September 13, 2010

Thomas J. Gardner Office of Science and Technology (Mail Code 4305T)

Office of Water U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460

Re: Docket ID No. EPA-HQ-OW-2010-0606 “Stakeholder Input: Revisions to Water Quality Standards Regulations”

Dear Mr. Gardner,

Thank you for the opportunity to respond to Stakeholder Input: Revisions to Water Quality Standards Regulations . Overall, there is concern that EPA is considering revisions to the Water Quality Standard s (WQS) regulations that could place a

tremendous burden on states and authorized tr ibes during a time of significant economic challenge and lack of sufficient resources. Many states and authorized tribes are struggling to fulfill their existing federal and state water quality standards requirements. Consideration should be given to the impl ementability of the proposed regulatory changes and whether they are truly necessa ry to accomplish the desired outcomes. Alternatively, EPA should consider developing and revising practical guidance to aid states and tribes in fulfilling the existing regulatory requirements. Additional EPA

technical and financial assistance to states a nd tribes in the water quality standards area would also greatly assist in fulfilling these requirements.

The following are specific comments on Stakeholder Input: Revisions to Water Quality Standards Regulations :

Antidegradation : Implementation is a complex pro cess which depends on site-specific conditions - a one-size-fits-all approach does not work in all cases. While we would support EPA reviewing our various implem entation procedures to determine the effectiveness of our antidegra dation program, we believe th at it is not necessary to incorporate all of these provisi ons into a State’s Water Quality Standards to allow for this D EPARTMENT OF E NVIRONMENTAL P ROTECTION

CHRIS CHRISTIE W ATER M ONITORING AND S TANDARDS BOB MARTIN

Governor 401 E. State Street, P.O. Box 409 Commissioner Trenton, New Jersey 08625-0409

KIM GUADAGNO Phone (609) 292-1623 Fax (609) 633-1276

Lt. Governor

New Jersey is an Equal Opportunity Employer l Printed on Recycled Paper and Recyclablereview. New Jersey has incorporated implem entation provisions into its Water Quality Management Planning Rules. Our experience is that our state must use words in its rulemaking such as “must” and “shall”, not “m ay” and “could” as apparently is allowed under the federal rules. This rulemaking di fference severely constrains a number of states. EPA should provide guidance rather than regulations rega rding antidegradation implementation procedures. The guidance sh ould be flexible enough for states and authorized tribes to establish implementa tion procedures based on state/site-specific conditions. In addition, states and authorized tribes should have the flexibility to implement antidegradation provi sions through other water progr ams and regulations such as planning rules, stormwater management rules, etc. EPA should also provide, as part of their guidance, examples of implementation measures approved and disapproved by EPA. Measures that were disappr oved by EPA should include reas ons for disapproval. This will provide states and authorized tribes assistance regarding what is considered acceptable when developing state-sp ecific implementation measures.

Administrator’s Determination : It is appropriate for the Administrator to make the

determination when states fail to take acti on. During current times when many states are experiencing substantial economic challenges and lack of sufficien t resources, the need

for the Administrator to act ma y be expected to increase. However, EPA should continue

to consult and coordinate w ith the states in a meaningful manner when setting statespecific standards.

Designated uses : Section 101(a)(2) of the Clean Wate r Act establishes a goal, wherever attainable, of water quality that provides for the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water. There are cases where water quality may meet the swimmable goals, but for practical and safety reasons (e.g. shipping channels), the State does not want to designate waters for the swimming use. EPA needs to consider these types of conditions in pr oposing any changes to require States to designate the “highest attainable use”.

Variances : EPA should clarify the differen ce between variances and compliance schedules before proposing any changes. Modified water quality-based effluent limitations for individual dischargers are allo wed in both cases and have to be reviewed and revised as needed every th ree to five years. Howeve r, a variance cannot be used

where treatment does not exist or NPDES sources are insignificant. We recommend that EPA consider developing “restoration standa rds” to improve water quality for pollutants like PCBs which would take a long time to re mediate. This approach could avoid the necessity to consider removing uses.

Triennial Reviews : The CWA and the Water Quality Standards Regulation require that

states and authorized tribes review and m odify as necessary their standards once every three years. This pr ocess is very techni cally challenging and time consuming, and may not be feasible, as proposed in these re visions, on an every three year basis. A comprehensive process to identify/organize the issues, consider stakeholder input, finalize the issues to be proposed and adopted, and go through public comment would realistically take a much longer time than three years. Also, states have to comply withadditional state requirements on providing imp act statements, as well as prioritizing and narrowing the rule scope due to restrictions on available resources and information.

Court Decisions : Definition of water quality standards : We would recommend that EPA consider including the Methods Document , developed pursuant to Sections 303(d) and 305(b), as a component of the WQS. The Methods Document explains how the data collected is used to assess attainment of the various designated uses.

Submission of public participation records to EPA : 40 C.F.R. 131.20(c) requires states to submit their water quality standards revisions and any bases regarding the revisions. EPA should issue guidance to clarify what is needed as the bases for the revisions.

Again, thank you for the opportunity to respond to “ Stakeholder Input: Revisions to Water Quality Standards Regulations ” (EPA-HQ-OW-2010-0606). As the revisions to these regulations progress, EPA is urged to actively consult with the states and tribes, particularly regarding the feasibility of implementation. Also, it would be prudent for EPA to fully evaluate the state/tribal sta ffing and other resource needs required to implement any revisions, and consider wh at additional federal funding and technical

assistance would be made available to m eet these needs. Please contact Debra Hammond, Chief, Bureau of Water Quality Standards and Assessment at 609-777-1753 if you have any questions regarding these comments.

Sincerely,

Leslie J. McGeorge, M.S.P.H.,

Administrator

cc: John Plonski, Assi stant Commissioner, Water Resources Management Debra Hammond, Bureau Chief, Wate r Quality Standards and Assessment