Associa tion of State and Interstate 

\Vater Pollu tion Control Administra tors 

1221 COSSECIICU r A VI. NUl '\ \\ :·"' H 001\. • \\'ASIII,Cil 0\'. DC 2U!t1t• • IT I.· lol2.75£>.<lti0Ct • F:\X· 2ul.75tHJM.S • WWW.ASI\VI'CJ\.ORG 

Granta Nakayama 

Assistant Administrator for OECA 

USEPA Headquarters 

Ariel Rios Building 

1200 Pennsylvania Avenue, N. W. 

Mail Code: 2201A 

Washington, DC 20460 

November 15, 2007 

RE: OECA Response of September 12, 2007 to State Concerns Regarding Three Draft 

Enforcement Policies 

Dear Mr. Nakayama, 

On behalf of the Association of State and Interstate Water Pollution Control Administrators 

(ASIWPCA) I would like to thank you for being responsive and understanding many of the 

State and Interstate concerns related to the three draft enforcement policies; the Wet 

Weather SNC Policy, the NPDES Compliance Monitoring Strategy, and the ICIS-NPDES 

Policy Statement. We are requesting further clarification from your office regarding the 

desire to pursue a rule making approach for Rl DE as set forth in your September 12, 2007 

letter to ECOS. 

RIDE RULE 

States & Interstates are very interested in USEPA's desire to "pursue a rule making 

approach that will identify a full set of RIDE that implementing agencies of the NPDES 

program will be required to provide to the national program" as part of the ICIS-NPDES 

Policy Statement development. We agree that there are many benefits to taking a more 

comprehensive and formal approach to developing this list of national program data 

elements. However. we have several concerns if USEPA's intent is to actually pursue 

proposal of a RIDE rule. 

USEPA's pursuit of the rule making approach would ensure participation from a broader 

more diverse set of stakeholders. Further, the economic impact analyses will be more 

comprehensive than the analyses done previously and will be vetted through the Office of 

Management and Budget. A rule-making approach would also allow the Agency to spend 

further time with the ASIWPCA (draft) RIDE Data Collection suNey results, which we 

believe greatly informs this discussion regarding information States are already collecting. 

It is also possible that further work by the Integrated Project Team over the next few 

months will identify solutions for the concerns States have voiced regarding data 

exchange. A rule that would "require" State consistency for data sharing with the national 

system may appear to some to be an important benefit of proposing a RIDE rule. 

2~ I ('0:-<:-;EC"IICLT AVL:!\L.J: \' \\" Z"" H .llOit, • \\'ASIII:'\(i'l 0:'\. Ill' 2e>u;o • 1'1 '1 ZOl.75<o·06VCt • Ft\X: 202.75<>·060~ • WWW.ASIWPCA OR(i 
However, while transparency and broader stakeholder participation is generally a good 

thing, the diversity of the stakeholders along with the normal comment and review period 

timeframes could add months to the process. States would also be concerned that 

communication is often constrained during rule development by the formality of the 

process. There are few areas of the Clean Water Act where co-regulator collaboration is 

more necessary than NPDES program areas; difficulties in communication as the RIDE list 

is finalized would be detrimental to the final product. If RIDE is promulgated into rule, 

subsequent revisions to the RIDE rule will require formal rule making processes thus 

undermining the flexibility and opportunity to make the mid-course corrections originally 

intended. 

Probably the greatest concern for States relates to the third party lawsuits and petitions for 

withdrawal. By proposing and adopting a RIDE rule, authorized States are left in a 

precarious position as their data collection, data entry, data management, and data 

exchange with the national system will inevitably become targets of organizations seeking 

to attack the credibility of State programs. The unintended consequence of this rule could 

be more lawsuits, more petitions for withdrawal, more money spent on litigation, and more 

State programs at risk. 

We are requesting that greater clarity be provided to States regarding the intent of the 

Rl DE rule making approach. Further, we are hopeful that the Agency will continue to work 

with ASIWPCA and ECOS to consider and quantify the total resource implications needed 

for States to collect, analyze, and report the RIDE elements. This important aspect of rule 

making was not addressed in the September 12, 2007 letter. We thank you for your time 

and look forward to further communication on these issues. 

Sincerely, 

~:!h~h~/ Harry T. Stewart 

President 

CC: Marcus Peacock, peacock.marcus@epa.gov 

Ben Grumbles, grumbles.benjamin@epa.gov 

Lynn Buhl; buhl.lynn@epa.gov 

Jim Hanlon, Hanlon.Jim@epamail.epa.gov 

Lisa Lund , Lund. Lisa@epamail.epa.gov 

David Hindin, Hindin.David@epamail.epa.gov 

Betsy Smidinger, Smidinger.Betsy@epamail.epa.gov 

Kate Anderson, Anderson.Kate@epamail.epa.gov 

Steve Brown, ECOS, sbrown@sso.org 

ASIWPCA Membership 

IJ~ I CONNI:CTICLI AV~t-.Ll ' \V . .:. ""FlOOR. • WASIII:"\(i"Hl'.I>C 2Cl~;o • 1"1:1 · 202.75trO~•JO • 1'.\X: 202.756·0605 • WWW.ASIWPCA.ORG