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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 (July 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) variances; (5) triennial reviews; and (6) revisions to 

reflect court decisions. The precise scope and nature of EPA’s “targeted 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 energy 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. shareholder-owned energy companies, international affiliates, 

and industry associates. The National Rural Electric Cooperative Association is the association of 

nonprofit energy cooperatives supplying central station 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 standards 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 proceeded further with the rulemaking. As a matter 

of good government and fair process, UWAG believes 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 the 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 respectfully submit that EPA must provide a meaningful 

response to this earlier outreach effort before it proceeds with a new rulemaking covering the 

same or related areas of the water 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 those 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 meaningful 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@pseg.com), or Brooks Smith, counsel to 

UWAG (804-787-8086/bsmith@hunton.com). 

Sincerely, 

Brooks M. Smith 

29142.070273 EMF_US 32534428v2