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September 17, 2010 BROOKS M. SMITH

DIRECT DIAL: 804 • 787 • 8086

EMAIL: bsmith@hunton.com

FILE NO: 29142.070273

Water Docket U.S. Environmental Protection Agency

Mailcode: 2822T 1200 Pennsylvania Avenue, NW Washington, DC 20460

UWAG’s Comments on EPA’s WQS Plans

Dear Sir or Madam:

Utility Water Act Group (UWAG) 1 appreciates this opportunity to comment on EPA’s “plans to initiate a national rulemaking to make a limited set of targeted changes to EPA’s water quality standards regulation.” 75 Fed. Reg. 44930 (Jul y 30, 2010). Based on EPA’ s Federal Register Notice, listening sessions, and resource materials for those sessions, EPA appears to be focused on six specific areas of the water quality standards regulation: (1) antidegradation; (2) Administrator’s determination; (3) uses; (4) varian ces; (5) triennial reviews; and (6) revisions to reflect court decisions. The prec ise scope and nature of EPA’s “t argeted changes” will not be revealed until EPA publishes a proposed rule in the summer of 2011. As a result, these comments relate to process as opposed to substance.

1 UWAG is a voluntary, ad hoc, non-profit, unincorporated group of 214 individual energy companies and three national trade associations of ener gy companies: the Edison Electric Institute, the National Rural Electric Cooperative Association, and the American Public Power Association. The individual energy companies operate power plants and other facilities that generate, transmit, and distribute electricity to residential, commercial, industrial, and institutional customers. The Edison

Electric Institute is the association of U.S. sharehol der-owned energy companies, international affiliates, and industry associates. The National Rural Elect ric Cooperative Association is the association of nonprofit energy cooperatives supplying central sta tion service through generation, transmission, and distribution of electricity to rural areas of the United States. The American Public Power Association is the national trade association that represents publicly owned (municipal and state) energy utilities in 49 states representing 16 percent of the market. UWAG’s purpose is to participate on behalf of its members in EPA’s rulemakings under the CWA and in litigation arising from those rulemakings.Water Docket U.S. Environmental Protection Agency September 17, 2010 Page 2

At the outset, UWAG notes that many of the areas identified for attention now overlap with areas previously identified for attention in EPA’s advance notice of proposed rulemaking on possible revisions to the water quality standard s regulation. 63 Fed. Reg. 36742 (July 7, 1998) (“ANPRM”). EPA committed substantial public resources to the ANPRM, and interested stakeholders, like UWAG, were forced to commit substantial private resources to comment on the issues raised in the ANPRM. Despite this substantial investment in the rulemaking process, EPA never responded to public comments or proceed ed further with the rulemaking. As a matter of good government and fair process, UWAG be lieves that EPA has a duty to address and respond to those earlier public comments before proceeding with a new rulemaking covering the same or related areas of the water quality standards regulation. Unless and until EPA does so, the earlier public and private investment will be lost.

Likewise, some of the areas identified by EPA have been th e subject of extensive public outreach. For example, the designated use and variance provisions of EPA’s water quality standards regulation were the subject of a 2002 symposium, 2003 strategy document, 2004 plan, and 2004-2006 meetings with EPA regions, states and the public. During this outreach process, EPA solicited and received extensive input on designated use and variance issues but never responded to the input it received. We respectfu lly submit that EPA must provide a meaningful response to this earlier outreach effort befo re it proceeds with a new rulemaking covering the

same or related areas of the wa ter quality standards regulation.

In simplest form, EPA seems inclined to “start from scratch” on issues that have been the subject of earlier notice-and-comment proceedings. We respectfully submit that EPA cannot wipe the

slate clean and start over without acknowledging and addressing thos e earlier comments. If EPA had such authority, then it could systematically ignore public comments by repeatedly initiating new rulemakings on the same or related issues, forcing the public to constantly re-engage without ever receiving a meaningf ul response to, or reaction from , EPA. Such a result would defy both good government and common sense.Water Docket U.S. Environmental Protection Agency September 17, 2010 Page 3

If you have any questions, please feel free to contact Russ Furnari, Chair of UWAG's Water Quality Committee (973-430-8848/russell.furnari@p seg.com), or Brooks Smith, counsel to UWAG (804-787-8086/bsmith@hunton.com).

Sincerely,

Brooks M. Smith

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