September 8, 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 Via E-Mail: SHPDcomments@epa.gov

Re: Water Quality Standards Regulatory Changes; EPA-HQ-OW-2010-0606

Dear Mr. Gardner:

Northwest Environmental Advocates (NWEA) appreciates this opportunity to comment on the

U.S. Environmental Protection Agency’s proposed changes to its water quality standards

regulations. Generally we support EPA’s proposals. We urge EPA, in revising its regulations, to

consider its limited federal role under the Clean Water Act in implementing nonpoint source

controls and to view its role in establishing the requirements for and taking action on states’

water quality standards as an important consideration when addressing this significant source of

pollution to the nation’s waters.

A. Antidegradation

We strongly support EPA’s current regulation that requires states to identify and submit

implementation methods for their antidegradation policies. While there are some regulations that

work well without such implementation methods being spelled out, antidegradation is not one of

them. In fact, despite its importance to water quality protection and restoration, and EPA’s

clarity that antidegradation is a part of water quality standards, antidegradation policies are

routinely ignored by states. The proposed regulations offer EPA a significant opportunity to

change the status quo and to ensure that states use the antidegradation policies to achieve the

goals of the Clean Water Act.

We see several problems with the current regulations with regard to states’ attention to

antidegradation requirements and whether EPA takes this issue seriously when it acts on state

submissions of new or revised water quality standards. These problems are as follows: 

(1) States do not prepare implementation methods or do so only for some aspects of

the antidegradation policy, such as NPDES sources or just Tier II reviews. In

particular, Tier I protection is ignored or seen as just a part of Tier II reviews; 
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

September 8, 2010

Page 2

DEQ staff paraphrased comments by Larry Knudsen, the Attorney General for 1

DEQ, stating that “Oregon determines water quality classification on a parameter by parameter

basis.” Memorandum from Avis Newell, Oregon Department of Environmental Quality, to

Outstanding Resource Waters Work Group, Re: Notes from the April 21, 1998 Outstanding

(2) Implementation methods that are not established by State rule, but instead in

guidance, are subject to change at any time, without any public review or EPA

action, and apply only to the water quality regulatory agency when, as part of

water quality standards, the implementation methods should apply to all agencies

seeking to apply standards to activities they regulate (e.g., federal, forestry, and

agricultural agencies); 

(3) States’ use of the categorical method rather than a pollutant-by-pollutant approach

to determine the status of their waters can and does have the effect of virtually

eliminating Tier II of the antidegradation policy. This, in turn, can also eliminate

Tier III if a State limits Tier III to only those waters that are determined to be high

quality waters; and 

(4) States routinely ignore policies and implementation methods they have adopted.

In particular, NWEA is very concerned with the disregard displayed by nearly all states

concerning the requirement to protect existing uses under Tier I. Without any implementation

methods established, this cornerstone of the water quality program goes ignored. As a result,

states have allowed 35 years of degradation and localized extirpations, and even extinctions, of

uses with impunity. States routinely ignore the “floor” of water quality, despite EPA’s clarity on

the importance of maintaining this floor. 

We support EPA’s proposal to require antidegradation implementation methods to be adopted

into state rules because, as mentioned above, failure to include these essential methods in rules

makes them inapplicable to any other agency than the water quality regulatory agency and, in

addition, allows changes to be made without any public or EPA input or oversight. In addition,

to ensure adequate protection of those waters with higher quality than required by standards and

consistency across the nation, we urge EPA to require states to use a parameter-by-parameter

approach to designating high quality waters subject to Tier II reviews. By way of example of

both the importance of putting implementation methods into rules and the importance of the

parameter-by-parameter approach, we provide EPA with the story of how Oregon changed from

a parameter-by-parameter approach to determining which waters were high quality to a

categorical approach. 

Historically Oregon used a parameter-by-parameter method to identify its high quality waters.

1
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

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Page 3

Resource Waters Work Group, April 30, 1998 at 1 (available from NWEA).

Oregon Department of Environmental Quality, Response to Comments on 2

Antidegradation Implementation Internal Management Directive, at 37 (Northwest

Environmental Advocates’ comments), undated, available from NWEA. 

Id. at 4 (EPA comments). 3

Then, in preparing a draft internal guidance document for antidegradation implementation, the

staff changed this long-standing policy to use of a categorical approach. Even EPA commented

2

that use of the categorical approach left few waters subject to Tier II protections. Other than the 3

guidance document in which the new policy was set out, without its having been identified as a

change from previous practice, no documents were generated in which the change was identified,

the public was invited to comment, the Oregon Environmental Quality Commission was asked to

weigh in and approve, EPA was asked to approve, or the ramifications were explained. It was

just done by staff.

As you can see from this example, this significant change to Oregon’s water quality standards

could be made without rulemaking, without public input, without approval by Oregon’s

Environmental Quality Commission, and without EPA action because EPA has not required

antidegradation implementation methods to be a part of rulemaking. It is not even clear that

when EPA commented on the guidance EPA understood that Oregon was making a change to its

existing policy. The result was that state agency staff virtually eliminated any high quality waters

in Oregon because nearly all waters in the state violate some water quality standard, in most

instances temperature. This change in the interpretation of the antidegradation policy had further

ramifications because Oregon’s rules require a waterbody to be of “high quality” in order to be

considered a candidate for Tier III protection. As a result of this change, it is unlikely that any

waterbody in Oregon is now a candidate for this level of protection. This example demonstrates

both why implementation methods must be adopted by rule, not guidance, as well as why EPA

should require all states to use a parameter-by-parameter approach to designating high quality

waters. Given states’ near uniform disregard for applying Tier I protections, designation as a

high quality water with its Tier II review is an important provision that states should not be

allowed to negate. After all, there is no justification for not evaluating an increase in a pollutant

in a high quality water that is known to affect human health just because the waterbody happens

to be identified as impaired for a pollutant that affects aquatic life alone. 

1. Tier 1 Protections

We urge EPA to consider Tier I protection implementation methods to be one of the most

pressing needs in water quality regulation. At a minimum, it is essential that EPA make clear to

states that Tier I does not only apply in the context of Tier II reviews. Although EPA has been
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

September 8, 2010

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EPA Questions and Answers on Antidegradation 1985. 4

Memorandum, from Nina Bell, Northwest Environmental Advocates to DEQ 5

Staff, “Using Tier I Antidegradation Policy Requirements to Address Gaps in Water Quality

Protection for Oregon’s Waters,” June 7, 2010.

clear in the past that Tier I protections apply to all waters, states continue to disregard this policy.

a. Establishing Tier I Implementation Methods

Tier I protections, as EPA has stated consistently and clearly, establish the floor of water quality

standards, the condition below which water quality cannot drop: “‘the absolute floor of water

quality” providing “a minimum level of protection to all waters.’” Yet few states have any 4

implementation method that addresses the need to protect existing uses and the water quality

necessary to support them. In many instances, in the 35 years since existing uses were

established, water quality and the uses dependent upon it have been degraded, uses have been

extirpated, and some have even become extinct. Not only is Tier I not used to protect existing

uses in the regulatory decisions states make but the Clean Water Act’s requirement to develop

Total Maximum Daily Loads (TMDLs) become necessary to restore those existing uses if they

have been removed or impaired. TMDLs, however, are not the only solution to degraded water

quality and maintaining existing uses, nor should they be. TMDLs take considerable time and

public resources to develop and implementation of TMDLs, particularly for nonpoint sources, is

most often disregarded. At best it can be said implementation is very slow. Even in a state, such

as Oregon, which is developing a more prescriptive approach to TMDLs to address lagging

nonpoint source implementation, TMDLs cannot close the gap between the requirement to

protect existing uses and the reality that they are being removed and impaired. In other words,

EPA needs to look to water quality standards as a method of ensuring existing use protection

rather than the current default which is to wait until existing uses are impaired and then to wait

for a TMDL to be developed. Moreover, because Tier I applies to all waters, according to EPA,

it can and should be used to protect both higher quality waters as well as to improve lower

quality waters before a TMDL is completed, approved, and implemented. 

As demonstrated in the attached memorandum, there would be significant benefits to states’ 5

adopting clear and specific antidegradation requirements for nonpoint sources as part of Tier I

antidegradation policies and implementation methods. Such requirements would not have to

wait until a TMDL is completed and, if incorporated into a State’s water quality standards rules,

would constitute water quality standards that other agencies must meet. By requiring Tier I

protections – through implementation methods – for all waters, EPA would ensure that several

gaps would be filled. First, waters identified as needing a TMDL would be subject to some

minimum level of protection (restoration) in the time period between rule adoption and TMDL

completion. Currently, states are not required to have provide any level of protection to impaired
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

September 8, 2010

Page 5

waters until a TMDL is completed, a policy that has no rational basis, particularly for incremental

water quality improvements such as those that apply to nonpoint sources. While the TMDL may

demonstrate that more actions beyond basic controls are necessary, there are certain controls that

are certain to be needed. Waiting for a TMDL to be completed before taking those basic

pollution control actions merely postpones attainment of water quality standards and increases

the risk of local extirpations of uses. 

The second gap this approach would address are waters that violate narrative criteria but that

have not been listed on the 303(d) list as impaired and therefore will not be scheduled for a

TMDL. While ideally such waters would be identified and listed, the reality is that many are not

whether due to lagging efforts on biocriteria development or states that simply have not made the

effort to interpret how they will apply their narrative criteria. In this case, while water quality is

impaired, and standards are not met, no pollution reduction actions will ever take place to restore

the impairment because no TMDL will be developed. However, a Tier I implementation method

that applies basic levels of water quality protection (restoration) to all waters would ensure that

some level of protection would be attained. While this is not a solution to states’ failure to

implement narrative criteria, it would bring actual water quality benefits.

Likewise, where water quality criteria are below levels at which toxic pollutants can be detected

and quantified, there will be no 303(d) listing and no TMDL developed even if water quality is

violating the criteria. Again, Oregon poses an perfect example of this phenomenon. Over half of

Oregon’s new human health criteria (based on 175 grams/day of fish consumption) will be below

the quantitation limit (QL) meaning that waters may well violate the criteria, but no pollution

reduction actions will be taken because there will be no listing and therefore no TMDL will be

required. 

Likewise, as the memorandum points out, there are no triggering mechanisms to protect,

maintain, or enhance water quality that is higher than the criteria in the following two situations:

(1) where water quality has eroded over the 35 years since 1975, most states have no mechanism

to identify and assess existing uses or to provide for their protection; and (2) where nonpoint

sources will lower water quality that current meets water quality criteria, there is no Tier II

mechanism to prevent further pollution. 

The solution to all five of the gaps identified above are explicit Tier I protections. Such

protections would be the minimum and, as explained, would not be sufficient in all cases, to

ensure the protection (and restoration) of existing uses and the water quality necessary to support

them. However, such protections would go a long way to improving and preserving water

quality. Because Tier I requirements are water quality standards, other agencies that establish

management practices for nonpoint sources would be required to meet them in developing

practices for activities under their jurisdiction. 
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

September 8, 2010

Page 6

Water Quality Antidegradation Implementation Guidance, Pennsylvania Dept. of 6

Envtl. Protection, November 29, 2003, available at http://www.elibrary.dep.state.pa.us/dsweb/

Get/Document-47704/391-0300-002.pdf.

Tier I implementation methods could range from general narrative requirements and performance

expectations to specific numeric provisions. For example, a Tier I requirement could be

continuous forested riparian buffers of a required minimum width to prevent excess

sedimentation and toxics associated with sediment, as well as to capture nutrient runoff. They

could include a variety of baseline nonpoint source controls. 

We urge EPA to adopt a requirement that states include Tier I protections in their water quality

standards rules and set a high bar for the explicit nature of those protections in order to give

meaning to the requirement. 

b. Identifying Existing Uses

Tier I also requires identification of existing uses in order to provide them with protection. We

are aware of only one state which requires the identification of existing uses. Pennsylvania has

guidance on identifying waters for existing use protection, evaluating existing uses, keeping track

of existing uses, upgrading existing uses into use designations. Elsewhere, in practice, if the 6

issue of existing uses is raised by a member of the public, the state agency defers to the current

actual uses claiming that it has no way of identifying what uses and water quality existed 35

years ago. States can use, in many, if not most, cases surveys, historic records, anecdotal

accounts, professional judgment, modeling, the health of species and the status of their

populations to ensure identification of existing uses and/or the water quality to support such uses. 

However, even when a State addresses the issue, which is rare, it will informally (i.e., in

guidance) adopt an impermissible requirement for establishing a use as “existing.” An example

of this is the State of Washington’s Use Attainability Analysis (UAA) guidance which substitutes

for existing uses phrases such as “uses that don’t exist,” and uses “occurring at a recent time.” 

This UAA Guidance also raises the important issue of who has the burden of proof. EPA should

make clear that the burden is not on the public to identify existing uses but rather on the state to

identify them where it intends to sanction some pollution-generating action.

2. Tier II Protections

Given the lax attitude demonstrated by states to Tier II protections over a long period of time, we

think that EPA should make clear that states must give meaning, in their antidegradation

implementation methods, to all situations that trigger its application. Without such a clear

understanding, states will continue to do what they believe is the minimum required. For Tier II

reviews, EPA should require that: 
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(1) All reasonable alternatives to the new or increased discharge or other loading

must be considered as part of a Tier 2 antidegradation analysis; 

(2) If a new or increased pollution loading is found necessary to accommodate

important social or economic development after a Tier II analysis, the least

polluting reasonable alternative must be used and permit limits will be set based

on the discharges that would be expected from use of the least polluting

alternative; 

(3) There be procedures for determining the potential alternatives to the proposed new

or increased discharge or other proposed activity that will increase pollution;

(4) Factors be identified that will be considered in determining when a proposed

polluting activity will accommodate important social or economic development

and the method for making that Tier II determination; 

(5) Tier II applies to NPDES permits, individual and general, as well as to 401

certifications and nonpoint source changes; 

(6) The state will prepare a written antidegradation Tier II analysis if antidegradation

is applicable to the decision to allow a new or increased load or explain in writing

why the new or increased loading fits within an exception to Tier II

antidegradation requirements if the state finds that such an exception is

applicable; and

(7) Public participation is meaningful and effective. 

Certainly the rule should, at a minimum, be clarified to require that state antidegradation rules

apply Tier II protection to protect all water bodies that support any significant human or aquatic

life uses. As discussed above, there is no basis for not providing the Tier II higher level of

protection for aquatic uses of a waterbody that happens to be degraded for human recreation. 

Likewise, a waterbody that impaired for aquatic life uses should have its recreational uses

protected. 

EPA should also revise and clarify the language in 40 C.F.R. § 131.12(a)(2) describing State

assurances to achieve all cost-effective and reasonable best management practices for nonpoint

source control. This wise policy is widely disregarded yet it remains one of EPA’s few methods

of forcing states to implement nonpoint source controls.

3. Tier III Protection

We believe that all states should have a clear process for designation of water subject to Tier III. 

However, Northwest Environmental Advocates also strongly believes that it is a waste of public

resources and misleading to the public to allow designations of waters for this level of protection

if there is no method of assuring the protection. Therefore, at a minimum, waters that are

designated need to have an implementation plan to assure no additional pollutant loading is

allowed, from point or nonpoint sources. Alternatively or in addition, waters designated for Tier
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September 8, 2010

Page 8

See Letter from Michael Llewelyn, Oregon Department of Environmental Quality, 7

to Pete Frost, National Wildlife Federation, regarding Outstanding Resource Water designations,

August 25, 1998 (available from NWEA).

III protection should have protections that are written into the water quality standards, much as

the description of Tier I protections described above. Finally, as mentioned above, if EPA

continues to allow states to avoid a parameter-by-parameter designation for high quality waters,

some states, such as Oregon, will have precluded Tier III protections for any water. Just as with 7

Tier II protections, there is no policy rationale for lumping protections for aquatic life or human

health together, nor is there any policy rationale for allowing unlimited additional pollution of

one pollutant merely because a waterbody is already polluted with a different pollutant, even if

they both affect the same use. There is simply no reason, this many decades after passage of the

Act, that EPA might conclude it could ease up on water quality protection.

B. Administrator’s Determination

We disagree with EPA’s proposal to narrowly interpret the already clear statutory language on

Administrator’s determinations. It is clear that EPA is seeking to defeat, through new

regulations, any future attempts by environmental organizations to convince federal courts that

EPA is obligated to prepare water quality standards based on indications that EPA has

determined existing standards are not sufficient to meet the requirements of Section 303. While

in the short term, trying to prevent such litigation may be superficially appealing to the agency, it

is tremendously short-sighted. In reality, the citizen’s suit has played an important role in

enhancing EPA’s ability to protect and restore water quality, a fact that even EPA should be able

to acknowledge in casting its eye back over the last few decades. Allowing citizens to make a

claim that EPA should act, because it has already drawn a technical conclusion elsewhere, will

likewise enhance water quality protections in the future. 

C. Uses

EPA proposes to make clear that CWA goal uses are attainable unless otherwise demonstrated, a

position that we believe is already stated in the regulations. However, we support making it

more clear. We further support requiring the Highest Attainable Use closest to the goal being

specified and adopted. Naturally, at this stage it is not clear what constitutes HAU. We urge

EPA to maintain and clarify to the extent possible the importance of existing use support in this

context. 

D. Variances

As water quality criteria become more stringent and as states begin to issue NPDES permits that
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September 8, 2010

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Reference to “EPA” views in the context of Oregon’s toxic water quality

8

standards triennial review generally refer to EPA Region X. We do not know the degree to

which EPA headquarters has been consulted on these views, only that it has been involved in

some discussions.

Water Quality Standards Regulation Proposed Rule, hereinafter “Advance Notice 9

of Proposed Rulemaking” (ANPRM), 63 Fed. Reg. 36741, July 7, 1998, at 36759. 

better comply with existing EPA regulations and the statute, the role of variances will become

more important. We support EPA’s current variance policy that they are changes to water quality

standards that require EPA action. Overall, from a policy perspective, we believe that EPA

should ensure that the outcome of variances and that of compliance schedules be as close as they

can be from a water quality standpoint. The primary difference should be the fact that a source

will only choose a compliance schedule when either it cannot obtain a variance due to the

requirements of 40 C.F.R. § 131.10(g) and (h) and/or a source does not know that it can meet an

effluent quality certain by a date certain, as required by EPA’s compliance schedule regulations. 

In other words, variances should not be an opportunity for a source to avoid minimizing its

pollution contribution to the maximum extent possible simply because it is unable to commit to

an outcome and date certain. EPA should use this rulemaking as an opportunity to changes its 

current policy that, with the exception of the Great Lakes Initiative (GLI) rules, allows sources to

avoid making improvements. 

EPA should make clear that states must use the correct process for developing variances, namely

to treat them in the same fashion as any other change in standards. Public notice and

participation requirements are important in this regard. In light of proposals in Oregon that have

advanced the idea that states may adopt variances and call them something other than a

“variance,” we believe that EPA should make clear that a variance must, in fact, be called a

variance to be one. The reason for this is simple: in order for the public notice to be meaningful

to the public, it must be clear that the state regulatory agency is proposing to temporarily suspend

otherwise applicable water quality criteria. It is our impression that in the context mentioned,

EPA has told Oregon that it may call a variance a “pollution reduction plan.” It should go 8

without saying that using that phrase would not signal that the state intended to change the

standards. 

1. Reliance on GLI for Non-GLI States’ Variance Rulemaking

Our recent experience in Oregon with regard to developing variance rules is troubling. EPA has

signaled to the state that it can cherry pick aspects of the GLI that are most advantageous to state

agencies and dischargers while ignoring those aspects that provide concurrent water quality

protections. In the GLI these aspects are balanced. EPA itself has specifically cautioned against

using portions of the GLI without considering the appropriate context. The reason becomes 9
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Page 10

GLI Pt. 132, App F, Procedure 2 §B. 10

GLI Pt. 132, App F, Procedure 2 §F.4. 11

GLI Pt. 132, App F, Procedure 2 §C.2.b. 12

GLI Pt. 132, App F, Procedure 2 §C.2.b. 13

GLI Pt. 132, App F, Procedure 2 §F.2. 14

GLI Pt. 132, App F, Procedure 2 §C.2.a. 15

GLI Pt. 132, App F, Procedure 2 §A.1. 16

GLI Pt. 132, App F, Procedure 2 §G.

17

GLI Pt. 132, App F, Procedure 3 §B.3.b.i & ii. 18

clear when one compares the proposed provisions of Oregon’s variance procedure with the GLI. 

The GLI provisions related to variances require numerous protective aspects that Oregon is not

proposing to include in its rules, such as: a mandatory three-year review; a permit reopener

10

provision; a requirement that the permittee characterize the extent of any increased risk to 11

human health and the environment from granting the variance compared to the underlying water

quality standards; a requirement that the State conclude that such an increased risk is consistent 12

with protection of public health, safety, and welfare; a requirement for reasonable progress 13

towards attaining standards; an explicit reference to meeting the antidegradation policy; a 14 15

prohibition against variances for new or recommencing dischargers; and a requirement that all 16

conditions be incorporated into the permit of the applicant seeking the variance. Instead, 17

Oregon proposes to use portions of the GLI that would make issuing variances less onerous –

such as interpreting requirements related to nonpoint sources as only those under the control of

the source seeking the variance – without concurrently ensuring appropriate environmental and

human health protections. This is all apparently with EPA’s sanction.

Moreover, under the GLI, NPDES sources face a host of restrictions that are an important

backdrop to the GLI variance procedures, restrictions that are not true in Oregon. Specifically,

the GLI limits the expected load reductions from nonpoint sources that states can assume in

issuing TMDLs. The GLI requires that these load allocations be set at existing pollutant loadings

if changes, i.e. reductions, are not expected to occur. In other words, TMDLs issued in GLI 18

states are not allowed to factor unrealistic and unexpected pollutant load reductions from

nonpoint sources, thereby increasing expected load reductions from point sources. In contrast,

Oregon TMDLs routinely assume significant reductions by nonpoint sources in establishing

wasteload allocations. Similarly, TMDLs in GLI states must account for accumulation of toxics
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Page 11

GLI Pt. 132, App F, Procedure 3 §B.7. 19

GLI Pt. 132, App F, Procedure 3 §C.1. 20

See EPA Coordinating CSO Long Term Planning with Water Quality Standards 21

Reviews (hereinafter “CSO Guidance”) 2001 at 34; EPA Guidance for State Implementation of

Water Quality Standards for Section 303(c) at 6; EPA Definition of Water Quality Standards

Terms 1979 at 1; EPA National Assessment of State Variance Procedures 1990 at 1. 

GLI Pt. 132, App F, Procedure 2 §B; EPA CSO Guidance 2001 at 34. 22

40 CFR § 131.20(a); GLI Pt. 132, App F, Procedure 2 §B; EPA CSO Guidance

23

2001 at 34; EPA Water Quality Standards Handbook 1993 at 5.3; GLI SID Sec. VIII.B.2.c;

ANPRM at 36759; EPA Three-Year Water Quality Standard Reviews 1983 at 1. 

See GLI Pt. 132, App F, Procedure 2 §F.4, GLI SID Sec. VIII.B.2.c. 

24

in sediments and there are severe restrictions on mixing zones for bioaccumulative chemicals of 19

concern among other stringent provisions that apply to NPDES dischargers. Despite these 20

restrictions that militate in favor of issuing variances in GLI states, EPA has signaled to Oregon

that it may omit the restrictions while relying on the GLI to issue variances that are longer than

three years (in fact would carry with any administrative extension no matter how long), omit

control of nonpoint sources, etc.

2. Time Frame for Variances

EPA has a long history of limiting the time frame for variances and, where they exceed three

years, of requiring them to be reviewed during the triennial reviews. EPA has consistently

defined variances as lasting for three years, sometimes up to five. Where EPA has allowed 21

variances to last beyond three years, it has not allowed them to be longer than five years.

22

Where a variance is allowed to go beyond three years, a three-year review from the date of the

last triennial review submission to EPA has been required. In order that this triennial review be 23

meaningful, where a variance is allowed to go beyond three years, a re-opener clause has been

required in associated NPDES permits. However, in Oregon, EPA has signaled not only that 24

the state may adopt a variance procedure that allows a five-year variance without a triennial

review and without a requirement to gather information to ensure that a triennial review would be

meaningful, but it has also apparently given the state the green light to adopt a variance rule that

would allow the variance to run with any administrative extension of the NPDES permit. This is

an outrageous and unwarranted loophole in water quality standards. To allow an unlimited time

period for variances – to date, nobody has established a method of preventing an unlimited
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Page 12

EPA CSO Guidance 2001 at 34. 25

GLI Pt. 132, App F, Procedure 2 §H; ANPRM at 36759. 26

40 C.F.R. § 131.20(a).

27

EPA Water Quality Standards Handbook at 5.3; EPA Economic Guidance for 28

Water Quality Standards 1995 at 1-3. 

EPA Water Quality Standards Handbook; EPA Questions & Answers on 29

Antidegradation 1985. 

40 C.F.R. § 131.10. 30

administrative extension in the face of a State unwilling to issue a new NPDES permit – when

defining variances as “short term” makes a mockery of the entire process. Moreover, it flies in

the face of the requirements of 40 C.F.R. § 131.20(a) that require re-examination of

nonconforming uses every three years. Nonetheless, EPA has indicated this is acceptable. EPA

should make clear that such a policy is not an acceptable time frame for a temporary variance in

its proposed rulemaking.

With regard to the existing requirement that states review noncomplying uses in triennial review,

EPA should ensure that this requirement is meaningful by ensuring that the variance holder

obtains, and makes public, information that can be used in that review. (See “reasonable

progress” section below.) For example, EPA’s conditions of a variance for CSO-affected waters

emphasizes the importance of obtaining new information. The GLI also explicitly notes that a 25

renewal of a variance is subject to all of the same findings and procedures as an original

variance. EPA regulations require the triennial re-examination of waterbodies with 26 27

downgraded uses but to our knowledge no state has ever engaged in this review.

3. Existing Use Protection in Variances

EPA has stated repeatedly that variances are subject to the “same substantive and procedural

requirements as removing a designated use.” One of these provisions is to ensure the 28

protection of existing uses. This requirement to protect existing uses in the issuance of variances

derives from several sources. First, existing use protection is the floor of water quality, below

which State standards may not go and variances are changes to water quality standards. This is

29

encoded in the requirement to classify existing uses as well as the antidegradation provisions to 30
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40 C.F.R. § 131.12. 31

ANPRM at 36752. 32

Id. 

33

EPA CSO Guidance 2001 at 34, citing 40 C.F.R. § 131.10(h)(1); ANPRM at 34

36759, 36760. 

EPA CSO Guidance 2001 at 34. 35

Id. at 35. 36

EPA Questions & Answers on Antidegradation. 37

EPA Water Quality Standards Handbook. 38

GLI Pt. 132, App F, Procedure 2 §C.2.a; GLI SID Sec. VIII.B.3.c. 

39

protect those uses , which according to EPA must be read together. Existing use protection is 31 32

specifically noted, twice, in EPA regulations concerning the removal of designated uses, the same

provision that is used for variances. EPA notes that the protection of existing uses is a sitespecific exercise, which is wholly consistent with the issuance of variances. EPA considers 33

protection of existing uses as essential in issuing variances. EPA notes that it is the necessity of 34

preserving existing uses, as well as making reasonable progress towards ultimate attainment, that

requires the conditions of a variance to be set as close as possible to the designated uses and

“always retained at the level needed to preserve the existing use.” These conditions include 35

various prohibitions, control requirements, monitoring, and evaluation. The requirement to

36

protect existing uses pursuant to the antidegradation policy applies during triennial reviews/water

quality standards changes, of which a variance is one as well as the issuance of NPDES 37

permits. Last, the six factors of 40 C.F.R. §131.10(g) cannot be read outside the context of the 38

text of §131.10(g), of §131.10(h), and of the antidegradation policy. Similarly, the GLI explicitly

requires that in addition to the six factors, the variance seeker show the antidegradation

requirements have been met. Notwithstanding the clarity in EPA’s position, as set out above, 39

we have been led to believe recently that EPA may have a more ambiguous view of this issue. 

We urge EPA to clarify that under no circumstances may a variance be used in a way that

provides less than full support for existing uses. 

In addition, EPA should make clear that permits issued pursuant to variances must still comply
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

September 8, 2010

Page 14

EPA Guidance for State Implementation of Water Quality Standards for CWA

40

Section 303(c) (2) (B)1988 at 6. 

EPA Definition of Water Quality Standards Terms 1979 at 1. 41

EPA Water Quality Standards Handbook at 5.3; EPA Economic Guidance at 1-3; 42

EPA CSO Guidance 2001 at 34. 

40 C.F.R. § 131.10(h)(2). 43

ANPRM at 36760. 44

GLI Pt. 132, App F, Procedure 2 § A.3. 45

EPA Interpretation of Federal Antidegradation Regulatory Requirement 1994 at 2. 46

In a similar vein, EPA notes that in issuing variances, the economic impacts that can be

considered are those that result from treatment beyond that required by technology-based

regulations. This includes both technology-based limits on point source discharges as well as

BMPs to nonpoint sources. EPA Economic Guidance for Water Quality Standards 1995 at 1-1. 

with antidegradation requirements, including Tier I existing use protection. The reason for this

40

is clear: A variance applies to the applicable criterion alone and does not modify the application

of the existing use and designated use provisions of the water quality standard.41

4. Requirement for All Cost-Effective and Reasonable Nonpoint Source

Controls

As mentioned above, EPA has stated repeatedly that variances are subject to the “same

substantive and procedural requirements as removing a designated use.” The designated use 42

removal provisions used for variances require the use of “all cost-effective and reasonable

nonpoint source controls.” This provision applies to issuance of a variance as a temporary 43

removal of designated uses governed by the same EPA regulations. In the GLI, this 44

requirement was interpreted to mean that Best Management Practices (BMPs) must be

implemented (1) by the discharger (2) before a variance is granted, two requirements that are

specific to the GLI. In contrast, the national regulations that apply to non-GLI states are

45

consistent with, and identical to, the Tier II antidegradation protection language which applies to

nonpoint sources outside the control of any individual point sources. Because the use removal 46

provisions apply to waterbodies and variances apply only to the specific discharger seeking the

temporary suspension of one or more standards or criteria, a state should not be able to suspend

requirements of the water quality standards on other sources – point or nonpoint – as an outcome

of the variance. Therefore, the BMP requirements of 40 C.F.R. § 131.10(h)(2) apply to all
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

September 8, 2010

Page 15

Id. at 2 (emphasis added).

47

See, e.g., ANPRM at 36759; EPA National Assessment of State Variance

48

Procedures 1990 at 1. 

ANPRM at 36759. 49

GLI Pt. 132, App F, Procedure 2 §A; GLI preamble. 50

GLI Preamble at 15,376 (emphasis added). 51

GLI Procedure 2, § A. 52

sources in the consideration of a variance application, not just the nonpoint sources under the

control of the permittee seeking the variance. In addition, applying the GLI, rather than current

national regulations, to non-GLI states causes a conflict because of the second of the two GLIspecific requirements. The GLI BMP requirements for permittees seeking variances must be met

prior to issuance of the variance, while the clear language of 40 C.F.R. § 131.10(h)(2) discusses

the State’s finding that designated uses “will be attained . . .by implementing [nonpoint source

controls],” a finding related to future attainability. While a state is not required to have

enforceable controls on nonpoint sources, where it does have such controls, they must be

implemented as part of the Tier II protections. The same requirement should apply to removing 47

designated uses through the provisions of 40 C.F.R. § 131.10. This result is also good policy as

it provides EPA with a mechanism to ensure that states control nonpoint sources.

5. Multiple Source Variances. 

Every EPA guidance document discussing variances has referred to them as specific to individual

dischargers. One reason is that a variance must establish a replacement criterion that is as close

48

to the underlying applicable criterion as possible which by its very nature is a site-specific

finding. (Despite the obvious need for a replacement criterion, given that a variance is a change 49

to a water quality standard, some states ignore this and instead merely issue a water quality based

effluent limit for the source seeking the variance. In Oregon, EPA appears to have agreed to this

approach.) Even the GLI does not sanction multiple source variances but explicitly discusses

individual permit holders. For example, the preamble describes Procedure 2 as allowing 50

variances “applicable to individual existing Great Lakes dischargers.” In describing the 51

applicability of Procedure 2, the GLI specifies that a variance “applies only to the permittee

requesting the variance.” In fact, every other provision in the GLI makes reference to 52

variances’ applying to individual permittees (i.e., conditions to grant a variance, submission of a
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

September 8, 2010

Page 16

GLI at §§ C, D, E, F. 53

ANPRM at 36759. 54

GLI Pt. 132, App F, Procedure 2 §A.1. 55

EPA Water Quality Standards Handbook at 5.3; ANPRM at 36758-60. 56

variance application, public notice, and the final decision on a variance request). Elsewhere, 53

however, EPA has indicated that multiple source variances might be allowed under the GLI,54

causing conflict with all of its other pronouncements and confusion about how such variances

might be issued and still remain consistent with EPA regulations and guidance. In Michigan,

EPA settled a lawsuit challenging EPA’s approval of a multi-source variance for mercury with an

agreement the state would establish the waste load allocations for permit holders on an individual

basis, while allowing the determination that a variance was needed to be done for more than one

permittee. It is confusing and misleading for EPA to contradict itself. We urge that EPA

continue its existing policy of making variances specific to individual permittees.

6. Variances for New Sources. 

Another area of ambiguity is the use of variances for new sources. The GLI prohibits the

application for variances to new or recommencing sources. Aside from the GLI, we have not 55

been able to find EPA policy statements with regard to the use of variances by new sources. We

do, however, think that EPA policy should preclude this use. New sources should only be

allowed to discharge to public waters if they do not make existing pollution problems worse. By

definition, a source that requires a variance is making water unsafe for human health and/or

aquatic life and, by definition, a new source will make clean-up to acceptable levels more

difficult. These new sources must be made to adopt the most advanced technology rather than

contributing to the situation in which pollution control technology remains stagnant. Otherwise,

there the technology-forcing attributes of the water quality-based approach to pollution regulation

will be undermined to say nothing of the state of the nation’s water quality.

7. Reasonable Progress Towards Attainment and Variance Renewal. 

EPA has stated that it believes variances can be used to implement protection actions, assess their

results, and study the underlying water quality problem to better understand it. This is similar 56

to stating that a variance should be more like a compliance schedule rather than a simple “get out

of jail” card. We support this approach. EPA should use its proposed regulations to make

variances more similar to compliance schedules, with the difference being that the latter will only

be used by permittees able to commit to a date certain by which it can meet water quality-based
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

September 8, 2010

Page 17

See ANPRM at 36759. 57

ANPRM at 36759; GLI.. 

58

ANPRM at 36759. 59

EPA National Assessment of State Variance Procedures 1990 at 7. 60

effluent limits certain. In order that this policy may be carried out, conditions for pollution

control and monitoring must be required to be included in the variance and incorporated into the

applicable NPDES permit. Frankly, unless there are other major changes anticipated – either to

dramatically and quickly improve water quality or to change the water quality standards

themselves – this approach is the only way to give meaning to the stated notion that variances are

“short-term” exemptions from meeting standards. 

EPA should also ensure that the required triennial review is used to evaluate whether the

conditions of the variance have been met and the conditions the variance was based upon still

apply. Renewal should not be automatic but, rather, requires a new affirmative showing by the 57

applicant, consistent with existing EPA policy. If the permittee is not required to collect and 58

report information on the variance conditions and the underlying water quality problem, the state

will not have sufficient information upon which to make any assessments of how to ensure that

variances are not renewed ad infinitum.

8. A Variance Must Include a Replacement Criterion. 

EPA’s proposed rules should include making clear that because a variance is a change to the

water quality standards, it must include a criterion that applies during the pendency of the

variance. A WQBEL that is incorporated into the relevant NPDES permit cannot itself serve as a

replacement criterion. In fact, according to EPA, it is contrary to the requirements of sections 59

301(b)(1)(C) and 402(a)(1) of the CWA to issue a variance to an effluent limit.60

E. Triennial Reviews

We support EPA’s proposal to require states to engage in a triennial review scoping exercise. 

EPA should include in this proposal that there are some nonnegotiable aspects to each and every

triennial review. Specifically, EPA must make it clear that if states ignore the 1987 Clean Water

Act amendments regarding the requirement to update toxics criteria at every triennial review,

states can expect EPA will do it in a timely manner. Since most states do not conduct triennial

reviews on a triennial basis, EPA should automatically place states into the National Toxics Rule

(to the extent required) when states fail to conduct timely triennial reviews or fail to update toxic
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

September 8, 2010

Page 18

40 C.F.R. § 131.20(a). 

61

EPA Powerpoint, Listening Session: Proposed Rulemaking to Revise the Water 62

Quality Standards Regulation, Office of Water, Office of Science and Technology, August 2010,

http://water.epa.gov/lawsregs/lawsguidance/wqs_listening.cfm#written, at 16. 

criteria at each triennial review. Current delays in updating toxics criteria are intolerable and

EPA has the ability to make this change with its regulations. EPA should also require that states

follow existing regulations that require “[a]ny water body segment with water quality standards

that do not include the uses specified in section 101(a)(2) of the Act shall be re-examined every

three years to determine if any new information has become available.” Since this rule already 61

exists and is treated as if it does not, EPA should use the opportunity of this rulemaking to clarify

that states will, in fact, be held to this provision.

F. Reflect Court Decisions

We support EPA’s incorporation of the three cited court decisions into its regulations to ensure

consistency between states and regions and with court opinions. We are concerned, however,

with the ambiguity of EPA’s briefing document which states, with regard to the Florida cases,

that it intends to “[r]evise the definition of ‘water quality standards’ at 40 CFR 131.3 to more

clearly define types of state/tribal provisions that need to be submitted to EPA for review and

action.” We presume that EPA intends to make its regulations conform with the court opinions, 62

not to attempt to avoid the result of those opinions. If so, we strongly support such action. All

too often, states have developed water quality standards that they submit to EPA for approval

while passing other rules, and issuing other guidance, that have the effect of taking away the

protections afforded by those standards. These other actions run the gamet, from 303(d) listing

methodologies, NPDES permitting loopholes, nonpoint source exemptions, etc. EPA does a

disservice to the public waters when it ignores these changes as fundamentally affecting the

water quality standards it is authorized and required to approve or replace.

We suggest that in addition to the cases cited, EPA also incorporate the results of Northwest

Environmental Advocates v. EPA, 268 F. Supp. 2d 1255, 1266-67 (D. Or. 2003) insofar as that

decision required EPA to ensure that where criteria apply to different waterways depending on

aquatic life cycle stages, the state must establish the time and place designations for the standards

to be effectively enforced. EPA itself included such time and place designations in establishing

standards for the State of Idaho. Both EPA, and the court in the above-cited decision, have noted

that without information on when and where criteria apply, these more protective criteria are

essentially without meaning.
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

September 8, 2010

Page 19

EPA Region X, “Water Quality Standards - Authorities, Definitions, and 63

Considerations,” January 13, 2009. 

G. Additional Comments

We urge EPA to address three additional items in its water quality standards regulations review:

(1) provisions that EPA currently considers not to be changes to water quality standards; (2)

environmental justice concerns; and (3) clarifying what it means to protect the most sensitive

beneficial use.

1. Defining What Constitutes a Water Quality Standard

In the context of assisting Oregon with developing new toxic criteria for the protection of human

health, EPA Region X prepared a document including the following section: 

Examples of Provisions that May Not be Considered Water Quality Standards:

• non-substantive provisions (provisions that are not integral to, and do not

modify, protections afforded by the designated uses, criteria, and

antidegration provisions)

• provisions that merely describe the sufficiency or reliability of

information/data necessary for the state to make an attainment decision

and do not change a level of protection (e.g., minimum sample size and

age of data requirements, sampling techniques, quality assurance/quality

control procedures)

• implementation provisions (point or nonpoint source)

• enforcement provisions

• listing policies63

In preparing this list of provisions that may not be considered by EPA to be water quality

standards, EPA fails to address the substantive manner in which many of these types of

provisions undermine or completely negate the application of water quality standards to a state’s

waters, contrary to the intent of the Clean Water Act. For example, under this approach, EPA

would approve a water quality standard even if a state adopted a rule that clearly stated the

standard was not to be used in NPDES permits or for control of nonpoint source pollution

because those provisions constitute “implementation provisions.” Yet, in doing so, a state would

completely negate the application of the standards to all pollution sources, leaving only the role

of standards in identifying impaired waters. Similarly, a state could pass a rule or establish

guidance that the standards will not be used for listing purposes and presumably EPA would

determine that those provisions were listing policies and therefore would neither constitute water

quality standards subject to EPA action nor would EPA take them into account when taking
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

September 8, 2010

Page 20

See, e.g., Bell, Environmental Injustice Posed by Oregon’s Water Quality

64

Standards, 20 J. Envtl. Law and Litigation 85 (2005), attached.

http://blog.epa.gov/administrator/2010/01/12/seven-priorities-for-epas-future/ 65

(emphasis added). 

action on the standards. In other words, under the policy articulated by Region X, EPA has no

method of ensuring that states cannot give protection with one hand and completely or partially

take away that protection with the other, the latter action not being subject to EPA review and

consideration of any sort. This is a nonsensical approach that EPA should remedy in this

rulemaking.

2. Incorporating Environmental Justice Concerns

In our opinion, EPA has talked for many years about environmental justice without doing 64

anything about it, namely incorporating the concern within its federal regulations. In that light, it

is interesting to see EPA Administrator Lisa Jackson’s recent memorandum to EPA employees

that included the following statement:

We have begun a new era of outreach and protection for communities historically

underrepresented in EPA decision-making. We are building strong working

relationships with tribes, communities of color, economically distressed cities and

towns, young people and others, but this is just a start. We must include

environmental justice principles in all of our decisions. This is an area that calls

for innovation and bold thinking, and I am challenging all of our employees to

bring vision and creativity to our programs. The protection of vulnerable

subpopulations is a top priority, especially with regard to children. Our

revitalized Children’s Health Office is bringing a new energy to safeguarding

children through all of our enforcement efforts. We will ensure that children’s

health protection continues to guide the path forward.65

Revising EPA’s water quality standards regulations offers EPA an excellent opportunity to put

Ms. Jackson’s challenge into action. It is well beyond the time when EPA should have

established clear expectations that when states adopt and revise water quality standards and

criteria, they must address vulnerable subpopulations. EPA could require that such issues be

addressed in the adoption of numeric criteria or that states be required to adopt implementation

methods in their water quality standards that explain how narrative criteria, along with

designated use support and Tier I of the antidegradation policy, will be used to achieve the goal. 

It is unacceptable that EPA has done nothing to date; now is its best opportunity.
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

September 8, 2010

Page 21

Memorandum from Cynthia Giles, EPA Assistant Administrator to National 66

Environmental Justice Advisory Council Members, Re: Request for Recommendations on Plan

EJ 2014 and Permitting Charge, July 27, 2010.

Id. at 3. 67

Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 11, 1994). 68

Exec. Order No. 13,045 (Apr. 27, 1997). 69

40 C.F.R. § 131.11(a)(1). 70

In addition, EPA recently issued a draft “Plan EJ 2014.” This memorandum stated in part,

66

with regard to rulemaking, that:

EPA’s authority to develop regulations that put our nation’s environmental laws

into effect is one of the Agency’s most important tools for protecting human

health and the environment. EPA’s regulatory authority combined with the

mandates of Executive Order 12898 charge EPA with responsibility to ensure

that, as we develop Agency actions, we consider communities that are

disproportionately impacted by pollution. By incorporating environmental justice

into its rulemaking process, EPA will more effectively protect overburdened

minority, low-income, and indigenous populations. Plan EJ 2014 calls upon EPA

to integrate environmental justice into the fabric of its rulemaking process. 

The Agency achieved a significant milestone in this effort in July 2010 by

issuing the Interim Guidance on Incorporating Environmental Justice During the

Development of an Action. This guidance calls upon Agency rule writers and

decision-makers to consider environmental justice throughout all phases of a

rule’s development – known as the Action Development Process (ADP) – from

the point of its inception through all the stages leading to promulgation and

implementation.67

Again, this appears to be a statement of EPA’s intent to put meaning into the Executive Orders

on Environmental Justice and To Protect Children’s Health. We urge EPA to do it now. 68 69

3. Clarifying What it Means to Protect the Most Sensitive Beneficial Use

When states adopt criteria, they are required to establish them in order to protect the most

sensitive beneficial uses. EPA’s regulations are much less clear about how to address 70
Thomas J. Gardner (EPA-HQ-OW-2010-0606)

September 8, 2010

Page 22

See EPA Water Quality Standards Regulation 63 Fed. Reg. 36,742, 36,749-50 71

(July 7, 1998).

Id.

72

categories within uses. EPA’s general view appears to be that so long as a use, such as

protection of human health, is designated generally, it need only be protected generally. 

71

However, where a state chooses to establish subcategories of uses, the state is obligated to

provide full protection for each subcategory. The EPA has used the problem of states’

designating uses broadly to complain that its existing regulations do not allow it to force such

states to be more specific. This is a problem that EPA and others have identified and therefore

72

it should be a candidate for EPA action in this proposed rulemaking. EPA need only clarify that

even where states choose to designate broadly, they must establish an administrative record

setting out the most sensitive beneficial uses in the broad categories and demonstrate that the

criteria adopted protect those most sensitive uses. In other words, this identified problem is

wholly in EPA’s hands to remedy.

We look forward to assisting EPA in any way to improve its water quality standards regulations.

Sincerely,

Nina Bell

Executive Director

Attachments: Memorandum, from Nina Bell, Northwest Environmental Advocates to DEQ

Staff, “Using Tier I Antidegradation Policy Requirements to Address Gaps in

Water Quality Protection for Oregon’s Waters,” June 7, 2010.

Bell, Environmental Injustice Posed by Oregon’s Water Quality Standards, 20 J.

Envtl. Law and Litigation 85 (2005).