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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, we 

believe, however, that specific changes in addition to those noted by EPA in the 

briefing materials are needed in some instances.

The notice 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 Public Interest Group v. EPA, 386 F. 3d 1070, 1087-

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

standards are standards). The implementation methods, particularly for 

antidegradation reviews, often determine permit terms. Certainly, 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 quality standards rules to explicitly acknowledge that implementation 

procedures significantly affecting 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 Stewardship 

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 Community 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 Interstate 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

Santuario 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.org
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must establish specific minimum requirements for inclusion in implementation procedures.

In particular, EPA should establish minimum criteria and require in its regulations that states 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 requirements, 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 water 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.

 The requirement that, 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 source 

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 that 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 important social or economic development and the method

for making that Tier 2 determination.

 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 analyses. 

 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 source discharges in making

permit-specific determinations about potential degradation.
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 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 

inclusion, 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 deprived 

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, is 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 provide 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 clear 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 demonstrated 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, that should be reasonably 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 analysis as not being amenable to remediation. Similarly, for recreational 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, water bodies considered too shallow to support adult swimming may be appropriate for 
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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 quality. 

C. Triennial Review

A more rigorous triennial 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 practices among the states are unreasonably inconsistent

and comprehensive triennial reviews are lacking. Accordingly, in order to fulfill the goals of the 

Clean Water Act, regulations should require states/tribes every three years to allow public 

comment on all of the states/tribes water quality standards. The public notice inviting public 

comment should make clear that the public may request revisions to all of the standards, 

including requests for the adoption of new standards covering issues not previously addressed by

that state or tribe. 

The revised regulation should require states/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 providing 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 threeyear cycle and should include clear requirements for timely action in responding to public 

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

process occurs on a three-year cycle. Finally, triennial review submissions to EPA for review 

should include reasonable documentation of the public input process and the bases for the 

treatment by the state or tribe of that input. 

Your consideration of these comments is appreciated.

Sincerely,

Annalisa Peace

Executive Director