1 September 10 , 2010

Thomas J. Gardner Office of Science and Technology (Mail Code 4305T) Office of Water U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW Washington, D.C. 20460

Re: Comments of the Greater Edwards Aquifer Alliance for HQ

- OW

- 2010

- 0606

Dear Mr. Gardner

,
The Greater Edwards Aquifer Alliance is pleased to comment on the proposed
future rulemaking to revise the water quality standards regulation, HQ

- OW

- 2010

- 0606. Generally, we agree that many of the water quality standards regulations
that EPA is considering for revision should be revised. As noted below, w e believe, however, that specific changes in addition to those noted by EPA in the briefing materials are needed in some instances

.

The no tice states that comments are specifically requested in six areas

. In these
comments, we have provided input on only some of those issue areas

. A. Antidegradation

We believe that antidegradation implementation methods clearly are standards under existing law and that a state or tribe’s adoption or revision of such methods must be approved or disapproved by EPA under Section 303(c) of the Clean Water Act, 33 USC § 1313(c), whether or not the state or tribe chooses to call
them standards. See Florida Publi c Interest Group v. EPA , 386 F. 3d 1070, 1087

- 90 (11 th Cir. 2004)(regulatory changes that have practical effect of changes to standards are standards)

. The implementation methods , particularly for antidegradation reviews , often determine permit terms. Cer tainly, an implementation rule that has the effect of allowing unnecessary new loadings of pollutants into water bodies should be considered as much a standard as the state’s statement of general antidegradation policies. We support revision of the water q uality standards rules to explicitly acknowledge that implementation procedures significantly affect ing application of an antidegradation standard are part of the standard and must be formally adopted and submitted to EPA for approval. In addition, because of the critical role that implementation procedures play in determining if antidegradation protections are meaningful, EPA’ s rules Member Organizations

Alamo Group of the Sierra Club Aquifer Guardians in Urban Areas Austin Regional Sierra Club Bexar Audubon Society Boerne Together
Cibolo Nature Center Citizens Allied for Smart Expansion
Environmental Stewards hip Committees of the Episcopal Church of Reconciliation & Episcopal Diocese of West Texas Environment Texas First Universalist Unitarian Church of San Antonio Friends of Canyon Lake Fuerza Unida Government Canyon Natural History Association Hays Commu nity Action Network Helotes Heritage Association
Helotes Nature Center Hill Country Planning Association
Guardians of Lick Creek Kendall County Well Owners Association Kinney County Ground Zero Medina County Environmental Action Association
Northwest Inter state Coalition of Neighborhoods
OST 100
Preserve Castroville Preserve Lake Dunlop Association
Preserve Our Water

- Blanco County San Antonio Conservation Society San Geronimo Valley Alliance
San Marcos Greenbelt Alliance
San Marcos River Foundation
Santuari o Sisterfarm
Save Barton Creek Association Save Our Springs Alliance Scenic Loop/Boerne Stage Alliance Securing a Future Environment
Sisters of the Divine Providence
Smart Growth San Antonio
SEED Coalition
Texas Water Alliance West Texas Springs Alliance
Wildlife Rescue & Rehabilitation Wimberley Valley Watershed Association

PO Box 15618 San Antonio, Texas 78212 (210) 320

- 6294 www.AquiferAlliance.org2

must establish specific minimum requirements for inclusion in implementation procedures.

In particular, EPA should establis h minimum criteria and require in its regulations that state s and tribes explicitly set forth as part of the water quality standards :

 The method for ensuring that existing uses will be maintained and protected in compliance with Tier 1 antidegradation requ irements, including protection from impairments that involve pollution that may not be directly linked to changes in pollutant inputs

.

 The process of consideration of all reasonable alternatives to the proposed activity that would avoid the lowering of w ater quality as part of a Tier 2 antidegradation analysis

, including consideration of requirements for the permittee to facilitate implementation of
all cost

- effective and reasonable best management practices for nonpoint sources in the
relevant area

.

 Th e requirement th at, if the lowering of water quality is found necessary to accommodate important social or economic development after a Tier 2 analysis, the least polluting
reasonable alternative , including provision for implementation of off

- site nonpoint s ource controls, must be used with permit limits set accordingly.

 A process to ensure

, in the case of renewals of permits authorizing loadings above actual historical loadings

, that new standards made applicable since the last antidegradation
review for th at permit are considered in a new antidegradation review.

 The factors that will be considered in determining when a proposed polluting activity is necessary to accommodate i mportant social or economic development and the method for making that Tier 2 det ermination.

 A meaningful process for applying antidegradation reviews to Section 401 certifications and general permits that ensures, among other things, that cumulative impacts of individual authorizations under general permits are assessed and considered

.

 A procedure for clearly documenting the decision process employed in Tier 2 analys e s

.

 A clearly defined process for determining when reductions in water quality constitute
actionable degradation that establishes an enforceable and measureable standard for both project

- specific and cumulative impacts and that protects against loss in assimilative capacity

.

 The specific procedures for ensuring that the impacts of nonpoint source pollution are considered in addition to cumulative impacts of other point s ource discharges in making permit

- specific determinations about potential degradation

.3

 The manner and timing for the public to participate in the antidegradation review to ensure that public participation is meaningful and effective, which should involve
i nclusion, in notices of proposed actions, of a reasonable description of the bases for proposed determinations of whether degradation may occur including a description of cumulative changes in water quality from baseline conditions

.
In addition, 40 CFR 131 .12 should be revised to specify that Tier 2 antidegradation protections

are to be applied , at a minimum, on a use

- by

- use basis. For example, waters that have water quality above the minimum levels sufficient to support contact recreation should not be dep rived of protection of that higher quality because aquatic life uses may be adversely affected by other pollutants or activities . That type of use

- by

- use protection is essential in order to meet the objective “to restore and maintain the chemical, physical , and biological integrity of the Nation’s
waters.” 33 USC §1251 (a)

. The commonly used approach of applying Tier 2 protections on a water body basis, with the lowest level of use attainment determining the applicable tier for antidegradation protection, i s not adequately protective. Indeed, a parameter

- by

- parameter approach would seem to provide the best protection.

In addition , more direction is needed for making 40 CFR 131.12(a)(3) , dealing with outstanding national resource waters, more meaningful. At minimum, some formal nomination and periodic review process, coordinated with triennial reviews, is needed. For states or tribes that consistently decline to designate any outstanding national resource waters, the state or tribe should be required to provi de justifications for that decision during each triennial review process

, which might include a demonstration that a meaningful state

- based Tier 2 1⁄2 designation process exists that actually provides comparable levels of protection.

B . Uses

The law is cl ear that the CWA 101(a)(2) “fishable

, swimmable” uses are presumed to be
attainable unless otherwise demonstrated. However, we agree that it would be appropriate to set out, in rules, a requirement for ensuring that when a Section 101(a)(2) use is demonst rated not to be attainable, the “highest attainable use” closest to the full fishable

, swimmable goal is designated

.

The rules also should provide guidance about how to determine the “highest attainable use.” As to aquatic life uses, th at should be reas onably straight

- forward with a focus on supporting the healthy populations of the greatest possible diversity of naturally occurring species during as many seasons as possible given the limitations of the water body identified in the use attainability anal ysis as not being amenable to remediation

. Similarly, for recreation al uses, “highest attainable use” should include all of the uses not precluded by the limitations that are
not amenable to remediation. That hierarchy may be somewhat more involved because , for example, w ater bodies considered too shallow to support adult swimming may be appropriate for4

wading by children or may support kayaking during high flow periods, both of which pose risks of exposure by ingestion and merit similar levels of water qu ality

.

C . Triennial Review

A more rigorous t riennial review practice is needed in order to achieve compliance with the intent of Section 311 (c) of the Clean Water Act to ensure regular review and updating of water quality standards. The schedules and p ractices among the states are unreasonably inconsistent and comprehensive triennial reviews are lacking. Accordingly, i n order to fulfill the goals of the
Clean Water Act , r egulations sh ould require states/tribes every three years to allow public

comment on all of the states/tribes water quality standards. The public notice inviting public comment should make clear that the public may request revisions to all of the standards

, including requests for the adoption of new standards covering issues not previo usly addressed by
that state or tribe.

The revised regulation should require state s /tribes to provide full opportunity for public comment on suggested revisions and to respond , in writing, to comments requesting revised or
new standards

, including by pro viding an explanation for a decision not to move forward with a proposed revision. The regulation should go beyond mere acceptance of public input on a three

year cycle and should include clear requirements for timely action in respon ding to public

comment s or other input in order to ensure that a meaningful and complete triennial review

process occur s on a three

- year cycle. Finally, triennial review submissions to EPA for review should include reasonable documentation of the public input process and the b ases for the treatment by the state or tribe of that input.

Your consideration of these comments is appreciated.

Sincerely,

Annalisa Peace
Executive Director