutant concentrations do not exceed water quality criteria levels." 

See Memorandum dated September 3, 2013 from Denise Keehner to Water Division Directors, entitled "Information 

Concerning 2014 Clean Water Act Sections 303(d), 305(b), and 314 Integrated Reporting and Listing Decisions," 

Available at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/2014-memo.cfm#memo This policy is unworkable 

and exceeds EPA's authority under the Act. EPA should clarify that States are not required to place water on their 

303(d) list that meet water quality standards. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section E 

Comment ID 0210-A1.001.010 

Author Name: Connelly Kent 

Organization: Coalition of Local Governments 

The Coalition urges deletion of nonpoint source language from Sections 131.12 and 131.14 in the EPA final rulemaking. 

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Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section D 

8.g.v 

Comment ID 0213-A1.001.003 

Author Name: Coyne Kevin 

Organization: West Virginia Department of Environmental Protection 

Antidegradation Policy - West Virginia has adopted and received EPA approval on state antidegradation procedures 

and to say the process and effort was highly contentious and time consuming would be an understatement. DEP agrees 

that antidegradation is an important component of the WQS process and the proposal outlines requirements already in 

place for West Virginia. These antidegradation procedures first developed (and EPA approved) in 2004, were later 

revised based on comments and recommendations from EPA in 2008, and have been an integral component of the 

state NPDES permitting process. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section B 

Comment ID 0215-A1.001.014 

Author Name: Callaway Casi 

Organization: Mobile Baykeeper 

We also request that EPA amend section 131.6(d) to clarify that implementation methods are one of the minimum 

requirements for a water quality standards submission in accordance with EPA's request for comment on this issue. 78 

Federal Register 54,530. 

Further, the requirements for implementation methods in 40 C.F.R. §§131.12(b)(1) and (2) are not truly implementation 

methods but, rather, represent core provisions relating to the policy itself. These provisions, subject to our comments 

above, should be included under antidegradation policy as opposed to implementation. More importantly, the inclusion 

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of these two items under implementation methods gives the erroneous impression that these are the only issues that 

must be addressed in implementation methods. To the extent the EPA intends to establish requirements for 

antidegradation implementation, the requirements should address implementation of all antidegradation requirements 

and not just Tier 2 requirements. The list "of the areas states' and tribes' implementation methods would need to 

address, at a minimum, to be consistent with the WQS regulation" that EPA sets forth in the preamble to the Proposed 

Rule does not adequately ensure that states will be required to develop implementation methods that are consistent 

with the CWA and 40 CFR Part 131. 78 Federal Register 54,530. Further, the list itself in inconsistent with the CWA and 

water quality standards regulation, and contains provisions which we have objected to previously in these comments. 

EPA should either include a general statement that implementation plans are required to be consistent with the CWA 

and 40 CFR Part 131 in this Proposed Rule or it should propose standards for implementation plans that can be 

reviewed and commented by the public upon as part of this rulemaking. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section K 

7.l: Section M 

Comment ID 0221-A1.001.003 

Author Name: Coyne Kevin 

Organization: West Virginia Department of Environmental Protection 

Antidegradation Policy - West Virginia has adopted and received EPA approval on state antidegradation procedures 

and to say the process and effort was highly contentious and time consuming would be an understatement. DEP agrees 

that antidegradation is an important component of the WQS process and the proposal outlines requirements already in 

place for West Virginia. These antidegradation procedures first developed (and EPA approved) in 2004, were later 

revised based on comments and recommendations from EPA in 2008, and have been an integral component of the 

state NPDES permitting process. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section B 

Comment ID 0231-A2.001.030 

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Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

EPA should also clarify that antidegradation policies are not a basis for including a waterbody on a list of impaired 

waters. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section E 

Comment ID 0235-A2.001.006 

Author Name: Lumley Babtist 

Organization: Columbia River Inter-Tribal Fish Commission 

3. Anti-degradation. CRITFC appreciates that EPA has created a more substantive method by which states and tribes 

can implement anti-degradation. EPA, however, is missing an opportunity to revise section 131.12(a)(2) which has 

troubling language allowing for lowering of water quality for "important economic and social development". While this 

language is not currently being revised, we encourage EPA to revisit this section during this rulemaking. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section D 

Comment ID 0236-A2.001.013 

Author Name: Weigel Brian 

Organization: Wisconsin Department of Natural Resources 

Recommended changes: 

• WDNR requests EPA amends or further clarifies its definition of high quality waters. High quality waters should not be 

based solely on whether or not an in-stream parameter exists at a level that is better than applicable criteria. This 

definition results in ALL waters either being impaired (below criteria) or high quality (above criteria), with no middle 

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ground. A higher threshold should be set for high quality waters; which perhaps is implied in the definition, but not 

explicit. States should maintain the ability to define high quality waters in a matter that is consistent with the CWA and 

practicable for their State. If this definition is maintained it forces states to do a parameter-by-parameter evaluation, 

which limits the flexibility for states to make their own assessments as to what constitutes a high quality water, and 

would be difficult to implement given the lack of in-stream data for some parameters, as mentioned above. 

Example: Wisconsin's phosphorus criteria for a certain lake type is 40 ug/L. Lake monitoring shows the lake is at 38 

ug/L, on the threshold of impairment. This lake should not be deemed high quality simply because it is not exceeding 

the criteria. A higher threshold for that lake type-for instance, 20 ug/L- would be more indicative of a high quality water. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section C 

Comment ID 0240-A2.001.017 

Author Name: Turner Jr. James 

Organization: Murray Energy Corporation 

c. Where water quality standards are being met on high quality waters (Tiers 2 and 3), minor degradation should have 

little or no impact on the uses. Lower quality Tier 1 waters should not be subject to the highly restrictive and regimented 

antidegradation analysis prescribed by the proposed rule 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section D 

Comment ID 0247-A2.001.004 

Author Name: Turner Judson 

Organization: Georgia Department of Natural Resources 

Antidegradation Review Applicability 

Page 54526 of the preamble states, in part, that antidegradation reviews are applicable to revisions to effluent 

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limitations based on a total maximum daily load, wasteload allocation, or water quality standard. While other language 

in the paragraph explains that this would apply only if the revision was subject to the antidegradation policy, clarification 

is needed so that the statement is not taken out of context. We recommend that the preamble be clarified to state that 

an antidegradation analysis would be triggered when an increase to permitted loadings is proposed. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section F 

Comment ID 0251-A2.001.019 

Author Name: Wigal Jennifer 

Organization: Oregon Department of Environmental Quality 

IV) Comment Regarding Antidegradation 

General Comment 

While DEQ appreciates the opportunity to comment on important clarifications to the antidegradation requirements, 

DEQ notes that much remains unclear about what is actually required under the Clean Water Act related to 

antidegradation. The CWA itself says very little about antidegradation; the federal regulations are very brief and leave 

much to interpretation. Interpretations of the requirements have evolved through EPA writings, actions on states' 

standards and court decisions, and as such, are scattered through multiple documents. None of the documents 

explains clearly what is required of states, what is at the discretion of the states, or what test EPA will use to ensure that 

states are meeting the minimum requirements of the CWA. 

While the proposed rules address a few select antidegradation issues, much remains unaddressed, such as tier one or 

"existing use" review and conducting antidegradation reviews through various regulatory actions. States, stakeholders 

and EPA staff would benefit from further EPA interpretation of the statutory requirements and to clearly define these for 

the benefit of states and stakeholders, as well as EPA staff. The proposed revisions will fall short of addressing issues 

that should be addressed. EPA should be as clear as possible about what is required of states, how much the states 

have the discretion to develop their own procedures, and, for terms that need to be defined at the federal level, to define 

those clearly to aid with consistency of application across the nation and to avoid the need to clarify the requirements 

through legal proceedings. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

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7.l: Section J 

Comment ID 0252-A2.001.031 

Author Name: Fry Eric 

Organization: Peabody Energy 

EPA should also clarify that antidegradation policies are not a basis for including a waterbody on a list of impaired 

waters. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section E 

Comment ID 0255-A2.001.009 

Author Name: Quaempts Eric 

Organization: Confederated Tribes of the Umatilla Indian Reservation 

EPA should also be cautious about allowing "short-term" degradation that is undefined or poorly defined, where this 

loophole swallows up the requirement and actual widespread degradation results. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section C 

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Comment ID 0256-A2.001.006 

Author Name: Shepherd Hal 

Organization: The Center for Water Advocacy 

III. Antidegradation Implementation Methods 

In 1997, EPA approved changes to the State of Alaska's WQS, including revisions to Alaska's antidegradation policy, 

but stressed the need for the state to clarify how it intended to implement the policy during its next triennial review. EPA 

further recommended that the state follow the antidegradation guidance in its WQS Handbook (Second Edition, 1993). 

Today, 16 years later, the State of Alaska has done neither. Especially problematic has been ADEC's deference to the 

applicants' assertions regarding the necessity for lowering water quality, without a demonstration that other costeffective pollution prevention alternatives are not available to the entity, see infra at 5, and the ADEC's failure to adopt 

analytical tools for determining whether the benefits of economic or social development unquestionably outweigh the 

costs of lowering water quality. See EPA, Economic Guidance for Water Quality Standards Handbook (1995) at 1-4. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section A 

Comment ID 0257-A1.001.012 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

5. Antidegradation Review for Highest Attainable Use 

Although it is not discussed in EPA's proposal, it would appear that where a highest attainable use is established for a 

waterbody pursuant to a use attainability analysis or a variance, a high quality antidegradation review analysis could be 

required thereafter for that newly established use for new or expanded discharges even though the waterbody is 

partially impaired for the full use. Assuming EPA proceeds with the proposal, EPA should clarify that high quality 

antidegradation review is not required in states that apply antidegradation review on a waterbody-by-waterbody basis 

with respect to a "highest attainable use" and the supporting criteria that are established after a UAA or variance. 

Response 

For response to this comment, see the following response essay(s): 

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7.l 

7.l: Section H 

Comment ID 0266-A2.001.003 

Author Name: Reese Thomas 

Organization: Attorney on behalf of the Florida Wildlife Federation and Al and Cindy Davis 

2. WQSs must clearly identify activities subject to antidegradation implementation review and ensure public participation 

The FWF and the Davises request EPA amend Section 131.12(b) to require states and tribes adopt antidegradation 

implementation methods which specifically identify by lists the activities which are subject to antidegradation 

implementation review. EPA has long recommended "that a complete a complete discussion of the activities requiring 

an antidegradation review be included in the state or tribal water quality standards...". See, EPA's 1998 ANPRM, pg. 

36780 (July 7, 1998). 

EPA's position has been that, at a minimum, states and tribes must apply antidegradation WQSs and antidegradation 

review to any activities that are regulated under State, Tribal, or federal law. The activities regulated under state, tribal 

or federal law include CWA §402 NPDES permits, CWA §404 dredge and fill permits, any activity requiring a CWA §401 

water quality certification, any activity subject to state or tribal nonpoint source control requirements or regulations, and 

any activity which is otherwise subject to state or tribal regulations that specify that WQSs are applicable. [FN2] See, 

EPA's 1998 ANPRM, pg. 36780 (Fed. Reg. July 7, 1998). States and tribes must also be required to define Tier 1 

existing uses and specify that protection of both existing and designated uses is required. 

No waterbodies can be exempted from antidegradation review for compliance with antidegradation policy. See, 40 

C.F.R. §131.12; 40 CFR §130.7(b)(3); Kentucky Waterway Alliance, 540 F.3d 466, at 484-85 (6th Cir. 2008). 

Antidegradation reviews must be performed under all three tiers of antidegradation, with the reviews documented and 

subjected to public review and comment. See, 33 U.S.C. Section 1251(e). 

[FN2] In Florida this includes all activities in Outstanding Florida Waters (OFWs) (Fla.Admin.Code R. 62-4.242(2)(a)), all 

activities subject to Environmental Resources Permits; all consumptive use water withdrawals in the SJRWMD 

(Fla.Admin.Code R. 40C-2.301(2) & (4)(k)), all activities subject to General Permits, and all BMPs. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section B 

7.l: Section F 

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Comment ID 0268-A2.001.012 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

E. Antidegradation Implementation 

We strongly urge EPA not to use misleading phrases such as "Tier 2 high quality waters." Terming high quality waters 

"Tier 2" leads to people calling waters "Tier 1 waters" which is obviously misleading and incorrect because Tier 1 

applies to all waters. See id. at 54525. Likewise EPA uses the phrase "[a]ntidegradation reviews" which creates 

ambiguity about what the agency is talking about. Id. at 54526. When EPA says that "antidegradation reviews" are 

required by effluent revisions based on TMDLs, wasteload allocations, or standards but not for revisions to TMDLs, 

wasteload allocations, or standards, what is it saying? We would take this to mean that Tier 2 antidegradation reviews 

are being discussed, not the provisions of Tier 1 which require no specific "reviews." However this discussion is 

certainly less than clear. Tier 1 evaluations should be a part of all the listed regulatory actions. We are encouraged that 

EPA is interested in elevating antidegradation but we believe that the half-hearted proposals in this notice will have little 

if any effect. Sometimes going half-way is the same as going nowhere. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section C 

Comment ID 0268-A2.001.017 

Author Name: Bell Nina 

Organization: Northwest Environmental Advocates 

Background 

EPA states that antidegradation provides a framework for "maintaining existing uses, for protecting waters that are 

either attaining or are of a higher quality than necessary to support the CWA 101(a)(2) goals, and for protecting 

state/tribal identified Outstanding National Resource Waters (ONRWs)." Id. at 54526. We agree with this description in 

theory but in reality it is simply wrong. Take, for example, Oregon. Oregon does not identify existing uses when it takes 

regulatory actions. Therefore it cannot possibly ensure that it maintains them. Oregon has, without public comment or 

the approval of its Commission, changed its identification of waters subject to Tier 2 review from those with high quality 

constituents to only waters that are uniformly of high quality (no impairments in any parameter). Because almost every 

monitored waterbody in Oregon violates temperature standards or some other pollutant, there are very few waters into 

which permitted sources discharge that are subject to Tier 2 review. Finally, Oregon has no ONRWs and will never 

have any ONRWs identified and protected under either Tier 2.5 or Tier 3. In other words, using just one state as an 

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example, it is clear that the antidegradation policy can be and often is simply a set of words with little or no real world 

meaning. 

What does EPA mean when it starts a paragraph stating "[h]igh quality waters provide support for aquatic life and 

recreation and support unique and significant ecologies and species habitat"? Id. Yes, waters that meet or exceed water 

quality standards are of particular importance to support of the uses the Clean Water Act intends to protect. But is EPA 

talking about actual waters or waters that some states have deemed to be "high quality" waters? EPA's own 

unwillingness to take a position on the scope of high quality waters undermines even its attempt to make a banal 

opening statement on their importance. Clearly it is irrelevant to a swimmer if a waterbody is not cold enough to protect 

cold-water salmonids. Just as irrelevant is the presence of human pathogens to a salmonid. But EPA's grand statement 

regarding the benefits of protecting waters that meet or exceed levels necessary to support CWA uses is entirely 

undermined by a state which chooses to withhold that Tier 2 review protection from all or nearly all waters because it 

deems the impairment of one parameter to result in the lack of protection for all other parameters. EPA's acceptance of 

the waterbody-by-waterbody approach to high quality waters, for example in Oregon, negates the entire existence of 

Tier 2 with the exception of obtaining checkmarks on a form related to NPDES permitting, a form that concludes 

repeatedly that no Tier 2 review is required. Thus, for example, we have these questions on the antidegradation form 

that is filled out for each proposed NPDES permit in Oregon: 

4. Is this surface water a Water Quality Limited Water? 

Yes. Go to Step 14.
 

No. Go to Step 2. Note: The surface water must fall into one of three (3) categories: Outstanding Resource Water (Step
 

2), High Quality Water (Step 3), or Water Quality Limited Water (Step 4).
 

See, e.g., Oregon Department of Environmental Quality, Proposed water quality permit renewal for the Oak Lodge
 

Water Reclamation Facility 97 (June 13, 2013)(emphasis added) [0268-A5]. As is made clear in the italized language, if
 

a water is impaired for just one pollutant Oregon puts it into the "Water Quality Limited Water" for all purposes. How
 

then are EPA's lofty goals of protecting high quality waters achieved for Oregon waters? How are the health and growth
 

of businesses that depend on clean water taken into consideration? Or the prevention of public health risks and loss of
 

ecological diversity? Where is the focus on the long term benefits of keeping clean water clean? Answer: not in this
 

state with its use of the waterbody-by-waterbody approach to designating high quality waters. What kind of national
 

policy allows for such variability that can result in states' providing the very best of protection ranging to those who
 

provide no protection whatsoever? Answer: it's a poor policy. We urge EPA to revise this portion of its proposed rule
 

and require all states to identify high quality waters by parameter.
 

We appreciate EPA's intent in focusing on Tier 2 but we believe this is entirely misguided. EPA says itself that "the
 

number of waters that are identified as impaired continues to grow." Id. We believe this argues for a focus on both Tier
 

1 protections and Tier 2 protections and review. In addition, Tier 2 relies on Tier 1 because Tier 1 is a fundamental part
 

of the use protection of water quality standards. Therefore the stronger Tier 1 is implemented, the better the water
 

quality result. In any case, EPA's comment that the "benefits of high quality waters may be jeopardized if states and
 

tribes do not consider the long-term consequences of lowering water quality" is both true and, we believe, ignored by
 

EPA in the proposals that it advances in this notice. If something is important it should be in rules. Specifically, EPA
 

should require states to set out their Tier 1 implementation methods in state rules, subject to EPA review. 

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Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section A 

7.l: Section N 

Comment ID 0278-A2.001.013 

Author Name: Hornback Chris 

Organization: National Association of Clean Water Agencies 

If particular states are falling short of their antidegradation responsibilities, then other administrative tools are available 

to EPA to bring these states up to par. For example, EPA and states may choose to work collaboratively on a shared 

"vision" or "framework" for antidegradation implementation, as they have recently done with TMDLs and nutrient criteria, 

respectively. In addition, or alternatively, EPA may choose to use its grant funding and technical assistance resources 

to target particular state programs or implementation practices. 

NACWA respectfully submits that it is not appropriate for EPA to point to a growing list of impaired waters as grounds to 

conclude that states are not adequately preventing degradation. New monitoring tools, better data, more sophisticated 

modeling and broader assessment coverage are much more likely to serve as explanations for the growing list of 

impaired waters than any actual worsening of water quality. 

Response 

For response to this comment, see the following response essay(s): 

7.l 

7.l: Section A 

Comment ID 0279-A2.001.003 

Author Name: Coyne Kevin 

Organization: West Virginia Department of Environmental Protection 

Antidegradation Policy - West Virginia has adopted and received EPA approval on state antidegradation procedures 

and to say the process and effort was highly contentious and time consuming would be an understatement. DEP agrees 

that antidegradation is an important component of the WQS process and the proposal outlines requirements already in 

place for West Virginia. These antidegradation procedures first developed (and EPA approved) in 2004, were later 

revised based on comments and recommendations from EPA in 2008, and have been an integral component of the 

state NPDES permitting process. 

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7.l 

Chapter 2 - Comment Documents Antidegradation 

Response 

For response to this comment, see the following response essay(s): 

7.l: Section B 

7.M - ANTIDEG - LEGAL 

Comment ID 0119-A1.001.006 

Author Name: Lemke Lee 

Organization: Georgia Mining Association 

Antidegradation Implementation 

EPA characterizes its proposal to add language to §131.5(a) as "‘describing' EPA's authority to review and approve or 

disapprove" antidegradation policies (78 FR 54525, col. 3). The use of this terminology is deceptive and biased in that it 

implies that this action is a clarification of an existing authority, yet that authority does not exist. Rather, this action 

would codify new EPA regulatory authority to approve or disapprove state/tribal antidegradation plans without actually 

citing its statutory authority to do so. In fact, it appears that the reason that the statutory authority is not cited is actually 

that the Clean Water Act does not grant EPA this authority. After 15 years of "listening" and ANPRM's on this issue, 

EPA should focus on realistic and practical implementation issues rather than what appears to be an unjustified power 

grab that will only result in more litigation and more delays. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section B 

Comment ID 0134-A1.001.012 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

Antidegradation 

Minimum requirements for antidegradation implementation methods - Current EPA regulations at 40 C.F.R. § 131.12 

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require states to "develop and adopt a statewide antidegradation policy and identify the methods for implementing such 

policy pursuant to this subpart." They also require at 40 C.F.R. § 131.6 that a water quality standards submission 

include an antidegradation policy. These existing regulations already apply (or exceed) the maximum extent of EPA's 

authority over State antidegradation policies under the CWA. The CWA does not specify elements of implementation 

procedures, and therefore such elements are most properly and efficiently left to the States. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section A 

Comment ID 0145-A2.001.012 

Author Name: Shea III Quinlan 

Organization: Edison Electric Institute 

Antidegradation 

Minimum requirements for antidegradation implementation methods - Current EPA regulations at 40 C.F.R. § 131.12 

require states to "develop and adopt a statewide antidegradation policy and identify the methods for implementing such 

policy pursuant to this subpart." They also require at 40 C.F.R. § 131.6 that a water quality standards submission 

include an antidegradation policy. These existing regulations already apply (or exceed) the maximum extent of EPA's 

authority over State antidegradation policies under the CWA. The CWA does not specify elements of implementation 

procedures, and therefore such elements are most properly and efficiently left to the States. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section A 

Comment ID 0151-A1.001.004 

Author Name: Tate Michael 

Organization: Kansas Department of Health and Environment 

2) Antidegradation – Our review of the statutory history of the antidegradation policy provision of water quality standards 

reveals that antidegradation has a very tenuous hold in the Clean Water Act. As best as we can tell, a provision was 

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added as Section 303(d)(4)(B) by the Water Quality Act of 1987 that states: "For waters identified under paragraph 

(1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such 

waters or otherwise required by applicable water quality standard, any effluent limitation based on a total maximum 

daily load or other waste load allocation established under this section, or any water quality standard established under 

this section, or any other permitting standard may be revised only if such revision is subject to and consistent with the 

antidegradation policy established under this section." 

Note that there is no antidegradation policy established under this section. Other than provisions of Section 118 

pertaining to the Great Lakes, the Clean Water Act is largely silent on antidegradation. Therefore, EPA's application of 

antidegradation described by the existing and proposed regulations may be extending beyond Congress' intent. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section A 

Comment ID 0157-A1.001.004 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

Antidegradation -- 40 CFR 131.12 

Lack of Statutory Authority 

Under EPA's proposed changes to 40 CFR 131.12, EPA would establish new limitations and requirements for 

classifying waterbodies for antidegradation purposes and would specify the type of antidegradation analysis, including 

technology-based reviews and alternative analyses, that would be required to be implemented by states as part of their 

water quality standards. Concerns with EPA's substantive antidegradation proposals are discussed in more detail 

below. However, the Chamber questions whether EPA has statutory authority to require states to adopt specific 

antidegradation procedures and substantive review standards. To our knowledge, antidegradation policies were not 

even mentioned in the Clean Water Act until 1987 when an amendment to CWA Section 303(d)(4)(B) added a provision 

that allowed effluent limitations in NPDES Permits to be changed for waters attaining designated uses "only if such 

revision is subject to and consistent with the antidegradation policy established under this section." Section 303 of the 

Act is focused on state water quality standards and programs, not programs to be developed by EPA. A plain reading of 

this provision indicates it does not authorize EPA to develop new antidegradation policies or standards and to impose 

those obligations on states. In fact, the only provisions in the Clean Water Act that authorize EPA to develop "guidance" 

for "antidegradation policies" and implementation procedures are in Section 118(c)(2) that applies to the Great Lakes. 

The complete lack of similar authorization in the Act for EPA development of antidegradation policy for other state 

waters indicates no such authority exists. Moreover, Congress has not established any standards against which EPA 

promulgated antidegradation procedures and standards could even be judged to ensure they are reasonable and 

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consistent with Congressional intent. 

Finally, the proposed antidegradation provisions go well beyond any EPA policy that existed in 1987 when the reference 

to "the antidegradation policy established under this section" was added to Section 303(d)(4)(B) of the Clean Water Act. 

Therefore, the newly proposed revisions to the antidegradation provisions of 40 CFR 131.12 represent an evolving 

increase in the stringency of antidegradation procedures and standards that usurp state authority without statutory 

authorization. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section A 

7.m: Section D 

Comment ID 0160-A2.001.011 

Author Name: West Jeff 

Organization: Xcel Energy 

Furthermore, there is no authority under the Act for EPA to consider these implementation regulations as water quality 

standards under Section 303(c). 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section C 

Comment ID 0168-A1.001.007 

Author Name: Walker Roger 

Organization: Regulatory Environmental Group for Missouri

 5. Antidegradation Policy. 

The rulemaking proposes to make several substantial changes to antidegradation regulations. One such change 

creates an entirely new regulation at §131.12(b)(2). Here, again, EPA attempts to require States and Tribes to 

undertake obligations that Congress did not mandate under the plain language of the CWA - actions which exceed 

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EPA's statutory authority. Simply put, there is nothing in the CWA that compels States to implement antidegradation 

policies in any precise way as EPA is now proposing; moreover, EPA does NOT have the authority to either approve or 

disapprove State antidegradation policies. 

EPA's attempt to describe current antidegradation policies as "ineffective" rings hollow. States and Tribes have made 

tremendous progress over the past 30 years and this "one-size-fits-all" proposal belies current progress and the need 

for States and Tribes to be creative and flexible in establishing implementation policies. States and Tribes should be 

able to "test drive" procedures and policies prior to making a leap to regulation. 

Recommendation: The proposed requirement to adopt new antidegradation language should not be incorporated into 

the Final Rule. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section A 

7.m: Section B 

7.m: Section D 

Comment ID 0169-A1.001.005 

Author Name: Letient Henri 

Organization: Teck Alaska Incorporated 

• While Teck does not dispute that CWA Section 303(d)(4), 33 U.S.C. § 1313(d)(4), gives EPA general authority to 

issue regulations embodying an antidegradation policy, EPA's proposal exceeds that authority by requiring states to 

both conduct an alternatives analysis and also to choose one of those alternatives if it is "practicable" (i.e., available, 

technologically possible, able to be successfully put into place, and economically viable). See 70 Fed. Reg. 54528. 

An examination of a different but related Section of the Act demonstrates why EPA's proposal here oversteps its lawful 

bounds. In CWA Section 118, 33 U.S.C. § 1268, Congress promulgated the Great Lakes National Program, in which it 

specifically authorized EPA to issue guidance to the Great Lakes states on antidegradation policies. See 33 U.S. C.§ 

1268(c)(2)(A). Importantly, Congress also required those states to adopt standards, policies, and procedures 

"consistent with" that guidance. Id. § 1268(c)(2)(C). As a result of that statutory authority, EPA issued regulations that 

included an alternatives analysis. See 40 CFR Part 132, App. E. Importantly, however, those regulations did not 

necessarily require the Great Lakes states to conduct the alternatives analysis, and more fundamentally, they do not 

require the states to choose one of the alternatives based on "practicability" or other considerations. Id. Instead, the 

regulations merely describe the alternatives analysis, and then direct states to use the information in evaluating whether 

the lowering of water quality is "necessary." 

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When the Great Lakes regulations were challenged as beyond EPA's authority, the D.C. Circuit made clear that EPA 

was authorized to issue them because: (1) the statute clearly allowed such regulations, id. § 1268(c)(2)(A) (EPA "shall 

provide guidance to the Great Lakes States on minimum water quality standards, antidegradation policies, and 

implementation procedures for the Great Lakes System"); and (2) the regulations set out a standard but left the states 

flexibility to create a program that met that standard-that is, the regulations did not "immediately impose any 

requirements" on the states. American Iron & Steel Institute v. EPA, 115 F.3d 979, 988 (D.C. Cir. 1997). In contrast, 

here, (1) EPA does not have explicit authority to promulgate the proposed regulations-EPA's statutory authority for the 

antidegradation regulations turns on a single, fleeting reference to "anti-degradation policy" in the Act. See 33 U.S.C. § 

1313{d)(4) ("any water quality standard established under this section, or any other permitting standard may be revised 

only if such revision is subject to and consistent with the antidegradation policy established under this section"); and (2) 

these proposed regulations do seek to impose the type of immediate and specific requirements on the states (i.e., 

conducting an alternatives analysis and choosing a practicable alternative) that the American Iron & Steel Institute court 

found EPA was not trying to impose in that case. As noted above, Teck acknowledges that EPA has some authority to 

promulgate antidegradation regulations, but its Section 303 authority certainly does not permit EPA to require more 

onerous requirements than authorized by CWA Section 118. Simply, CWA Section 303 cannot be interpreted to allow 

EPA to immediately impose a requirement like the alternatives analysis on states. Accordingly, the alternatives analysis 

should be removed from the proposed regulation. 

• EPA's proposed alternatives analysis requirement also exceeds its lawful authority by requiring states to analyze a 

facility's planned "upstream" operations (i.e., the internal waste stream, operations, or operations-related processes 

which are "upstream" of a NPDES-permitted point source of discharge}, examine alternatives to those "upstream" 

operations, and then to choose one of those "upstream" alternatives, if practicable. EPA itself does not have the 

authority to regulate a facility's operations above a discharge point, and it certainly does not have the authority to 

require states to do the very thing for which it does not have authority. Because the proposed alternatives analysis 

would require states to intrude into a facility's "upstream" operations, it should not be adopted. 

To begin, it is clear that EPA may only regulate pollutant levels at the location of a point source-it has no business 

regulating, for instance, a facility's internal waste stream prior to discharge at a point source.[FN1] American Iron & 

Steel Institute, 115 F.3d at 996 (striking down EPA guidance that required permits for certain point sources to set out a 

pollutant minimization program requiring the implementation of appropriate cost-effective control measures inside a 

facility, because "the Congress clearly intended to allow the permittee to choose its own control strategy."). In that case, 

the D.C. Circuit held that EPA impermissibly sought to deprive the permittee of the ability to choose between a point 

source control and an internal plant control system to meet its permit limitations. The court was clear-"the statute does 

not permit this sort of meddling inside a facility." Id. 

Because the Clean Water Act does not permit EPA to regulate a facility's internal operations "upstream" from where 

that facility discharges pollutants, EPA cannot require states to do what EPA does not have the authority do itself. And 

yet that is precisely what the proposed regulation seeks to do-require a state to (1) examine alternatives to a facility's 

"upstream" operations based on technological feasibility, ability to put alternatives into practice, and economic viability; 

and (2) choose one of those "upstream" alternatives if it is practicable. EPA should not adopt the proposed alternatives 

analysis because requiring states to conduct that analysis and choose an alternative exceeds EPA's authority under the 

Clean Water Act.[FN2] 

[FN1] EPA has acknowledged that the Clean Water Act authorizes it to regulate only point sources, leaving it to the 

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states to decide whether to regulate non-point sources. See American Wildlands v. Browner, 94 F. Supp. 2d 1150, 1161 

(D. Colo. 2000) (upholding and citing EPA decision to approve Montana's categorical exclusion of non-point sources 

from state anti-degradation rules). 

[FN2] In addition to it being unauthorized under the Act, Teck has concerns that the details regarding the alternatives 

analysis appear nowhere in the actual proposed regulation itself. Instead, EPA laid out criteria for deciding what is a 

"practicable" alternative in the preamble, 70 Fed. Reg. 54528. If promulgated as proposed, this regulatory language 

may create confusion among the states, as preamble guidance generally does not have the force of law. See Howmet 

Corp. v. EPA, 614 F.3d 544, 552 (D.C. Cir. 2010). 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section A 

7.m: Section D 

7.e.ii 

Comment ID 0170-A1.001.010 

Author Name: Faggert Pamela 

Organization: Dominion Resources Services, Inc. 

Antidegradation Implementation 

The current WQS Regulation requires that states establish and identify antidegradation policies. The proposed 

regulatory changes would dictate specific requirements that a State must incorporate into its antidegradation 

implementation procedures. The CWA does not specify or address implementation procedures for antidegradation. 

States' individual WQS incorporate antidegradation policies and therefore, implementation should remain a State 

responsibility. Specific implementation procedures at Section §131.12(b) should be removed from the proposed 

regulatory changes. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section C 

Comment ID 0180-A2.001.006 

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Author Name: Hobson Chris 

Organization: Southern Company 

We do not believe that it is appropriate for EPA to require states to conduct an alternatives analysis. Instead, we believe 

that how a state conducts its review, and what it considers as part of this review, are squarely within the state's 

discretion. Imposing entirely new, substantive requirements as a matter of federal regulation intrudes on state primacy 

over antidegradation, and subjects states to burdensome new administrative requirements that will be costly and time 

consuming to implement. 

In addition, we question EPA's authority to require states to evaluate not just nondegrading alternatives but also 

"minimally degrading" alternatives. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.e.ii 

Comment ID 0184-A2.001.022 

Author Name: Curley Ed 

Organization: The Western Coalition of Arid States 

States have implemented antidegradation programs for many years. EPA's proposal is an unnecessary intrusion on 

state implementation and a reversal of current law, which will not provide any actual or perceived environmental benefit. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section E 

Comment ID 0194-A1.001.011 

Author Name: Stonestreet Robert 

Organization: West Virginia Chamber of Commerce 

The Chamber notes that the specifically proposed revisions to EPA's existing antidegradation regulations again 

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undermine state decision-making. The states, and not EPA, have the primary responsibility for establishing their water 

quality standards, and must retain the flexibility and authority to establish designated uses, consider the "use and value" 

of their waters and, in the case of antidegradation, determine when the quality of waters can be lowered "to 

accommodate important economic or social development in the area in which the waters are located." 40 CFR § 

131.12(a)(2). 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section D 

Comment ID 0196-A1.001.009 

Author Name: Bostic Jason 

Organization: West Virginia Coal Association 

Anti-degradation Implementation 

EPA is proposing to require states and tribes to conduct an alternatives analysis in order to support decision-making on 

whether to authorize limited degradation of waters. WVCA believes this requirement is outside the scope of EPA's 

authority, will lead to regulatory confusion, and is so broad as to be unworkable. As an initial matter, examining specific 

alternatives or requiring additional information from permittees are not requirements of the CWA, and as such EPA has 

no authority to mandate that states do so. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.e.ii 

Comment ID 0201-A1.001.021 

Author Name: Godfrey Mike 

Organization: Alabama Power 

Alabama Power also has concerns that the proposed antidegradation regulations grant to EPA a veto-like authority to 

second-guess or override any States' decisions to lower water quality, especially those decisions made to 

accommodate important economic or social development. If so, what is the specific source of the agency's authority for 

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this type of oversight? This type of supervision or micro-management would vastly broaden federal control over state 

antidegradation decisions. Furthermore, alternatives decisions inevitably include a number of subjective determinations 

by States-who are in the best position to thoroughly evaluate all applicable regional and local factors. EPA must give 

deference to States' decisions and must not replace them with the agency's own conclusions as long as the States' 

decisions are reasonable and in compliance with applicable standards. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section D 

Comment ID 0201-A1.001.023 

Author Name: Godfrey Mike 

Organization: Alabama Power 

Proposed § 131.5(a)(3), which would authorize EPA's review and approval authority of States' antidegradation policies 

and implementation methods is unfounded and should be deleted. EPA notably offers no statutory authority for this 

proposed review. In truth, antidegradation is only mentioned once in the CWA (Section 303(d)(4)) and does not specify 

what elements must be contained in a State's antidegradation policies. Nothing permits EPA to dictate to States the 

manner in which antidegradation policies will be implemented. Antidegradation is a component of State WQS, and 

States are supposed to be able to make their own choices as to how to implement their WQS, utilizing their unique 

knowledge of regional and local matters. The only enumerated constraint or litmus set out in the CWA is that States 

may not act in a manner that is inconsistent with the Act. In effect, EPA's proposal would usurp States' established 

authority and add a superfluous layer of bureaucracy to this already-functioning regulatory process. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section A 

7.m: Section B 

7.m: Section D 

Comment ID 0207-A1.001.025 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

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E. Antidegradation. 

Section 101(a) of the CWA establishes a goal "to restore and maintain the chemical, physical and biological integrity of 

the nation's waters." However, CWA goals are not self-implementing. They are implemented through "the provisions of 

this Act." CWA § 101(a). 

There are only two sections of the Act with "provisions" related to antidegradation policies. Section 303(d)(4)(B) 

references antidegradation policies as follows: 

For waters identified under paragraph (1)(A) [waters identified by a State where technology based standards are not 

stringent enough to implement water quality standards] where the quality of such waters equals or exceeds levels 

necessary to protect the designated use for such waters or otherwise required by applicable water quality standard, any 

effluent limitation based on a total maximum daily load or other waste load allocation established under this section, or 

any water quality standard established under this section, or any other permitting standard may be revised only if such 

revision is subject to and consistent with the antidegradation policy established under this section. 

This section does not grant EPA any authority with respect to implementation of antidegradation policies. In contrast, § 

118, relating to the Great Lakes Water Quality Guidance, authorizes EPA to establish guidance on antidegradation 

policies only for the Great Lakes, and requires State regulations to be consistent with the EPA guidance. Outside of the 

Great Lakes, such implementation is left to the states. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section A 

Comment ID 0207-A1.001.028 

Author Name: Bodine Susan 

Organization: American Farm Bureau Federation et al. 

Taken together, the expansion of anti-degradation reviews to include impaired waters and an alternatives analysis 

greatly expand federal control over land and water use choices that are currently under the sole purview of states. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section E 

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Comment ID 0208-A1.001.013 

Author Name: Foster Wade 

Organization: The Fertilizer Institute 

V. State and Tribal Autonomy over Antidegradation Implementation 

The CWA does not define an antidegradation plan or method as a "WQS," nor does it create federal veto authority over 

states' or tribes' preferred methods for pursuing antidegradation. Under the proposed antidegradation regulations for 40 

C.F.R. §§ 131.12, the Proposed Rule purports to create mandatory duties for states and tribes for activities that are far 

beyond EPA's jurisdiction. Methods for implementing WQS are not themselves a "WQS" for the same reasons that 

compliance schedules to achieve WQS are not "WQS." With respect to antidegradation, the CWA sets one aspirational 

goal (among other potentially-competitive goals in section 101[FN18]): "to restore and maintain the chemical, physical, 

and biological integrity of the Nation's waters." However, the CWA discusses the authority of a state to use an 

"antidegradation policy established under this section" within the confines of section 303 - the same section that 

authorizes states to establish their own WQS and policies,[FN19] rather than the section granting EPA authority to 

administer the CWA, generally.[FN20] Moreover, the portion of section 303 addressing antidegradation does not include 

the same provision for EPA review and possible disapproval under section 303(c).[FN21] 

The Proposed Rule suggests that EPA is considering an alteration to this statutory arrangement by, among other 

things: (1) granting EPA the same authority to review and approve (or disapprove) state antidegradation policies that 

the CWA grants EPA over WQS,[FN22] and (2) requiring state and/or tribal analyses of "any-practicable [sic] 

alternatives" within "a range of non-degrading and minimally degrading practicable alternatives"[FN23] when authorizing 

lower water quality for certain water bodies. 

As set forth in ANPC's comments, the CWA authorizes states and tribes, rather than EPA, to establish antidegradation 

policies. Moreover, the double administrative burden of requiring EPA review of state and tribal antidegradation policies, 

and the creation of a new administrative duty for states and tribes under the Proposed Rule's mandatory "alternatives 

analysis," would hobble the exclusive statutory authority of states and tribes to establish methods to achieve their own 

WQS. In effect, this alteration would expose states and tribes to an added threat of both an EPA disapproval, plus 

threatened or actual litigation over purported failures to accurately consider "any" practicable alternatives to 

implementing their own antidegradation policies. EPA does not have authority to impose such burdens on state 

compliance methods: the CWA vests the authority to control those methods in states and tribes. 

Analogous to the proposed UAA language, EPA with its proposed Anti-Degradation Implementation Methods 

amendments is proposing the creation of yet another complex level of regulation to be directed by EPA and arbitrarily 

imposed on the states, while stripping states of the discretion accorded them by the CWA. 

The current version of 40 C.F.R. § 131.12 already directs the states to adopt a statewide antidegradation policy and 

"identify the methods for implementing such a policy." The existing regulations mandate that both the antidegradation 

policy and the "implementation methods" must be consistent with paragraphs 131.12(a)(1) through (4), which set out 

the substantive requirements of an antidegradation provision. This is consistent with the CWA. 

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The application and implementation of state water quality standards is addressed in existing regulations at 40 C.F.R. § 

131.13 which states:
 

States may, at their discretion, include in their State standards, policies generally affecting their application and
 

implementation, such as mixing zones, low flows and variances. Such policies are subject to EPA review and approval.
 

(Emphasis added).
 

In sum, not only are the implementation policies clearly mandated under current EPA regulations, they are also already
 

subject to EPA review and approval. Yet, consistent with the CWA, the method of implementation is left to states'
 

discretion in the existing rule.
 

The proposed antidegradation rule language is overly prescriptive and further erodes the limited discretion EPA has left
 

to the states.
 

[FN18] See generally 33 U.S.C. § 1251.
 

[FN19] Id. § 1313(d)(4)(b) (emphasis added).
 

[FN20] See id. § 1251(d).
 

[FN21] Compare id. § 1313(c)(2)-(3) with id. § 1313(d)(4)(b).
 

[FN22] See 78 Fed. Reg. 54,529.
 

[FN23] See id. at 54,544.
 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section A 

7.m: Section D 

7.e.ii 

7.f.i 

Comment ID 0210-A1.001.006 

Author Name: Connelly Kent 

Organization: Coalition of Local Governments 

2. Nonpoint Source Controls in the CWA 

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The CWA does not include any provision to require or provide for enforcement of best management practices for 

nonpoint source controls. See American Wildlands v. Browner, 260 F.3d 1192, 1198 (10th Cir. 2001); 33 U.S.C. §1313; 

40 C.F.R. §131.12(a)(2). The proposed rule takes the extraordinary step of imposing two nonpoint source requirements. 

First, the EPA alters Section 131.12 to require a state's antidegradation implementation ensure that "all cost-effective 

and reasonable best management practices for nonpoint source control" will be achieved. Lacking any condition for 

achievement, this rule is categorical in nature and extends well beyond the plain language of the CWA and ignores 

contrary federal jurisprudence. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.e.ii 

Comment ID 0225-A1.001.007 

Author Name: Blackham Leonard 

Organization: Utah Department of Agriculture and Food 

131.12 Antidegradation Policy and Implementation Methods 

(a)(2) 

There are several language changes in this section of the rule that instead of offering the clarification, which is one of 

the stated purposes for the rule, would mandates the states and tribes go to a higher level of scrutiny. The changes are 

meant to give the EPA more authority to regulate in areas that they have no authority, 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section B 

Comment ID 0225-A1.001.009 

Author Name: Blackham Leonard 

Organization: Utah Department of Agriculture and Food 

EPA is also requiring reasonable best management practices for non-point source which EPA has no authority over. 

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Response 

For response to this comment, see the following response essay(s): 

7.m 

7.e.ii 

Comment ID 0226-A1.001.007 

Author Name: Jones Lewis 

Organization: King and Spalding LLP on behalf of Georgia Water Quality Stakeholders 

B. The Proposed New Paragraph (b)(2) Would Bring the Antidegradation Rule into Conflict with Sections 301 and 

303(c) of the Act. 

In addition to being unwise, the Georgia Stakeholders submit that the proposed amendment to the antidegradation rule 

also exceeds EPA's authority and conflicts with specific provisions of the Clean Water Act. In particular, the proposal to 

"clarify" the antidegradation rule to establish a new standard for effluent limitations––by focusing the necessity 

determination on effluent limits and requiring that a "less degrading" limit always be selected-would conflict with 

statutory effluent limits established in 1972 by Section 301. 

The preamble identifies two sources of authority for the antidegradation rule: Section 101(a), which identifies the broad 

objectives of the Clean Water Act, and Section 303(d)(4)(B), a 1987 addition to the statute that includes a single, 

unexplained reference to "the antidegradation policy established under this section." [FN12] These authorities are 

questionable at best. But whatever their merits as applied to the existing rule, they will not support the proposed 

amendment, because the proposed new paragraph (b)(ii) would bring the antidegradation policy into conflict with other 

specific provisions of the Clean Water Act in a way the existing rule does not. 

1. Section 101(a) Does Not Authorize the Antidegradation Rule. 

The preamble invokes the statutory objective-to "restore and maintain the chemical, physical, and biological integrity of 

the Nation's waters," 33 U.S.C. § 1251(a)-as a primary source of authority for the antidegradation rule, asserting that its 

requirements are an essential component of the program to "maintain" existing uses and to protect high quality waters. 

[FN13] This is weak authority, at best. 

Congress has not authorized EPA to promulgate just any rule that EPA believes would advance the statutory 

objectives. Indeed, the floor manager of the conference report for the 1972 Act, Senator Muskie, specifically noted that 

"[t]here were disagreements over the means to achieve" the statutory objectives, and hence that the final bill reflected 

"accommodations made by both sides." [FN14] Accordingly, any rule adopted by EPA must be consistent with the 

specific substantive provisions enacted by Congress as a result of that process. 33 U.S.C. § 1251(a). It is especially 

important to identify statutory authorization in a case such as this one, where the proposed rule would conflict with two 

specific statutory provisions: Sections 301 and 303(c). 

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2. Section 303(c) Precludes Requiring that Antidegradation Policies be Adopted as a Component of State Water Quality 

Standards. 

Section 303(c) of the 1972 Amendments provides that "water quality standards" "shall consist" of just two elements: 

"designated water uses" and "water quality criteria." [FN15] This language precludes EPA from requiring States to adopt 

antidegradation policies or implementation procedures as part of their water quality standards. [FN16] 

This is confirmed by the procedure in Section 303(c)(2) and (3) for reviewing state-adopted water quality standards. 

Section 303(c)(2) provides that each water quality standard is to be developed and reviewed individually, on a case-bycase basis. Section 303(c)(3) then provides that each standard submitted by a State "shall thereafter be" the applicable 

standard unless the Administrator determines that that standard does not satisfy the requirements of the Act. [FN17] 

Together, these provisions leave no room for the Administrator to reject a water quality standard submitted by a State 

for any reason other than a deficiency in the two required components. There is no authority, in particular, for the 

Administrator to deny a state water quality standard on grounds that the State has failed to adopt a "Statewide 

antidegradation policy" or implementation procedures. 

EPA reached this same conclusion in 1975, on its own, when considering whether it could require States to adopt 

implementation plans as part of their water quality standards under the new statutory scheme established in 1972. The 

issue arose because the statute once required state water quality standards to include implementation plans, and some 

Regional Administrators wanted to carry those plans forward. 

Prior to 1972, the statute required that each "water quality standard" consist of two components ––water quality 

"criteria," together with "a plan for [their] implementation and enforcement." [FN18] As explained below, the 

antidegradation policy originally grew out of the implementation plan requirement. [FN19] But this requirement was 

eliminated in 1972 when the present Section 303(c) was enacted, and water quality standards were redefined at that 

time as consisting of just two elements––"designated water uses" and "water quality criteria" [FN20]––that did not 

include implementation plans. The House Report on the 1972 Act explicitly stated that implementation plans were 

intentionally omitted: 

Any standard revised or adopted after the enactment of the 1972 Amendments under subsection (c) shall consist of the 

use designation and the water quality criteria and will not include implementation plans as required by the Act as it 

existed prior to enactment of the 1972 Amendments. [FN21] 

Citing this report as well as the text of Section 303(c), EPA correctly concluded in 1975 that it lacked authority to require 

States to retain or revise implementation plans originally adopted under the 1965 Act. [FN22] It follows that EPA no 

longer can require that antidegradation policies and implementation plans be adopted as a component of state water 

quality standards. [FN23] 

3. Even if Section 303(d)(4) is Construed as Ratifying the Antidegradation Policy as it Existed in 1987, Legislative 

Ratification Would Not Authorize Further Rulemaking Consistent with the Proposed Amendment. 

The second source of authority identified in the preamble is the Water Quality Act of 1987, which added a reference to 

the antidegradation policy in Section 303(d)(4)(B) of the Act. The preamble contends that this reference not only 

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"confirms that an antidegradation policy is an integral part of the CWA," but also that it "explains the relationship of the 

antidegradation policy to other CWA regulatory programs." [FN24] 

As an initial matter, the reference to antidegradation in Section 303(d)(4)(B) appears to have been the result of a 

drafting error. The first clue is that the statute refers to the antidegradation policy without ever defining the phrase. The 

second is that the language used ––a reference to "the antidegradation policy established under this section"–– is not 

language that Congress would use to authorize creation of a policy in the first instance. The third is that early versions 

of the 1987 legislation did propose to codify the antidegradation policy within Section 303(c), [FN25] but this language 

was deleted before the bill was enacted. Putting these clues together, the best explanation for the reference in Section 

303(d)(4)(B) to "the antidegradation policy established under this section" is that it refers to portions of the bill that were 

deleted. 

But even if it is assumed that Congress did ratify the federal policy in 1987, this authority would only cover the policy as 

it existed in 1987. To the extent any change could be made at all, such changes would require independent statutory 

authorization. And on this point, it is significant that Congress in 1987 would have had no idea that the antidegradation 

policy could be used to establish effluent limitations in conflict with the standards adopted in Section 301. To the 

contrary, EPA clarified that this was not its intent in a guidance document issued in 1985, just two years before the 

Water Quality Act of 1987 was enacted. The 1985 guidance included the following question and answer relating to Tier 

2 review: 

IN HIGH QUALITY WATERS, ARE NEW DISCHARGERS OR EXPANSION OF EXISTING FACILITIES SUBJECT TO 

THE PROVISIONS OF ANTIDEGRADATION? 

Yes. Since such activities would presumably lower water quality, they would not be permissible unless the State finds 

that it is necessary to accommodate important economic or social development (Section 131.12(a)(2). In addition the 

minimum technology based requirements must be met, including new source performance standards. This standard 

would be implemented through the wasteload and NPDES permit process for such new or expanded discharges. 

[FN26] 

Based on this guidance, legislators reviewing the antidegradation policy in 1987 would have had no reason to believe 

that EPA would subsequently reinterpret the policy as requiring a plant-by-plant review of the minimum technologybased requirements established by rule to determine whether an even "less degrading" effluent limit should be 

imposed. 

4. Section 301 Precludes Requiring States to Use the Necessity Determination to Set Effluent Limits More Stringent 

than the New Source Performance Standards Established by EPA. 

To appreciate the conflict that is created when the antidegradation policy is used to set effluent limits, it may help to 

recall that the antidegradation policy was originally developed by the Department of Interior as a means to impose 

technology-based effluent limitations under the Water Quality Act of 1965. This is where the standards now codified in 

Section 301 originated. This part of the original antidegradation policy was revised when it was first promulgated as a 

rule in 1972: instead of requiring that POTWs employ "secondary treatment" and that all other dischargers utilize the 

"best practicable control technology," as the policy originally required, this language was revised in 1975 to require only 

the "highest statutory and regulatory requirements." This was done to reconcile the original antidegradation policy to the 

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new statutory scheme, and thus to avoid the conflict over standards that will be created if the proposed new paragraph 

(b)(ii) is adopted. This history is reviewed in detail below. 

a. The Original Purpose of the Antidegradation Policy Was to Impose Technology-Based Effluent Limitations to Protect 

High Quality Waters. 

The antidegradation policy was originally developed in 1968 to address short-comings in the Water Quality Act of 1965, 

which attempted to control pollution solely by establishing water quality standards. 

The basic concept of the 1965 Act was for States to establish water quality standards and then to develop 

implementation plans to determine how to meet them. Each state was required to develop "water quality standards" 

consisting of two elements: "water quality criteria," and "a plan for their implementation and enforcement." [FN27] 

The Federal role was very limited. The main responsibility of the agency created to administer the act, the Federal 

Water Pollution Control Administration ("FWPCA"), was to review state water quality standards and to resolve interstate 

disputes. FWPCA could only intervene to abate a polluting discharge if it could be proved that the discharge was 

causing the receiving water to violate the applicable ambient criteria. [FN28]

 This statutory scheme left high quality waters without protection. The FWPCA had no means to prevent such waters 

from being degraded to the minimum standard. In fact, because dischargers were not required to obtain a permit or to 

adhere to any uniform effluent limits, the water quality standards approach actually created a strong incentive for 

polluting industries to relocate to pristine waters––the more assimilative capacity the better––to avoid regulation. 

This issue became known as the "degradation issue," and the "antidegradation policy" was developed as a creative, 

administrative solution to the problem. In 1968, Stewart Udall, Secretary of the Department of Interior, issued a 

guidance document declaring that States would be required to adopt "antidegradation policies" as part of the 

implementation plan component of any water quality standard submitted for approval under the 1965 Act. [FN29]

 The original policy required all new and expanded discharges into high quality waters utilize "the highest and best 

degree of waste treatment available under existing technology." Secretary Udall explained that, "in practice, we are 

seeking ... a commitment in standards' implementation plans to secondary treatment for all municipal wastes" and an 

"equivalent degree of treatment or control" for industry. [FN30] The Secretary often referred to this standard in shorthand as requiring "best practicable technology." [FN31] 

b. The Federal Water Pollution Control Amendments of 1972 Codified the Effluent Limitations Originally Developed as 

part of the Antidegradation Policy. 

Notwithstanding its decision not to impose effluent standards in 1965, [FN32] Congress codified large parts of the 

antidegradation policy in Section 301 when it enacted the Federal Water Pollution Control Act Amendments of 1972. 

The 1972 Amendments carried the water quality standards approach forward while supplementing it with a system of 

uniform national effluent limitations based on those developed as part of the antidegradation policy-secondary treatment 

for POTWs and "best practicable treatment" for all others. 

Importantly, however, Congress chose to implement this new effluent standards program through uniform national 

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rules, rather than requiring the determinations be made plant-by-plant. This was done to ensure uniformity and 

efficiency. Indeed, the sponsor of the Senate bill, Senator Muskie, identified "uniformity" as one of its three essential 

features. He explained: 

As far as uniformity and finality are concerned, the conference agreement provides that each polluter within a category 

or class of industrial sources will be required to achieve nationally uniform effluent limitations based on "best 

practicable" technology no later than July 1, 1977. This does not mean that the Administrator cannot require compliance 

by an earlier date; it means that these limitations must be achieved no later than July 1, 1977, that they must be 

uniform, and that they will be final upon issuance of a permit....[FN33] 

Senator Muskie further explained that it was important to implement this standard through uniform national rules 

because Congress wanted to ensure that all permittees within a class or category would experience the same hardship, 

and that none would gain a competitive advantage as a result of any inconsistency. Equally important was the desire of 

Congress "to avoid imposing on the Administrator any requirement to consider the location of sources within a category 

or to ascertain water quality impact of effluent controls, or to determine the economic impact of controls on any 

individual plant in a single community." [FN34] 

c. EPA Deleted Effluent Standards from the Antidegradation Policy in 1975 to Avoid a Conflict with the Statutory 

Scheme Established in 1972. 

When EPA first codified the antidegradation policy in 1975, it kept the original language, except that it made one very 

important change: the requirement in the original policy that new and expanded discharges into high quality waters 

utilize "highest and best control technology available" was deleted and replaced with a requirement to achieve the 

"highest statutory and regulatory standards." [FN35] The obvious purpose of this change was to avoid any conflict with 

the new statutory standards established by Congress in Section 301. [FN36] 

d. By Focusing the Necessity Determination on Effluent Limits, the Proposed Amendment Creates a New Effluent 

Standard in Conflict with Section 301. 

Fundamentally, the proposed amendment to the antidegradation policy would reestablish the conflict that EPA avoided 

by amending the policy before promulgating it as a rule in 1975. The proposed amendment would establish a new 

standard for effluent limitations in conflict with the uniform national rules promulgated pursuant to Section 301. 

It is unclear how the new standard that EPA is proposing would differ from the original antidegradation standards now 

codified in Section 301, but it is clear EPA does intend to require selection of "less degrading" effluent limits whenever 

such limits are identified through the alternatives analysis. This would render new source performance standards under 

Section 301 largely superfluous, and it would also upset the careful balance that Congress struck when it selected the 

standards it chose to codify in Section 301. It would also violate Congress' directive that the resulting standards were to 

be implemented through uniform national rules––not only to ensure uniformity within each category of point source, but 

also to avoid the inefficiency that would result from requiring that these determinations be made on a plant-by-plant 

basis. [FN37] 

[FN12] Water Quality Standards Regulatory Clarifications; Proposed Rule, 78 Fed. Reg. at 54526. 

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[FN13] Id. 

[FN14] Statement of Senator Muskie, floor manager of the conference report and Chair of the Subcommittee on Air and 

Water Pollution, reprinted in 1 Legislative History of the Water Pollution Control Act Amendments of 1972, p. 162 

(Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1 (Jan. 

1973) (hereinafter "1972 Leg. Hist."). 

[FN15] 33 U.S.C. § 1313(c)(2). This sub-paragraph provides in full: (2)(A) Whenever the State revises or adopts a new 

standard, such revised or new standard shall be submitted to the Administrator. Such revised or new water quality 

standard shall consist of the designated uses of the navigable waters involved and the water quality criteria for such 

waters based upon such uses. Such standards shall be such as to protect the public health or welfare, enhance the 

quality of water and serve the purposes of this chapter. Such standards shall be established taking into consideration 

their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, 

industrial, and other purposes, and also taking into consideration their use and value for navigation. 

[FN16] See National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661 (2007) (holding that where 

"statutory language is mandatory and the list exclusive," EPA lacks authority to develop additional requirements). 

[FN17] 33 U.S.C. § 1313(c)(3). 

[FN18] The Water Quality Act of 1965 provided as follows: If the Governor of a State or a State water pollution control 

agency files, within one year after the date of enactment of this subsection, a letter of intent that such State, after public 

hearings, will before June 30, 1968, adopt (A) water quality criteria applicable to interstate waters or portions thereof 

within such State, and (B) a plan for the implementation and enforcement of the water quality criteria adopted, and if 

such criteria and plan are established in accordance with the letter of intent, and if the Secretary determines that such 

State criteria and plan are consistent with paragraph (3) of this subsection, such State criteria and plan shall thereafter 

be the water quality standards applicable to such interstate waters or portions thereof. Water Quality Act of 1965, Pub. 

L. 89-234 § 5(a), 79 Stat. 908 (Oct. 2, 1965) (emphasis added). Paragraph (2) of that same provision provided a 

mechanism for the federal government to promulgate standards when States failed to do so. Id. 

[FN19] N. William Hines, National Water Commission, Public Regulation of Water Quality in the United States 225 

(1971) (describing the antidegradation policy as the product of "administrative embroidery" on the implementation plan 

requirement). 

[FN20] 33 U.S.C. § 1313(c)(2). 

[FN21] H. Rept. No. 92-911, 92nd Cong. 2d. Sess. (1972), reprinted in 1972 Leg. Hist. at 105 (emphasis added). See 

also Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 290 n. 45 (D.C. Cir. 1981) (confirming that standards 

revised under Section 303(c) do not need to include implementation plans). 

[FN22] See Memo from G. William Frick, Assoc. General Counsel, US EPA, to D. Snyder & J. Green, Regional 

Administrators, US EPA (Feb. 3, 1975) at 6. 

[FN23] Note that 303(a) provided for the retention of all water quality standards established pursuant to the 1965 Act. 

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Because all 50 states had included antidegradation policies in their water quality standards prior to 1972, this section 

has sometimes been cited as continuing authority for the antidegradation policy. However, this authority expired a long 

time ago, because it lasted only until new or revised standards were adopted pursuant to Section 303(c). In any event, 

Section 303(a) clearly would not authorize EPA to require States to amend the policies that existed prior to the 1972 

Amendments. 

[FN24] Water Quality Standards Regulatory Clarifications; Proposed Rule, 78 Fed. Reg. at 54526. See also PUD No. 1 

of Jefferson County v. Washington Department of Ecology, 511 U.S. 700, 705 (1994) ("A 1987 amendment to the Clean 

Water Act makes clear that § 303 also contains an ‘antidegradation policy.'"). Note that, while the Supreme Court did 

cite Section 303(d)(4) in PUD No. 1 as evidence that "Congress explicitly recognized the existence of ‘an 

antidegradation policy established under [Section 303],' " the Court stopped short of opining about the effect of this 

recognition. The Court did not have to do so in that case, because EPA's authority to mandate antidegradation policies 

was not an issue. The issue in that case was just the opposite: the State of Washington had embraced the 

antidegradation policy, and had relied upon it to impose conditions on a federal permit, and the question presented to 

the Court was whether a State's conditioning under Section 401 included authority to impose conditions arising from the 

a state antidegradation policy. Given that context, there was no need for the Court to inquire whether EPA could require 

states to maintain their antidegradation policies, and indeed the issue was not briefed. 

[FN25] See, e.g., S. Rep. No. 98-233 (Sept. 19, 1983) at 18, reprinted in 3 A Legislative History of the Water Quality Act 

of 1983, at 2073, 2094 (1988). The amendments to section 303(c)(2) also codify a portion of the existing water quality 

standards regulations required by current law, under which States must implement an antidegradation policy which 

would assure that existing uses and the level of water quality necessary to support those existing uses shall be 

maintained and protected . . . . 

[FN26] Questions and Answers on: Antidegradation, reprinted as Appendix G to the Water Quality Standards Handbook 

(EPA-823-B-12-002; 2d Ed., Mar. 2012) (available at: 

http://water.epa.gov/scitech/swguidance/standards/upload/2002_06_11_standards_handbook_handbookap pxG.pdf) 

(emphasis added). See also Antidegradation Policy; Water Quality Standards; Availability, 50 Fed. Reg. 34546 (Aug. 

26, 1985). 

[FN27] Pub. L. 89-234 § 5(a), 79 Stat. 908 (Oct. 2, 1965). 

[FN28] See Pub. L. 89-234 § 5(a) ¶ 5, 79 Stat. 909 (Oct. 2, 1965). 

[FN29] U.S. Dept. of Interior, Federal Water Pollution Control Administration, Compendium of Dept. of Interior 

Statements on Non-degradation of Interstate Waters at 1-2 (Aug. 1968) (emphasis added). The guidance stated as 

follows: I have concluded that in order to be consistent with the basic policy and objective of the Water Quality Act a 

provision in all State standards substantially in accordance with the following is required: Waters whose existing quality 

is better than the established standards ... will be maintained at their existing high quality. These and other waters of a 

State will not be lowered in quality unless and until it has been affirmatively demonstrated to the State water pollution 

control agency and the Department of the Interior that such change is justifiable as a result of necessary economic or 

social development and will not interfere with or become injurious to any assigned uses made of, or presently possible 

in, such waters. This will require that any industrial, public or private project or development that would constitute a new 

source of pollution or an increased source of pollution to high quality waters will be required, as part of the initial project 

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design, to provide the highest and best degree of waste treatment available under existing technology, and, since these 

are also Federal standards, these waste treatment requirements will be developed cooperatively. 

[FN30] Id. at 10 (Hearings before Sen. Committee on Public Works, Mar. 27, 1968). 

[FN31] See id. at 10, 20, 38, 41, 43, 45, 50 & 51 (describing the policy as requiring the "best practicable treatment"). 

[FN32] See N. William Hines, National Water Commission, Public Regulation of Water Quality in the United States 233 

(1971). See also id. at 234: Nothing short of clairvoyance would have been required to predict that less than six months 

after Congress had rejected proposals for mandatory federal standards and uniform effluent standards in favor of a 

national system of receiving water standards principally established and enforced by the states, the federal agency 

delegated responsibility for implementing this program would announce guidelines instructing the states to adopt 

implementation plans requiring best practicable treatment and control of all wastes. 

[FN33] See Statement of Senator Muskie, floor manager of the conference report and Chair of the Subcommittee on Air 

and Water Pollution, reprinted in 1972 Leg. Hist. at 162. 

[FN34] Id. at 170. 

[FN35] Policies and Procedures for the State Continuing Planning Process, 40 Fed. Reg. 55334, 55341 (Nov. 28, 

1975). The rule stated in relevant part: Existing high quality waters which exceed those levels necessary to support 

propagation of fish, shellfish and wildlife and recreation in and on the water shall be maintained and protected unless 

the State chooses, after full satisfaction of the intergovernmental coordination and public participation provisions of the 

State's continuing planning process, to allow lower water quality as a result of necessary and justifiable economic or 

soical [sic] development. In no event, however, may degradation of water quality interfere with or become injurious to 

existing instream water uses. . . . Further the State shall assure that there shall be achieved the highest statutory and 

regulatory requirements for all new and existing point sources and feasible management or regulatory programs 

pursuant to section 208 of the Act for nonpoint sources, both existing and proposed. 

[FN36] EPA made minor amendments to the antidegradation rule in 1983, but explained that these changes "were 

generally intended to clarify the policy with no change in coverage or effect." See Water Quality Standards Regulation; 

Proposed Rule, 63 Fed. Reg. 36742, 36779 (July 7, 1998); see also Water Quality Standards Regulation; Final Rule, 48 

Fed. Reg. 51400, 51402-03 (Nov. 8, 1983) (explaining its decision to retain the existing antidegradation policy while 

making minor amendments to clarify certain aspects of the policy). No further changes have been made since 1983. 

[FN37] See Statement of Senator Muskie, floor manager of the conference report and Chair of the Subcommittee on Air 

and Water Pollution, reprinted in 1972 Leg. Hist. at 162-70. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

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7.m: Section A 

7.e.ii 

Comment ID 0231-A2.001.025 

Author Name: Sanderson Stuart 

Organization: The Colorado Mining Association 

Antidegradation (s. 131.121) 

Generally, the proposed revisions to the antidegradation section go too far in transferring the responsibility of approving 

and implementing antidegradation from the States and Tribes to EPA. Requiring EPA approval for all antidegradation 

methods and policies as specified would be an extensive process and would impede States/Tribes from applying 

antidegradation policies while awaiting EPA authorization. EPA's proposal more importantly does not take into account 

that States currently have differing antidegradation policies that have been developed for their state-specific situations. 

Proposed language eliminates the flexibility that States/Tribes currently employ to address their own unique scenarios. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section D 

Comment ID 0237-A2.001.005 

Author Name: Tucker James 

Organization: Idaho Power Company 

There is no legal basis for EPA to dictate how states should implement their water quality standards. As long as the 

antidegradation program is being implemented, it should not be an EPA concern whether it is done under a state rule, a 

state policy or a state guidance document. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section A 

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Comment ID 0243-A2.001.008 

Author Name: Daniels Zane 

Organization: Ohio Coal Association 

Antidegradation Implementation (Section 131.12) 

A basic premise of the CWA is that USEPA sets minimum water quality standards but allows the States latitude to 

design their own programs to meet their own needs. One area in which the States have traditionally been allowed 

flexibility is the antidegradation analysis required for any new or expanded discharge, to assure that high quality waters 

are not degraded. The Proposed Rule curtails this flexibility in significant ways. In addition, USEPA characterizes its 

proposal in the Proposed Rule to add language to 40 CFR 131.5(a) as "'describing' USEPA's authority to review and 

approve or disapprove" antidegradation policies. 78 Fed.Reg. 54525. Despite this statement, USEPA lacks the statutory 

authority to specifically approve or disapprove of antidegradation policies under the CWA. While this alone is fatal to 

this aspect of the Proposed Rule, USEPA's stated justification for the Proposed Rule is also misleading. USEPA 

justifies its power-grab by stating, without any citation to any legal or scientific authority, that "the nation's waters face 

an increasing degree of stress from anthropogenic influences" and that "[t]herefore, maintenance and protection of high 

quality waters has never been more important." 78 Fed. Reg. 54526. In contrast, USEPA itself has trumpeted the 

success of the CWA. See e.g. http://water.epa.gov/polwaste/wastewater/treatment/wquality_index.cfm (noting 

improvements in dissolved oxygen in the nation's waterways since the passage of the CWA). Given this success, Ohio 

Coal questions the need for additional regulatory clarifications that do nothing but add additional administrative and 

technical complexity to an area of environmental regulation already fraught with time consuming regulatory 

requirements. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section A 

7.m: Section B 

7.m: Section D 

Comment ID 0243-A2.001.010 

Author Name: Daniels Zane 

Organization: Ohio Coal Association 

The antidegradation provisions in the Proposed Rule go beyond mere "clarification", and manage to be simultaneously 

overly vague and micromanaging. The federalism inherent in the CWA demands that states be permitted to manage 

their antidegradation programs without the Big Brother oversight of USEPA. This approach has served Ohio and the 

nation as a whole effectively for more than forty years, with consistently improving water quality and well-managed 

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programs balancing economic development and the protection, maintenance, and improvement of the nation's 

waterways. There is no need for USEPA to upset this balance in the name of "clarification." Ohio Coal believes that 

USEPA has not adequately justified why the antidegradation provisions of the Proposed Rule are necessary and 

encourages USEPA to reconsider the promulgation of this portion of the "clarifications." 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section D 

Comment ID 0244-A2.001.015 

Author Name: Loomis Marion 

Organization: Wyoming Mining Association 

Antidegradation 

In general, WMA believes that the antidegradation provisions transfer too much authority from the State to EPA. The 

proposed language eliminates the current flexibility that the State has to address the local scenarios unique to 

Wyoming. The CWA provides no specifics as to what elements must be contained in a State's antidegradation 

procedures. Accordingly, there is no basis to require States to implement antidegradation in a particular way. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section D 

Comment ID 0246-A2.001.003 

Author Name: Childs David 

Organization: Hopping Green & Sams on behalf of Florida Water Environment Association Utility Council 

EPA should withdraw its proposed amendments prescribing state antidegradation implementation policies 

The proposed rule includes new requirements for state antidegradation programs. The State of Florida has a 

longstanding antidegradation policy that is implemented via the state's approved NPDES program. [FN2] In accordance 

with EPA's regulations, FDEP's decision to adopt these implementation policies was purely discretionary. [FN3] EPA's 

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rule proposal muddles the discretionary nature of these implementation methods by prescribing the specific contents of 

a state implementation policy. [FN4] The preamble provides no explanation of the effect of this proposed language on 

existing approved implementation policies, and it further provides no policy rationale for EPA vesting itself with this new 

authority over the details of state implementation methods. This rule proposal thus needlessly calls into question the 

continuing viability of Florida's approved implementation methods, despite the state's proven track record. The adoption 

of the proposal would also have an unintended chilling effect on future state efforts to develop improved and innovative 

policies. These outcomes are contrary to the states' primacy in the implementation of the Clean Water Act. The FWEA 

Utility Council recommends that EPA not finalize these proposed mandates in 40 C.F.R. § 131.12. 

[FN2] See FDEP Rules 62-4.242(1); 62-302(12), (17), (18), F.A.C. (detailing state "public interest" 

considerations for new and expanded discharges and also requiring an alternatives analysis for 

domestic wastewater treatment and industrial discharges). 

[FN3] 40 C.F.R. § 131.13 ("States may, at their discretion, include in their State standards, policies 

generally affecting their application and implementation, such as mixing zones, low flows and 

variances....") (Emphasis added). 

[FN4] Proposed 40 C.F.R. § 131.12. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section A 

7.m: Section D 

Comment ID 0248-A2.001.013 

Author Name: Jellerson David 

Organization: Mosaic Fertilizer LLC 

Moreover, including anti-degradation implementation plans as elements of water quality standards needlessly increases 

federal intrusion into a role expressly delegated to the states by the Clean Water Act. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section D 

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Chapter 2 - Comment Documents Antidegradation 

Comment ID 0252-A2.001.026 

Author Name: Fry Eric 

Organization: Peabody Energy 

Generally, the proposed revisions to the antidegradation section go too far in transferring the responsibility of approving 

and implementing antidegradation from the States and Tribes to EPA. Requiring EPA approval for all antidegradation 

methods and policies as specified would be an extensive process and would impede States/Tribes from applying 

antidegradation policies while awaiting EPA authorization. EPA's proposal more importantly does not take into account 

that States currently have differing antidegradation policies and implementation approaches that have been developed 

for their state-specific situations. Proposed language eliminates the flexibility that States/Tribes currently employ to 

address their own unique scenarios. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section D 

Comment ID 0257-A1.001.006 

Author Name: Harpole Chad 

Organization: Kentucky Chamber of Commerce 

Antidegradation -- 40 CFR 131.12 

1. Lack of Statutory Authority 

Under EPA's proposed changes to 40 CFR 131.12, EPA would establish new limitations and requirements for 

classifying waterbodies for antidegradation purposes and would specify the type of antidegradation analysis, including 

technology-based reviews and alternative analyses, that would be required to be implemented by states as part of their 

water quality standards. Concerns with EPA's substantive antidegradation proposals are discussed in more detail 

below. However, the Chamber questions whether EPA has statutory authority to require states to adopt specific 

antidegradation procedures and substantive review standards. To our knowledge, antidegradation policies were not 

even mentioned in the Clean Water Act until 1987 when an amendment to CWA Section 303(d)(4)(B) added a provision 

that allowed effluent limitations in NPDES Permits to be changed for waters attaining designated uses "only if such 

revision is subject to and consistent with the antidegradation policy established under this section." Section 303 of the 

Act is focused on state water quality standards and programs, not programs to be developed by EPA. A plain reading of 

this provision indicates it does not authorize EPA to develop new antidegradation policies or standards and to impose 

those obligations on states. In fact, the only provisions in the Clean Water Act that authorize EPA to develop "guidance" 

for "antidegradation policies" and implementation procedures are in Section 118(c)(2) that applies to the Great Lakes. 

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Chapter 2 - Comment Documents Antidegradation 

The complete lack of similar authorization in the Act for EPA development of antidegradation policy for other state 

waters indicates no such authority exists. Moreover, Congress has not established any standards against which EPA 

promulgated antidegradation procedures and standards could even be judged to ensure they are reasonable and 

consistent with Congressional intent. Finally, the proposed antidegradation provisions go well beyond any EPA policy 

that existed in 1987 when the reference to "the antidegradation policy established under this section" was added to 

Section 303(d)(4)(B) of the Clean Water Act. Therefore, the newly proposed revisions to the antidegradation provisions 

of 40 CFR 131.12 represent an evolving increase in the stringency of antidegradation procedures and standards that 

usurp state authority without statutory authorization. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section A 

7.m: Section D 

Comment ID 0261-A2.001.008 

Author Name: Bartlett Drew 

Organization: Florida Department of Environmental Protection 

IV. Proposed Revisions to § 131.12 (Antidegradation Policy and Implementation Methods). 

1) Implementation Methods. 

As noted in our previous comment on proposed revisions to § 131.5, the proposed regulations need to clarify what 

implementation methods would be considered consistent with § 131.12(a). Additionally, it does not appear that EPA has 

the authority to include in § 131.12(a)(2) the provision related to best management practices (BMPs) for nonpoint 

sources. If EPA is going to pass regulations requiring implementation of BMPs for nonpoint sources, the Agency should 

cite the CWA authority underpinning the regulation. As FDEP cannot find said authority, we presume that this regulatory 

reference is in the context of a State voluntarily choosing to expand its antidegradation program to cover nonpoint 

sources. However, if that presumption is correct, EPA should add text to clarify the point or delete the reference to 

BMPs for nonpoint sources. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.e.ii 

7.l 

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Chapter 2 - Comment Documents Antidegradation 

Comment ID 0262-A2.001.018 

Author Name: Rawlings Laurent 

Organization: Home Builders Association of Kentucky 

Antidegradation (Section 131.12) 

The proposed revisions within this section display a stunning desire for agency control in both approval and 

implementation of antidegradation from the Commonwealth of Kentucky to the EPA. Established Water Quality 

Standards, it is clear, in the Clean Water Act, are the responsibility of the States, and EPA has no reason and is not 

authorized in any form or fashion to insert itself into the antidegradation process. There exists no legal basis for EPA to 

dictate how the state of Kentucky, an authorized state, should implement its Water Quality Standards. Seeing that an 

antidegradation program is currently being implemented - not under which method, be that under a State rule, policy or 

guidance document - should be EPA's focus. 

Response 

For response to this comment, see the following response essay(s): 

7.m 

7.m: Section D 

Comment ID 0280-A2.001.007 

Author Name: Aspatore Amanda 

Organization: National Mining Association 

Antidegradation Implementation 

Alternatives Analysis 

EPA is proposing to require states and tribes to conduct an alternatives analysis in order to support decision-making on 

whether to authorize limited degradation of high quality waters. NMA believes this requirement is outside the scope of 

EPA's authority, will lead to litigation, and is so broad as to be unworkable. As an initial matter, examining specific 

alternatives or requiring additional information from permittees is not a requirement of the CWA, and as such EPA has 

no authority to mandate that states do so. While EPA references the analysis required for the Great Lakes in Appendix 

E of 40 C.F.R. Part 132, that provision is not applicable to dischargers outside of the Great Lakes watershed, and at 

any rate the analysis that EPA envisions in this proposal includes review of alternatives well beyond looking at available 

treatment technologies. Specifically EPA suggests that states include review of such factors as process changes, 

project scale reduction, and location changes, as well as consider potential impacts beyond those to water quality, such 

as cross-media impacts like those to land. Not only would such a review be costly and time consuming, but it would also 

potentially force state agencies to step outside their areas of expertise and CWA authority. 

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Response 

For response to this comment, see the following response essay(s): 

7.m 

7.e.ii 

12.a 

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