August 30, 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, DC 20460 

Re: WQS Regulatory Change Considerations 

Dear Mr. Gardner: 

The Kansas Department of Health and Environment (KDHE) appreciates the opportunity to 

comment on the water quality regulatory changes EPA is considering. Our comments on the 

individual proposed changes follow: 

1. Antidegradation Implementation Measures - We generally do not support requiring 

antidegradation implementation requirements being adopted in state water quality standards 

(WQS). States have a variety of ways of providing implementation instruction to regulated 

entities in their respective states – continuous planning process documents, NPDES 

regulations, stand alone guidance documents, etc. Requiring those procedures to be adopted 

as WQS may completely change how implementation would be handled. For instance, most 

states have to adopt WQS into state regulations. That process alone can be time consuming 

and contentious. 

 As state regulation, there would generally be less flexibility in wording and application of the 

procedures. In Kansas, regulations have to be written in a very specific format with very 

specific legalistic language. The Kansas regulations do not allow for the use of the words 

“may” and “could”, but rather “must” and “shall”. Our Attorney General believes regulation 

should only contain those items an entity “must” do, otherwise it does not belong in 

regulation. We see antidegradation implementation as being more in the vein of guidance, 

not mandatory regulation. However, since Kansas WQS have to be adopted in regulation, 

antidegradation implementation would have to be adopted into regulation if the proposed 

change is promulgated. 

 Second, EPA is only talking about identifying the minimum elements without guidance on 

how the elements might be addressed. If there is a regulation change mandating 

antidegradation implementation be included in state WQS, lack of guidance or bounds on 

what regional offices can demand of states will undoubtedly lead to uneven application of the 

antidegradation rule. 

CURTIS STATE OFFICE BUILDING, 1000 SW JACKSON ST., STE. 420, TOPEKA, KS 66612-1367 

Voice 785-296-5504 Fax 785-296-0086 
Letter to Thomas J. Gardner 

August 30, 2010 

Page 2 of 4 

 Lastly, EPA has previously stated that antidegradation has not been implemented well across 

the country. Thus, many states will be entering a new arena when initially implementing 

antidegradation policies. It is unlikely states or EPA will craft the perfect implementation 

rules the first time around and will run into roadblocks and other impediments upon initial 

implementation. Therefore, if antidegradation implementation is to ultimately be locked into 

regulation, states should have the opportunity to “test drive” implementation and adapt 

policies as necessary prior to making the mandatory leap to regulation. 

2. Administrator’s Determination – It does not seem proper that EPA is writing a selfdirecting regulation – directing itself on how to express an Administrator’s determination. If 

this is to be in regulation, it should only be as a definition. It would seem far easier for EPA 

to simply include a statement in their letters dealing with WQS stating the letters are or are 

not a determination. That should be Agency policy and not regulation. 

3. Designated Uses - EPA needs to clearly think through the issue of “highest attainable use”. 

The proposal seems to assume states have tiers or subsets within each of their broad use 

categories. That is not always the case. For instance, many states have a singular recreation 

use. If that use is removed via UAA, there is no “next highest” recreation use. Similarly, 

states with only warm water fisheries may only have a singular aquatic life use. If EPA’s 

concept is that states would develop subsets of all uses so a “next highest use” will be 

available, that is time and labor intensive and a largely hidden cost imbedded in the proposal. 

4. Variances – EPA needs to be more specific in what it means by this proposal. If it is a 

general statement that variances have to go through a public process, we have no problem 

with that specific concept. However, if EPA proposes to delve into more detail regarding 

what can and cannot be considered a variance, singular methods for adopting variances, etc., 

we have concern. Locking in too much detail in regulation always precludes the use of new 

and innovative approaches that were not considered when the regulation was developed. 

 For instance, one of the more interesting variance concepts we have heard about (from Tim 

Conner with EPA) is variance by statute that is being considered in Montana. As we 

understand, variance provisions would be included in state statute to provide variances to 

small communities unable to afford treatment process to meet strict NPDES nutrient limits. 

This type of streamlined variance process, as opposed to a facility-by-facility variance, will 

be a must as EPA moves down the path of adopting criteria so stringent that small 

dischargers will not be able to afford treatment to meet WQBELs based on the criteria – 

specifically ammonia and nutrients. 

 Additionally, we have heard some at EPA Region 7 state that variances for individual 

facilities must be adopted as water quality standards changes. Again, this will be a crushing 

task if and when the proposed ammonia criteria and expected nutrient criteria are applied to 

the permits of small dischargers. These types of situations call for a streamlined process. 

Therefore, we request any variance regulation maintain sufficient flexibility to allow for 

innovative, streamlined variance processes. 
Letter to Thomas J. Gardner 

August 30, 2010 

Page 3 of 4 

5. Triennial Reviews – We question EPA’s authority to make either of the proposed regulation 

changes – mandatory solicitation of input on scope and mandatory evaluation of any and all 

standards against any information that has become available. Section 303 (c)(1) of the Clean 

Water Act requires the Governor of a state or the state water pollution control agency to hold 

triennial reviews and the results made available to EPA. There is no provision directing EPA 

to establish the framework for a state triennial review. Neither is there a provision for EPA 

to perform the review in lieu of the state even if the state does not perform the review. The 

Act is clearly speaking to the states, and it neither dictates how states perform the review, nor 

the content of the review. Therefore, it is inappropriate for EPA to dictate how a state 

undertakes the triennial review via a federal regulation. 

 The Clean Water Act clearly sets out water quality standards and the periodic review of those 

standards as state functions. The Act gives EPA authority to approve or disapprove 

standards the states develop, but it does not give EPA approval of the Triennial Review 

process. In Kansas, we have always viewed the Triennial Review as a conversation between 

state government and the citizens it serves. Based on that conversation, KDHE can choose to 

change standards. Any changes go through a formal rule making process and ultimate 

submission to EPA. EPA has the authority to either approve or disapprove the proposed 

standards, however we do not believe EPA has the authority to mandate how a state arrives at 

the decision to change a standard. 

6. Updates To Reflect Court Decisions – 

A. Definition of Water Quality Standard – it is difficult to comment on this proposal without 

knowing what EPA currently considers a water quality standard. There needs to be 

significant discussion on what EPA believes is a water quality standard and the 

ramifications of making that determination. For instance, if EPA defines 

“implementation documents” as water quality standards, it usurps the issue discussed in 

the first item regarding whether antidegradation implementation should specifically be 

considered a mandatory water quality standard. 

B. Authorization of Compliance Schedules – As long as the change only clarifies that water 

quality standards must contain a provision allowing for the use of compliance schedules, 

we have no concern. If the change begins to go into more detail as to what a schedule 

should look like, we would have to see the specific language or be given some idea as to 

the nature of the additional changes in order to comment. 

C. States Must Submit Public Participation Records – We typically submit our response to 

comment documents to EPA. We believe that is sufficient. We do not believe EPA 

needs every comment letter, regulation hearing transcript, public meeting transcript, etc. 

Nor do we believe EPA has the authority to approve or disapprove a state’s response. 

Regardless, we question what EPA is proposing to do with the information received. We 

do not believe EPA should be making value judgments on the perceived quality or 
Letter to Thomas J. Gardner 

August 30, 2010 

Page 4 of 4 

quantity of public participation, since public participation is primarily driven by state 

statutory and regulatory requirements. 

As a final overall comment, we believe EPA should estimate the costs of any proposed 

regulatory changes. Resources for implementation of the proposed changes are not addressed in 

any of the documents EPA has provided. We are concerned that EPA is obligating states to 

significantly more workload without additional resources. The Office of Science and 

Technology needs to work with other Office of Water (OW) staff and ECOS in their current 

effort to update the “Baby Gap” model which addresses the resources required for states to 

manage Clean Water Act program workload. Previous efforts have shown that states have about 

half of the staff needed to implement those programs. The new demands on state resources that 

would be brought about by these changes, as well as other demands from OW and the Office of 

Compliance and Enforcement Assurance (OECA) would significantly exacerbate the resource 

gap. 

Please contact me if you have questions concerning these comments. 

 Sincerely, 

 Michael B. Tate, Chief 

 Technical Services Section 

 mtate@kdheks.gov

C - Karl Mueldener, KDHE 

 Tom Stiles, KDHE 

 Yan Wang, KDHE 

 Sean Roland, ASIWPCA